Terms & conditions
STANDARD TERMS AND CONDITIONS OF SALE AND SECURITY AGREEMENT
These Standard Terms and Conditions of Sale (“Terms”) are entered into between Steelpipe Limited (“Company”), and the buyer described below (“Buyer”) and govern the sale of Goods and the provision of Services (as those terms are defined in these Terms) to the Buyer.
1 REPRESENTATIONS AND WARRANTIES
Any representation, undertaking or warranty made by the Company or any agent or representative of the Company (unless recorded and confirmed by the Company in writing) is cancelled and withdrawn and shall not apply to any contract between the Company and the Buyer.
2 PRICE AND INDEMNITIES
2.1 The price will be increased by the amount of any GST and other applicable taxes and duties, except to the extent that such taxes are expressly included in the price in any quotation given by the Company.
2.2 The price may be increased by an amount necessary to take account:
(a) of any increase or decrease in the cost of any items (including as a result of any change in currency exchange rates) affecting the cost of supply, production and/or delivery of the Goods or Services between the date of the Company’s acceptance of the Buyer’s order and the date of delivery;
(b) of any costs incurred by the Company as a result of the method of payment used by the Buyer including, without limitation, any credit card transaction costs.
2.3 The Buyer is bound to pay the price from the time that the Company accepts the Buyer’s order. Each accepted order shall, constitute a separate contract for the supply of the particular Goods or Services on these Terms. A quotation does not give rise to a binding contract in respect of particular Goods or Services until the Buyer places an order which is subsequently accepted by the Company.
2.4 Alterations to any price list will be effective from the date specified by the Company at the time of giving notice of such alterations to the Buyer.
2.5 The Buyer agrees to indemnify the Company, upon demand, for all costs and expenses (including legal fees) incurred by the Company: (a) as a result (whether directly or indirectly) of the occurrence of an Event of Default (including upon actual or attempted enforcement of the Security Interest and appointment of a receiver); and (b) in registering and maintaining any financing statement.
3.1 Payment is to be made in full by the 20th day of the month following the date of delivery unless the Company otherwise agrees in writing in respect of any particular Goods or Services.
3.2 Receipt of any cheque or other bill of exchange shall not comprise payment for Goods or Services until the same has been honoured or cleared.
3.3 If the Buyer fails to make payment by the due date:
(a) any relevant discounts may be disallowed and the price will be amended accordingly; and
(b) it shall be liable to pay to the Company penalty interest at a rate of 4% per annum above the current bank overdraft rate charged by the Company’s bankers for the period during which the Amount Owing or any part thereof remains unpaid, calculated on a daily basis. A letter or other evidence from a recognised bank carrying on business in New Zealand to the Company for the relevant period shall (subject to manifest error) be conclusive evidence of that overdraft rate during that period.
3.4 The Buyer may not withhold payment or make any deductions from or set off any amount against any Amount Owing without the Company’s prior written consent.
4.1 The Company shall (unless it otherwise agrees in writing) deliver the Goods by a carrier of its choice to an area at or alongside a site specified by the Buyer (being an area with sufficient clear hard space provided at the expense of the Buyer) (“the Site”). Where the Buyer nominates the use of other carriers, any additional costs arising beyond the Company’s normal costs of delivery shall be borne by the Buyer.
4.2 Where delivery of small quantities of Goods incurs additional cost or delivery is required to a destination other than the Site, any additional freight costs shall be borne by the Buyer.
4.3 In the event that unloading of the Goods at the Site requires greater than 60 minutes from the time that the carrier is able, but for its own fault, to arrive at the Site, any costs incurred by the Company due to time taken over and above this period shall be paid by the Buyer.
4.4 The Company may deliver the Goods by instalments, and each instalment shall be treated as a separate contract under these Terms.
