STATE OF CLAD
Terms and Conditions.
To the fullest extent legally possible, all dealings between NZ Brick Distributors Limited Partnership (#2577554) and any Customer relating to any NZ Brick Distributors Limited Partnership “Products”, “Services” or transactions are subject to the following: General Terms & Conditions of Trade (“these Terms”) unless otherwise agreed in writing.
1. Payment: a) Customers in respect of which NZ Brick Distributors Limited Partnership has accepted an Application for 20 day Credit are to pay within 20 days from end of month of invoice without deduction b) All other sales are to be paid on the same day as sale without deduction c) credit card payments may attract a fee of up to 3% at NZ Brick Distributors Limited Partnership’s sole discretion.
2. Property and Security Interest: a) Property in Products shall not pass until payment in full (“full payment”) of all monies owed on any basis by the Customer. NZ Brick Distributors Limited Partnership reserves the right to take possession & dispose of Products as it sees fit at any time until full payment and the Customer grants permission to NZ Brick Distributors Limited Partnership to enter any property where any Product is in order to do so with such force as necessary b) Immediately upon delivery the Customer accepts liability for safe custody of Products c) Upon sale or disposition of any Products prior to full payment, the Customer agrees to deposit all proceeds in a separate bank account, agrees not to mix proceeds with any other monies and to hold all proceeds in trust for NZ Brick Distributors Limited Partnership & forthwith account to NZ Brick Distributors Limited Partnership therefore even if NZ Brick Distributors Limited Partnership may have granted any credit facility &/or time to pay d) Until full payment the Customer agrees (i) to keep all Products as fiduciary for NZ Brick Distributors Limited Partnership & store them in a manner which shows NZ Brick Distributors Limited Partnership as owner (ii) only to sell Products in the usual course of its business (iii) sale on terms, at cost or for less than cost shall not be “in the usual course” e) The Customer agrees that a certificate purporting to be signed by an officer of NZ Brick Distributors Limited Partnership identifying Products shall be conclusive evidence of NZ Brick Distributors Limited Partnership title thereto f) If the Customer uses any Products in any construction or project (“project”) the Customer agrees to hold such part of the proceeds of sale or disposition of the project which equals the value of the Products used in the project (and until payment, that part of the book debt commensurate thereto) upon trust for NZ Brick Distributors Limited Partnership until payment in full for those Products and of all monies owed to NZ Brick Distributors Limited Partnership. g) (i) the customer acknowledges and agrees that pursuant to this clause it grants in favour of NZ Brick Distributors Limited Partnership a security interest (as defined in and for the purpose of the Personal Property Security Act 1999 (“PPSA”) in the products and the proceeds of the sale of the products to secure payment of all amounts owing under the agreement. (ii) The customer undertakes to sign any further documents and/or provide any further information (which information the customer warrants to be complete, accurate and up-to-date in all aspects) which NZ Brick Distributors Limited Partnership may reasonably require to enable registration of a financial statement or a financial change statement on the Personal Properties Securities Register which will enable the security interest. (iii) The customer will not enter into any Security Agreement that permits any other person to register any security interest in respect of the products. (iv) The Customer undertakes not to register a financial change statement or a change demand in respect of the products without NZ Brick Distributors Limited Partnership prior written consent. (v) The Customer undertakes to give NZ Brick Distributors Limited Partnership not less than fourteen (14) day’s prior notice of any proposed change in the Customer’s name and/or any other change in the Customers details (including, but not limited to, the change of address, facsimile and telephone number, trading name or business practice).
3. Limitation Of Liability: a) The Customer agrees to limit any claim it makes to the cost of re-supply of equivalent Products or the supply of Services again b) NZ Brick Distributors Limited Partnership shall not be liable for any claim loss or expense arising which is made after 14 days from date of delivery of Product or Services (or at all once Products have been unpacked, on-sold or otherwise used or applied) after which there shall be deemed to have been unqualified acceptance c) NZ Brick Distributors Limited Partnership will not be liable for any contingent consequential direct indirect special or punitive damage arising whether due to negligence or otherwise & the Customer acknowledges this express limit of liability & agrees to limit any claim accordingly d) No other term, condition, agreement, warranty, representation or understanding whether express or implied other than these Terms, is made or given by NZ Brick Distributors Limited Partnership.
