Terms of Trade
TERMS AND CONDITIONS OF SALE FOR Fletcher Concrete and Infrastructure Limited trading as Firth Industries (Firth).
The following terms and conditions of sale will apply to the sale of all Goods (as that term is defined below) by Firth to the Customer. By placing any order for any Goods the Customer agrees to purchase the Goods on these terms. No variation of these terms is permitted unless Firth has agreed in writing to such variation.
1. GENERAL
For the purposes of these terms: "CGA" means the Consumer Guarantees Act 1993; "Goods" means all building, masonry, stone and concrete products including precast, pre-stressed and certified concrete (as may be sold from time to time) supplied by Firth, including all goods referred to in any invoice issued by Firth to the Customer at any time; "GST" means goods and services tax within the meaning of the Goods and Services Tax Act 1985; "PPSA" means the Personal Property Securities Act 1999 and "Security Interest" has the same meaning given to that term under the PPSA.
2. PRICE
Goods will be invoiced at the price plus GST contained in Firth's price list, current on the date of delivery unless otherwise agreed in writing by Firth. Firth may alter any prices without notice and the purchase price of the Goods payable by the Customer may be different from the price quoted or the price current when the Goods were ordered.
3. PAYMENT
3.1 Subject to clause 3.2, the Customer will pay for the Goods plus GST in cash on or before delivery.
3.2 Where Firth agrees in writing to grant credit terms to the Customer, the invoiced price of the Goods plus GST is to be paid by the Customer in full on the 20th of the month following the date of invoice for the Goods. The Customer acknowledges that:
3.2.1 If payment is not made on the due date:
(a) the Customer will pay default interest to Firth at the rate of 1.5% per month above the rate charged by Firth's bank for commercial overdraft facilities, on all money owing by the Customer to Firth from the due date for payment until the date payment is received by Firth; and
(b) Firth is entitled to recover from the Customer any discount given on the defaulted purchase together with all legal and other associated costs (including without limitation any collection costs) incurred by Firth in connection with the enforcement (or attempted enforcement) of these terms.
3.2.2 if reasonably required by Firth as part of any credit application, the Customer will procure any spouse, director, shareholder, trustee, partner or guarantor of the Customer to consent to a credit check being performed on that person in respect of such credit application and that the Customer will procure such person to sign any necessary consent form reasonably required by Firth for such purpose.
3.3 The Customer will make all payments due to Firth in full without deduction or set off.
4. DELIVERY
4.1 Subject to clause 4.2, delivery of the Goods will be deemed complete when the Goods are available for collection from Firth's premises on the specified delivery date. The Customer shall be responsible for arranging the carriage of the Goods to the Customer's premises.
4.2 Where Firth has agreed in writing to arrange the carriage of the Goods:
4.2.1 loading or deliveries carried out outside the hours of 7.30am and 4.00pm on weekdays must be by special arrangement and will incur an extra charge;
4.2.2 delivery will in all cases be deemed complete when the Goods arrive at the delivery address specified by the Customer;
4.2.3 the Customer is responsible for ensuring, at the Customer's cost, that the delivery address has sufficient and suitable means of access. Firth shall, at its discretion, determine whether there is sufficient and suitable access and may leave the Goods as near to the delivery address as a safe, hard public road permits; 4.2.4 if the Goods cannot be delivered (as a result of insufficient or unsuitable access or otherwise) or if the Customer fails or refuses to take delivery of any of the Goods at any specified delivery time, Firth may (without limiting any other right that Firth may have) charge the Customer for any of the following expenses incurred:
(a) hourly truck and driver rates for waiting time; and
(b) transportation, disposal of the Goods or any other additional expenses incurred in relation to the Goods; and
4.2.5 delivery of the Goods will be undertaken at the risk of the Customer and Firth will be deemed to be acting as an agent for and on behalf of the Customer and not as a Carrier for the purposes of the Carriage of Goods Act 1979.
4.3 Firth will not be liable for any loss, damage ordelay howsoever arising caused by circumstances outside its reasonable control or by unscheduled delays, provided however that all reasonable steps are taken to comply with the Customer's preferred timetable for delivery. Any stated time for delivery is an estimate only. Late delivery or failure to deliver any Goods does not entitle the Customer to cancel any order or part order.
4.4 All claims for errors or short delivery must be made to Firth in writing within five days of delivery. Without limiting any other provision in these terms, Firth is not liable for any shortages or damage to Goods where the Goods are left on-site unattended, following delivery.
4.5 Unless Firth agrees otherwise in writing delivery charges are to the Customer's account. The Customer will pay to Firth any additional and/or consequential costs or expenses incurred by Firth in delivering the Goods where it is necessary to leave a public road or street or paved or sealed road or street to deliver the Goods to the address requested by the Customer or where suitable and sufficient access is not provided pursuant to clause 4.2.3. Such costs or expenses include (but are not limited to) the following:
4.5.1 any claims against Firth for damage to third party property;
4.5.2 the cost of repairs to the delivery vehicle or any property of Firth if damaged during such delivery; and
4.5.3 additional labour or transport costs incurred in such delivery.