4.5 The Buyer acknowledges that any time or date for delivery given to the Buyer by the Company is intended only as an estimate and the Company shall not be liable for the consequences of delay however arising and that the Company will not accept any liability for any Claims for losses arising from its failure to meet the time or date for delivery. Delayed or defective delivery shall not cancel the separate contract for that particular instalment (if applicable) or the contract for all the Goods or Services or any other contract or agreement with the Company or subject the Company to any penalty. The Buyer will accept the Goods when delivered and pay the price prevailing at the date of delivery notwithstanding any such delayed or defective delivery.
4.6 Where the Company is dependant upon other manufacturers or suppliers to provide goods or services, the Company is under no liability to the Buyer for any Claims to the extent arising from the failure of the manufacturer or supplier to provide those goods or services.
4.7 When the Goods are available and due for delivery by the Company and the Buyer fails to take or accept the same when required to do so under these Terms, for the purpose of clause 4.1 delivery shall be deemed to have been made on the date the Company was willing. and able to effect delivery.
5 OWNERSHIP AND RISK
5.1 Notwithstanding that title in the Goods may remain with the Company, the risk of any loss, damage or deterioration of or to the Goods shall pass to the Buyer from the time of delivery in accordance with clause 4.1 or deemed delivery in accordance with clause 4.7.
5.2 Ownership of the Goods shall not pass (and the Buyer upon receipt of the Goods shall be bailee only) until the Buyer :
(a) has paid to the Company the Amount Owing in full and the Company has released the Security Interest; or
(b) resells the Goods pursuant to the authority granted by these Terms.
5.3 While ownership of the Goods remains with the Company:
(a) the Buyer must store them separately and clearly identify them as belonging to the Company;
(b) the Company authorises the Buyer, in the ordinary course of the Buyer’s business, to use the Goods or sell them for full consideration. This authority is revoked immediately if:
(i) an Event of Default occurs; or
(ii) the Company notifies the Buyer in writing that this authority is revoked;
(c) the Buyer must advise the Company immediately of any Event of Default or any action by third parties (including any of its creditors) affecting the Company’s interest in the Goods.
5.4 The Company may apply any payments received from or on behalf of the Buyer in reduction of the Amount Owing in such order and manner as the Company thinks fit (despite any direction to the contrary and whether before or after the occurrence of an Event of Default).
5.5 If the Buyer resells or uses any Goods before ownership of the Goods has passed to the Buyer, the proceeds of such sale or use shall be received and held by the Buyer (in whatever form) in trust for both the Buyer and the Company. The Company’s interest as beneficiary under that trust shall be that portion of the proceeds which does not exceed the Amount Owing. The balance of the proceeds (if any) shall be the Buyer’s beneficial interest under that trust.
5.6 The Company may bring an action for the price of the Goods sold even where ownership of the Goods may not have passed to the Buyer.
6 PERSONAL PROPERTY SECURITIES ACT 1999
6.1 Without limiting anything else in these Terms, the Buyer acknowledges that:
(a) these Terms create, in favour of the Company, a security interest in all present and after acquired Goods (being, for the avoidance of doubt, all the Buyer’s present personal and after-acquired property except for any item of personal property which has not (or which is exclusively the proceeds of any item of personal property which has not) been supplied by the Company to (or for the account of) the Buyer) to secure the payment by the Buyer to the Company of the Amount Owing; and
(b) these Terms will apply notwithstanding anything, express or implied, to the contrary contained in any purchase order (or its equivalent, whatever called) of the Buyer; and
(c) the Security Interest shall continue until the Company gives the Buyer a final release.
6.2 The Buyer undertakes to:
(a) promptly do all things, sign any further documents and/or provide any information which the Company may reasonably require to enable the Company to perfect and maintain the perfection of its Security Interest (including by registration of a financing statement);
(b) give the Company (addressed to the financial controller or equivalent) not less than 14 days’ prior written notice of any proposed change in the Buyer’s name and/or any other change in the Buyer’s details (including, but not limited to, changes in the Buyer’s address, facsimile number, trading name or business practice).