4. Exclusions: a) No dealing between NZ Brick Distributors Limited Partnership & the Customer shall be or be deemed to be a sale by sample b) If NZ Brick Distributors Limited Partnership publishes material concerning its business or prices, anything so published which is incompatible with these Terms is excluded c) The Customer will rely on its own knowledge & expertise in selecting any Product or Services for any purpose. Any advice or assistance given for or on behalf of NZ Brick Distributors Limited Partnership shall be accepted at the Customer’s risk & shall not be or be deemed given as expert or adviser nor to have been relied upon by the Customer or anyone claiming through the Customer.
5. Consumer Guarantees Act 1993 (“CGA”) a) The Customer acknowledges that it enters into the Agreement for the purpose of a business and the CGA is not applicable. Accordingly NZ Brick Distributors Limited Partnership gives no warranty or representation in relation to the condition or suitability of the Products or warranty or collateral warranty to title prior to or at any time during the continuance of the Agreement b) If the CGA is applicable to the Agreement and cannot be contracted out of, clause 5(a) will apply, but subject to the CGA, to the intent that the maximum extent of the warranties and representations given by NZ Brick Distributors Limited Partnership in that instance are the guarantees implied under the CGA.
6. Placement Of Orders: a) if any dispute arises over any order (& including any question of identity, authority or telephone, facsimile, computer or e-mail order) the internal records of NZ Brick Distributors Limited Partnership will be conclusive evidence of what was ordered b) each order placed shall be & be deemed a representation made by the Customer at the time that it is solvent & able to pay all of its debts as & when they fall due c) failure to pay in accordance with these Terms shall be & be deemed conclusive evidence that the Customer had no reasonable grounds for making the representations & that the representations were unconscionable, misleading and deceptive d) when an order is placed, the Customer shall inform NZ Brick Distributors Limited Partnership of any material facts which would or might reasonably affect any decision to accept the order &/ or grant credit in relation to it. Failure to do so shall create & be deemed to create an inequality of bargaining position constitute & be deemed the taking of an unfair advantage of NZ Brick Distributors Limited Partnership & be deemed to be unconscionable misleading and deceptive.
7. Purchase Price: a) All sales are made by NZ Brick Distributors Limited Partnership at its ruling price at time of delivery b) government imposts, Goods and Services Tax etc (“imposts”) will be paid by the Customer in addition to the ruling price c) any NZ Brick Distributors Limited Partnership price list, estimate or quote excludes imposts unless expressly noted thereon.
8. Ability to Supply: The Customer agrees that NZ Brick Distributors Limited Partnership will not be liable for any delay in supply or availability of any Products and NZ Brick Distributors Limited Partnership may allocate Products to Customers at its unfettered discretion: eg: if demand exceeds available supply.
9. Delivery: The Customer acknowledges & agrees a) NZ Brick Distributors Limited Partnership accepts no duty or responsibility for delivery but may elect to arrange delivery at its discretion without any liability & at the Customer’s costs & responsibility in all things b) NZ Brick Distributors Limited Partnership may elect to charge for any delivery c) it shall be deemed to have accepted delivery & liability for Products immediately NZ Brick Distributors Limited Partnership notifies the Customer that any Products are ready for collection or they are placed with a carrier or delivered to the Customer’s business premises or site whether attended or not d) a certificate purporting to be signed by an officer of NZ Brick Distributors Limited Partnership confirming delivery shall be conclusive evidence of delivery as shall any signed delivery docket e) NZ Brick Distributors Limited Partnership will not be liable for delay failure or inability to deliver any Products or perform any Services f) once notified that Products are ready for collection or delivery the Customer agrees to pay all costs of NZ Brick Distributors Limited Partnership in holding Products g) it shall provide reasonable and proper access to any site specified for delivery and Council approved crossing facilities h) to pay all costs and expenses arising from frustrated or delays in delivery i) to pay all damages or claims arising in the course of or after delivery whether to footpaths or any other property and including any fine or penalty and/or local authority claim to clean-up roads made dirty on departure j) NZ Brick Distributors Limited Partnership may delay, cancel or suspend any delivery for any period or cancel any part of any agreement for sale without liability to anyone.