5. RISK
Notwithstanding clause 6, the Customer bears the risk of any loss or damage to, or deterioration of, the Goods after delivery of the Goods pursuant to clause 4. Once risk in the Goods passes under this clause 5 and until ownership of the Goods passes to the Customer in accordance with clause 6, the Customer will insure the Goods against all usual risks for the full insurable value and treat the Goods with all proper care. The Customer hereby indemnifies Firth against any loss or damage to the Goods howsoever arising once risk has passed pursuant to this clause 5.
6. OWNERSHIP
6.1 Title to, and property in, the Goods (whether or not any of the Goods have been paid for by the Customer) will not pass to the Customer unless and until all amounts owing by the Customer to Firth, in respect of the Goods or otherwise have been paid.
7. DEFAULT
If any amount payable by the Customer to Firth is overdue, or if the Goods are 'at risk' within the meaning of the PPSA, or the Customer fails to comply with any other obligation owed to Firth, or in Firth's opinion the Customer is likely to be unable to meet its obligations to Firth or the Customer becomes insolvent, has a receiver appointed in respect of all or some of the Customer's assets, makes or is likely to make an arrangement with the Customer's creditors or has a liquidator (provisional or otherwise) appointed or is placed under statutory management then, without prejudice to any other remedy of Firth:
(a) Firth is entitled to cancel all or any part of any contract(s) with the Customer which remain unperformed;
(b) all amounts outstanding under all the then current contracts between the Customer and Firth will, whether or not due for payment, immediately become due and payable; and
(c) Firth is entitled to reclaim any Goods which are in the Customer's possession or control and to dispose of them for Firth's own benefit (subject to these terms and in accordance with the PPSA) and for that purpose Firth shall be entitled, without notice, to enter directly or by its agents on any premises where it believes the Goods which it has supplied may be, without in any way being liable to any person; and
(d) Notwithstanding anything in these terms, there is no intention to contract out of the Credit (Repossession) Act 1997 where it may apply and any provision which has such an effect shall be ineffective to that extent.
8. LIMITATIONS
8.1 If the Customer is, or holds itself out, as purchasing the Goods for the purposes of a business (as defined in the CGA) the Customer agrees that the CGA will not apply to such supplies. Other than as expressly required by law Firth makes no other representations, warranties or conditions, express or implied as to the nature or quality of the Goods, and any and all other representations, warranties, terms implied by any laws are excluded.
8.2 To the extent permitted by law:
8.2.1 no liability whatsoever is accepted by Firth as to the condition of the Goods after leaving Firth's premises unless Firth has agreed in writing to deliver the Goods, in which case liability shall cease at the time of on-site delivery;
8.2.2 Firth is not liable for any consequential, incidental or special damages arising directly or indirectly under these terms or in connection with the Goods; and
8.2.3 Firth's liability is limited to the repair or re-supply of any defective Goods.
9. CGA
The Customer warrants that it will:
9.1 not make any representations about the Goods which are not authorised in writing by Firth or contained in literature supplied by Firth; and
9.2 contract out of the CGA in writing if it on-sells Goods to a customer for the purposes of that customer's business.
10. PALLETS
Where pallets are supplied by Firth an additional charge may be made by Firth to the Customer for such supply and these terms will apply to such supplies. Firth may purchase pallets previously supplied by Firth and issue a credit therefore to whomsoever returns the pallets, such credit being at the sole discretion of Firth but will take account of the condition of the pallets and the cost of collection where appropriate.
11. PERSONAL PROPERTY SECURITIES ACT 1999
The Customer agrees that:
11.1 these terms create a Security Interest in all present and after-acquired Goods as security for all the Customer's obligations to Firth;
11.2 it will do all things and execute or arrange for execution of all documents reasonably required by Firth to ensure that Firth has a perfected first ranking Security Interest(s) in the Goods;
11.3 it waives its right to receive a copy of any verification statement(s) under PPSA;
11.4 as between it and Firth it will have no rights under sections 114(1)(a), 116, 117(1)(c), 119, 120(2), 121, 125, 127, 129, 131, 132, 133, and 134 of the PPSA;
11.5 where Firth has rights in addition to those in Part 9 of the PPSA, those rights shall continue to apply and in particular, will not be limited by section 109 of the PPSA;
11.6 it will indemnify Firth for any cost it incurs in registering, maintaining and/or enforcing the Security Interest created by these terms; and
11.7 it will immediately notify Firth of any change in the Customer's name.
12. MISCELLANEOUS
12.1 If at any time Firth does not enforce any of these terms or grants the Customer time or other indulgence, Firth will not be construed as having waived that term or condition or its rights to later enforce that or any other term or condition.