6.3 The Buyer waives its right to receive a verification statement in respect of any financing statement relating to the Security Interest.
6.4 To the extent permitted by law, the Buyer and the Company contract out of:
(a) section 114(1)(a) of the PPSA; and
(b) the Buyer’s rights referred to in sections 107(2)(c), (d), (h) and (i) of the PPSA.
6.5 The Buyer agrees that the Security Interest has the same priority in relation to all amounts forming part of the Amount Owing, including future advances.
7 RETURN OF MATERIALS
7.1 No Claims for alleged defective Goods (including damage in transit) will be recognised unless made in writing and received by the Company within seven days after delivery. The Company reserves the right to inspect the Goods and to remedy defects in respect of the Goods on the site, but otherwise Goods accepted as defective by the Company shall be returned to the Company at the Buyer’s expense at the original point of commencement of delivery.
7.2 Other than as provided in paragraph 7.1 above, the Buyer may not return or refuse delivery of any Goods purchased from the Company.
8 LIMITATION OF LIABILITY
8.1 To the extent permitted by law, all warranties and conditions implied by law (including any warranties as to suitability of the Goods for the use to which they will be put) are excluded from any contract between the Company and the Buyer.
8.2 The Company’s liability under these Terms or any contract made in accordance with these Terms is limited to replacing (or, at the election of the Company, repairing) any defective Goods to the entire exclusion of any other remedy which, but for this clause, the Buyer might have and the Company shall be under no liability for any damage, injury, direct, indirect, or consequential or other loss or loss of profits or costs, charges and expenses on the part of the Buyer or any other person other than to repair or replace as mentioned above. The Company shall not be liable to the Buyer if for any reason beyond the Company’s control it is not able to deliver or supply any of the Goods.
9.1 If an Event of Default occurs:
(a) the Company may suspend or terminate any contract;
(b) the Amount Owing shall immediately become due and payable notwithstanding that the due date has not arisen;
(c) the Company may enforce the Security Interest; and/or
(d) the Company may (without the consent of the Buyer) appoint a receiver in respect of any Goods and any receiver is authorised to do anything referred to in these Terms and otherwise to exercise all rights and powers conferred on a receiver by law.
9.2 The Buyer agrees that, at any time after an Event of Default has occurred and is continuing or at any time if any Goods are at risk, the Company may:
(a) take possession of any Goods; and/or
(b) sell or otherwise dispose of any Goods, in each case in such manner and generally on such terms and conditions as it thinks fit and, in each case, otherwise do anything the Buyer could do in relation to those Goods. As the Buyer’s agent, the Company (and its employees and agents) may, without prior notice, enter any land or premises where the Goods are kept in order to take possession of and/or remove them, without being responsible for any damage caused in doing so. The Buyer agrees to procure all other rights (including consents) necessary to enable, and to indemnify the Company (and its employees and agents) against any liability incurred in connection with, such entry, taking of possession and removal. The Company may resell any of the Goods and apply the proceeds of sale in reduction of the Amount Owing.
10 PAYMENT VALIDITY
10.1 The Buyer acknowledges that the Company continues to supply the Buyer on condition that payments received by the Company from the Buyer are valid and made in the ordinary course of the Buyer’s business.
10.2 The Buyer further acknowledges that the Company receives all payments in the ordinary course of the Buyer’s business, in good faith and in the reasonably held belief as to the validity of those payments unless and until the Buyer gives notice in writing to the Company:
(a) of the Buyer’s then inability to pay its due debts; and
(b) that the Buyer’s intention or purpose in making any such payment is to enable the Company to receive more towards satisfaction of its debt than it would otherwise have received or have been likely to have received in any liquidation of the Buyer, and until receipt of such notice, the Company shall be entitled to assume that all payments received from the Buyer are made in the ordinary course of the Buyer’s business.