10. Other Terms & Conditions: No terms & conditions sought to be imposed by the Customer upon NZ Brick Distributors Limited Partnership shall apply, unless otherwise agreed in writing.
11. Severability: Any part of these Terms may be severed without affecting any other part.
12. Interest will be charged on overdue accounts at the rate of 16% per annum.
13. Products and Services a) NZ Brick Distributors Limited Partnership disclaims any responsibility or liability relating to any Products or Services i) made or performed to designs, drawings, specifications &/or procedures etc or with materials which are provided or approved in part or in full by or on behalf of the Customer ii) utilised, stored, handled or maintained incorrectly or inappropriately b) the Customer agrees to check all Products and Services for compliance with all applicable standards & regulatory bodies before use, on-sale or application & to use or apply same in accordance therewith, with all manufacturers and/or NZ Brick Distributors Limited Partnership recommendations & directions as well as with good commercial practice c) Due to variations in colour and texture of materials (including natural materials) used in manufacture, no warranty, condition or guarantee is given by NZ Brick Distributors Limited Partnership that any Products shall correspond (in glaze, colour, texture, appearance, blend or otherwise) with any sample, display or any previous Products sold or displayed or any of the batch of similarly described Product d) NZ Brick Distributors Limited Partnership shall not be liable for any claim, loss or expense on any basis, which may be sustained or incurred by any person by reason of any alleged variation between the Products delivered and Products ordered e) Products may be damaged in transit or otherwise be or become unusable, so an allowance of +/- 5% is agreed.
14. Recovery Costs: The Customer will pay all the costs & expenses (on a full indemnity basis) incurred by NZ Brick Distributors Limited Partnership or its solicitors, legal advisers, mercantile agents & other parties acting on NZ Brick Distributors Limited Partnership’ behalf in respect of anything instituted or being considered against the Customer whether for debt, loss, damages, possession of any Products or otherwise.
15. Attornment: To give effect to the Customer’s obligation arising under these Terms, the Customer irrevocably appoints any solicitor of NZ Brick Distributors Limited Partnership as its attorney in all things.
16. Default: a) Upon any default or breach by the Customer of these Terms or any other dealing or arrangement with NZ Brick Distributors Limited Partnership, NZ Brick Distributors Limited Partnership may at its discretion (inter alia) retain all monies paid, call-up any monies unpaid, cease further deliveries, recover from the Customer all loss of profits arising & take immediate possession of any Product held by the Customer, without prejudice to any other rights & without being liable to any party b) The customer agrees not to commence or continue or permit to be commenced or continued through it any suit or action against NZ Brick Distributors Limited Partnership whilst the customer is in default under any part of these Terms or in any of its dealings with NZ Brick Distributors Limited Partnership.
17. Customer Restructure: The Customer will notify NZ Brick Distributors Limited Partnership in writing within 7 days of any change in its structure or management including any change in director, shareholder or change in partnership or trusteeship and/or of the sale of any part of its business. The Customer will give NZ Brick Distributors Limited Partnership 14 days prior written notice of any proposed change of its name.
18. Jurisdiction: The Agreement is to be governed by, and construed in accordance with, New Zealand law and the Customer agrees to submit to the nonexclusive jurisdiction of the Courts of New Zealand.
19. Credit Limit: If NZ Brick Distributors Limited Partnership grants any credit facility or nominates any credit limit, this is an indication only of its intention at the time. NZ Brick Distributors Limited Partnership can vary or withdraw any credit facility at its unfettered discretion, without liability to the Customer or any other party.
20. Waiver: If NZ Brick Distributors Limited Partnership elects not to exercise any of its rights as a result of any breach of these Terms, it shall not be a waiver of any rights relating to any subsequent or other breach.
21. Notice: The Customer will be deemed to have notice of any change to these Terms immediately they are adopted by NZ Brick Distributors Limited Partnership whether or not the Customer has actual notice. The Customer shall be bound by any terms & conditions adopted by NZ Brick Distributors Limited Partnership immediately they are so adopted, despite other purported, pre-existing or conflicting terms or conditions.