12.2 If any of these terms or any part of them, are held or found to be void, invalid, unenforceable or otherwise ineffective by operation of law, they shall (to the extent necessary) be deemed to be severed from these terms but the remainder shall remain in full force and effect.
12.3 The right of Firth to sub-contract the whole or any part of any order for Goods is hereby reserved.
12.4 Firth and the Customer acknowledge that these terms express the entire understanding and agreement between them, and that there have been no representations made by either party to the other except as expressed in these terms. If there is any inconsistency between these terms and any order that may be lodged by the Customer or any other agreement, then these terms will prevail.
12.5 Without limiting or affecting any other rights Firth has, if in Firth's opinion, payment for any Goods is unlikely to be made or if payment for any Goods has not been made by the due date, the Customer hereby irrevocably agrees to grant a registered mortgage over all such land owned by the Customer on the then most current Auckland District Law Society all moneys Memorandum of Mortgage form in favour of Firth and agrees that in the event of any default of the provisions of these terms, Firth may lodge a caveat over any interest the Customer has in any land situated within New Zealand as a security for all indebtedness which exists from time to time to Firth.
12.6 Firth reserves the right to:
12.6.1 suspend the supply of any order in whole or in part or to discontinue the supply of Goods and services to the Customer without incurring any liability whatsoever and without being obliged to give any reason for its action:
(a) pending the provision of a guarantee or further guarantee or otherwise; or
(b) if any information provided by the Customer or any third party in connection with the Customer or any credit application is found to be incomplete, inaccurate or untrue, or any relevant information is omitted;
12.6.2 make part delivery of any order and each part delivery shall constitute a separate contract of supply; and
12.6.3 alter these terms by written notice to the Customer and such revised terms will thereafter apply to subsequently supplied Goods.
12.7 All customary construction industry tolerances will apply to the dimensions and measurements of the Goods unless Firth and the Customer agree otherwise in writing.
13. PRECAST CONCRETE PRODUCTS
13.1 If any of the Goods include Precast Goods, then in respect of those Precast Goods the following extra clauses will also apply:
13.1.1 Surface Finish: unless otherwise stated in the quotation for Precast Goods, all formed surfaces of units shall have an "off-form" finish which may not be completely free from pin holes or mould stain.
13.1.2 Dimensions: Firth shall not be responsible for checking site dimensions and shall incur no liability for any loss or damage resulting from any want of accuracy in regard thereto.
13.1.3 Specifications: Firth's specifications and tolerances for Precast Goods are generally based on the relevant NZ Standard. Firth shall be entitled to make such minor variations to the Precast Goods as shall be reasonably necessary for the due completion thereof.
13.1.4 Lifting and Installation: where lifting devices are specified in the supply contract documents, Firth does not accept responsibility for their subsequent behaviour under load. Where lifting devices are not specified and are inserted by Firth for convenience of handling under factory conditions only, Firth shall not be liable for any damage caused by the use of such devices or their failure under load. Firth takes no responsibility and will not be liable for a Customer's propping system or other installation activities and any loss resulting therefrom.
13.1.5 Guarantee: Precast Goods are manufactured in accordance with relevant codes and are guaranteed against faulty workmanship. This guarantee shall extend for the contract period and the maintenance period of the contract. This guarantee is subject to the following exceptions:
(a) that this guarantee shall not include any facing or discolouration of the surface which is caused by the environment; and
(b) that the materials and surfaces which are supplied and not manufactured by Firth are guaranteed only to the extent of any like guarantee offered by the respective suppliers.
14. ENVIRONMENTAL COMPLIANCE
The Customer acknowledges that it must comply with all laws (including without limitation the Resource Management Act 1991) in respect of the use, storage and/or disposal of any Goods.
15. PRIVACY ACT
The Customer acknowledges and agrees that:
15.1.1 Firth is authorised to collect from the Customer and from any third party (including without limitation, from any credit reporters or credit providers) any personal information about or in relation to the Customer for the purposes of operating the Customer's account with Firth (including whether to offer credit terms to the Customer) and the supply of Goods to the Customer or for any other purpose reasonably connected with the above purposes;
15.1.2 Firth is entitled to disclose that any information collected by Firth to any third parties (including without limitation to any credit reporters or credit providers or related companies or related entities of Firth) in connection with the purposes set out in clause 15.1.1 or for debt collection purposes;
15.1.3 Firth may produce these terms and conditions as authority to any such person as evidence of the Customer's consent;
15.1.4 the information is being collected by and will be held by Firth. Inquiries in relation to the information held by Firth should be directed to 585 Great South Road, Penrose, Auckland.
15.1.5 if the Customer fails to provide any personal information required by Firth, or if any information provided by the Customer is false or misleading, Firth may refuse to supply any Goods to the Customer and may cancel without penalty to Firth any orders previously accepted by Firth; and
15.1.6 it is aware of its rights to seek access to and the correction of any information held by Firth in relation to the Customer.