11 CONSTRUCTION CONTRACTS ACT 2002
11.1 In the event that any provision of Goods or Services by the Company to the Buyer is of a nature that means the supply is a “construction contract” within the meaning of the Construction Contracts Act 2002 (the CCA), then the payment provisions under these terms and any quotation shall prevail over the payment provisions under the CCA to the maximum extent permitted by law.
12 FORCE MAJEURE
12.1 Notwithstanding any other provision of these Terms, non-performance by either the Company or the Buyer of their respective obligations (other than to pay money) under these Terms shall be excused, without liability for non-performance, during the time and to the extent that such performance is prevented, wholly or substantially, by force majeure.
12.2 The party claiming the benefit of this clause shall promptly give written notice to the other party specifying the cause and extent of its inability to perform any of its obligations under these Terms and the likely duration of such non-performance. Such party shall take all reasonable steps to remedy or abate the force majeure.
12.3 Performance of any obligation affected by force majeure shall be resumed as soon as reasonably possible after the termination or abatement of the force majeure.
13 USE OF INFORMATION
13.1 The Buyer agrees that the Company may obtain information about the Buyer from the Buyer or any other person (including any credit or debt collection agencies) in the course of the Company’s business, including credit assessment, debt collecting and direct marketing activities, and the Buyer consents to any person providing the Company with such information.
13.2 The Buyer agrees that the Company may use any information it has about the Buyer relating to the Buyer’s credit worthiness and give that information to any other person, (including any credit or debt collection agency for credit assessment and debt collection purposes). The Buyer agrees that any other information collected by the Company about the Buyer is accessed or collected for the use of the Company in the course of its business, including direct marketing activities.
13.3 The Buyer must notify the Company of any change in circumstances that may affect the accuracy of the information provided by the Buyer to the Company or any company related to the Company. If the Buyer is an individual (i.e. a natural person) the Buyer has rights under the Privacy Act 1993 to access and request the correction of any personal information which the Company holds about the Buyer.
14 RESOLVING DISPUTES
14.1 The parties intend that any differences between them concerning this agreement will be resolved amicably by good faith discussion.
14.2 If any difference is not resolved by discussion, either party may require the matter to be referred to mediation by notice to the other party setting out the general nature of the difference. Where mediation is agreed upon, the parties will:
agree on the appointment of a mediator and failing agreement the mediator shall be appointed by the President of the New Zealand Law Society or his or her nominee;
each appoint a representative with authority to reach an agreed solution;
act in good faith and use their best endeavours to reach a resolution;
equally meet the mediator’s costs.
14.3 If the parties fail to settle the dispute by mediation within 30 days of the matter being referred to mediation, then either party may initiate litigation to resolve the dispute.
14.4 Either party may take immediate steps at any time to seek urgent injunctive or equitable relief before an appropriate court.
If the Company exercises or fails to exercise any right or remedy available to it, this shall not prejudice the Company’s rights in exercising that or any other right or remedy. Waiver of any term of these Terms must be specified in writing and signed by an authorised officer of the Company.
The Company is entitled at any time to assign to any other person all or part of any debt owing by the Buyer to the Company.
17 REVIEW OF TERMS
The Company reserves the right to review any of these Terms at any time and from time to time. If, following any such review, there is any change to these Terms that change will take effect from the date on which the Company gives notice to the Buyer of such change.
18 TRUSTEE LIABILITY
If the Buyer is a trust, these Terms will bind each trustee of that trust and each trustee personally. The Company’s rights against each trustee will only be limited if the trustee is an independent trustee (not being a trustee who has a right to or interest in any of the assets of the trust except in the trustee’s capacity as trustee of that trust). The liability of an independent trustee shall be limited to the assets of the trust. However, this shall not affect the liability of an independent trustee who has guaranteed the Buyer’s obligations under these Terms in his or her personal capacity.
If any part of these Terms is held by any Court to be illegal, void or unenforceable, such determination shall not impair the enforceability of the remaining parts of these Terms.