22. Indemnity: a) The Customer indemnifies NZ Brick Distributors Limited Partnership against any claim or loss arising from or related to any dealing with NZ Brick Distributors Limited Partnership or anything arising there from, including any liability arising as a result of any default as described in clause 17 or otherwise b) nothing in these Terms will derogate from NZ Brick Distributors Limited Partnership’ right to maintain any action against the Customer for any part of any unpaid purchase price, for any monies owed to NZ Brick Distributors Limited Partnership for any damages loss, liability or any other cause of action.
23. Security For Payment: The Customer agrees upon written request, in addition to the security interest granted by the Customer under clause 2(g) to grant in favour of NZ Brick Distributors Limited Partnership a security interest in all of it’s present and after acquired personal property as a security for all moneys now and in the future owing by the customer of NZ Brick Distributors Limited Partnership under this contract and acknowledges that NZ Brick Distributors Limited Partnership may register a financial statement to perfect such security interest in accordance with the PPSA. The Customer agrees to execute such further information to NZ Brick Distributors Limited Partnership, as may be required by NZ Brick Distributors Limited Partnership, to perfect such security interest.
24. PPSA – Contracting Out: The Customer: a) agrees that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to the Agreement; b) waives its right to: (i) have NZ Brick Distributors Limited Partnership obtain the best price under the section 110 (a); (ii) receive a statement of account under the section 116 of the PPSA; (iii) receive the amount of any surplus under section 117 (1) of the PPSA; (iv) to recover any surplus under section 119; (v) receive notice of a proposal to take all collateral in satisfaction of a default in it’s obligations under the Security Agreement under section 120 (2) of the PPSA; (vi) to obtain to a proposal to sell the property under section 121 of the PPSA; (vii) not to have goods damaged or be inconvenienced should NZ Brick Distributors Limited Partnership remove the accession under section 125 of the PPSA; (viii) receive notice of the removal an accession under section 129 of the PPSA; (ix) apply to court for an order concerning the removal of an accession under section 131 of the PPSA; (x) redeem the goods under section 132 of the PPSA; and (xi) receive a copy of the verification statement confirming registration of financial statement or financing change statement relating to NZ Brick Distributors Limited Partnership interest in the products.
25. Partial Delivery/Forward Orders: The Customer agrees that if any forward order is placed a) to pay for so much of any order as is from time to time invoiced by NZ Brick Distributors Limited Partnership b) no delay or failure to fulfil any part of any order or any alleged delay in or incomplete delivery shall entitle the Customer to cancel or vary any order or delay or reduce any payment.
26. Force Majeure: NZ Brick Distributors Limited Partnership will not be in default or in breach of any contract with the Customer as a result of Force Majeure. Force Majeure means anything or event beyond the reasonable control of NZ Brick Distributors Limited Partnership and includes any strike or lock-out.
27. Insolvency: a) If the Customer commits or is involved in any act of insolvency, it agrees it shall be deemed in default under these terms b) An act of insolvency is deemed to include bankruptcy, liquidation, receivership, administration or the like.
28. Description: NZ Brick Distributors Limited Partnership will have fulfilled its obligations upon having available for delivery Products (+/- 5%) which comply with the generic description of what was ordered.
29. Product Specific Terms: a) These Terms will form part of any dealings with NZ Brick Distributors Limited Partnership, relating to any specific Products (tiles, pavers and/or linkwalls etc), in addition to any Product Specific terms or conditions b) facing bricks will have one face & one header unless otherwise specified & agreed in writing c) Products sold as “first quality” will comply with NZ Brick Distributors Limited Partnership definition of first quality d) Products sold other than as “first quality” may be imperfect or damaged and no warranty as to quality or fitness for any purpose is given or to be implied.
30. Adverse Environments: The Customer acknowledges that Products (especially sandstock, extremely hard, glazed or softer Products) can be adversely affected by severe environments, temperature extremes, frost, wind borne salt or abrasives which cause flaking, eat-away glaze or finish and reduce expected operating life especially in seaside locations.
31. Brick Block Levies etc: The Customer will pay any industry or legally imposed levy which applies to any Products from time to time, in addition to the purchase price.
SILICA WARNING: Always “wet” cut saw, drill, chase, break etc Products. Dust from Products may contain silica and/or other material which is harmful to health. Avoid inhaling any dust to avoid the risk of respiratory impairment etc.