20 RIGHTS, POWERS AND REMEDIES
The rights, powers and remedies provided for in these Terms are in addition to, and do not limit or exclude (or otherwise adversely affect), any right, power or remedy provided to the Company by law.
21 GOVERNING LAW
These Terms are governed by and construed in accordance with New Zealand law, and the parties hereby submit to the non-exclusive jurisdiction of the courts of New Zealand.
22.1 In these Terms:
Amount Owing means, at any time, the unpaid price charged by the Company for the Goods or Services, and any other sums which the Company is entitled to charge under these Terms or which are otherwise owing by the Buyer to the Company (in whatever capacity).
Claim includes any claim:
(a) for damages of any kind, including but not limited to damages for breach of contract;
(b) for loss of profits; or
(c) for any consequential, indirect or special loss, damage or injury of any kind suffered by any person arising directly or indirectly from:
(i) any breach of the Company’s obligations under these Terms; or
(ii) any cancellation of any contract; or
(iii) any negligence, misrepresentation or other act or omission by the Company or its employees, agents or contractors; or
(d) for compensation, demand, remedy, liability or action.
An Event of Default means an event where:
(a) the Buyer fails to comply with these Terms or any other agreement with the Company; or
(b) the Buyer is subject to any event which is in the nature of dissolution, winding up, bankruptcy, liquidation, insolvency or receivership, or which generally precedes such an event; or
(c) an event occurs or information becomes known to the Company, which in the Company’s opinion, might materially affect the Buyer’s creditworthiness, the value of the Goods the subject of the Security Interest, or the Buyer’s ability or willingness to comply with its obligations under these Terms or any other agreement with the Company; or
(d) any guarantor of the Buyer’s obligations under these Terms is in default under any agreement with the Company (in any capacity).
Force majeure means any act of God, fire, earthquake, storm, flood, or landslide, strike, lockout, work stoppage or other labour hindrance, explosion or public mains electrical supply failure; sabotage, riot, civil disturbance, insurrection, epidemic, national emergency (whether in fact or law) or act of war (whether declared or not), requirement or restriction of, or failure to act by, any government semi-governmental or judicial entity, any unavoidable accident or any other similar cause beyond the reasonable control of the party claiming the benefit of clause 12 and which that party is unable to overcome by the exercise of reasonable diligence and at a reasonable cost; but does not include any event which the party affected could have prevented or overcome by exercising a standard of reasonable care, or a lack of funds for any reason. Goods means all goods supplied from time to time by the Company to the Buyer, provided that:
(a) (but solely for the purpose of the application of the PPSA) where the goods supplied are inventory of the Buyer, then all references to Goods in these Terms shall, in respect of those goods, be read as references to inventory for so long as they are held as inventory; and
(b) where the goods supplied are not, or are no longer held as, inventory of the Buyer, then all references to Goods in these Terms shall, in respect of those goods, mean the goods described in any one or more of the relevant order form, packing slip or invoice (or its equivalent, whatever called) prepared by the Company and relating to those goods, on the basis that each such order form, packing slip or invoice (or its equivalent) is deemed to be assented to by the Buyer, incorporated in, and form part of, these Terms, and (unless the context requires otherwise) includes all proceeds of such Goods and any product or mass which the Goods subsequently become part of. Person includes a corporation, association, firm, company, partnership or individual. PPSA means the Personal Property Securities Act 1999. Security Interest means the security interest provided for by these Terms. Services means the services (if any) that the Company agrees in writing, to provide to the Buyer in connection with the sale of the Goods.
22.2 References to the PPSA, the Privacy Act 1993 and the CCA include that legislation as it is from time to time amended, re-enacted or substituted and any statutory instruments, regulations and orders issued under such legislation.
22.3 A reference to any party under these Terms includes that party’s successors and permitted substitutes and assigns.
22.4 Unless the context otherwise requires, words and phrases have the meanings given to them in, or by virtue of, the PPSA.