TERMS OF TRADE
Effective 1st January 2007
1. GENERAL
In these terms “PNZ” means Paslode New Zealand, a division
of ITW New Zealand Limited and “Goods” means goods
supplied or to be supplied by PNZ from time to time on
these trading terms. ”PPSA” means the Personal Property
Securities Act 1999.
2. ORDERS
2.1 All orders are subject to acceptance by PNZ. Any order
accepted by PNZ from 1 August 2004 will be on these trading
terms only. These trading terms are paramount and take
precedence over any terms which may be offered by the
Customer, or any previous trade terms of ITW Construction
Products or Jambro Limited.
2.2 PNZ may at any time require the Customer to procure a
guarantee from a director or shareholder of the Customer
or any other person, on such terms as PNZ may reasonably
require, before PNZ accepts an order from the Customer.
3. PRICES
3.1 The price of the Goods will be the price in PNZ’s price list
current at the date of the Customer’s order or as otherwise
agreed.
3.2 The price of the Goods excludes goods and services (“GST”)
which will be paid in addition to the price.
4. PAYMENT
4.1 The price of the Goods plus GST must be paid, in cleared
funds, no later than the 20th of the month following the date
of the invoice for the Goods.
4.2 The Customer may not deduct or withhold any amount
(whether by way of set-off, counterclaim or otherwise) from
any money owing to PNZ .
4.3 If full payment for the Goods is not made to PNZ by the due
date for payment, PNZ may, as a result of the Customer’s
failure to make full payment by the due date for payment, at
PNZ’s discretion (and without affecting any other rights PNZ
may have), require the Customer to pay, on demand, default
interest on any amount outstanding at the rate equivalent to
the prevailing cost of funds to PNZ plus 2.0%, including GST.
Default interest will accrue on a daily basis from the date
when payment is due until the date when payment is actually
made. The Customer will be liable to pay all expenses and
costs (including legal costs as between solicitor and client) in
connection with PNZ recovering or attempting to recover any
overdue amount.
5. DELIVERY
5.1 PNZ will arrange the delivery of the Goods to the Customer.
5.2 Subject to clause 5.3, the price of the Goods includes the
costs of delivery of the Goods to the Customer by the usual
methods of delivery used by PNZ. PNZ may, at the Customer’s
request, agree to arrange delivery by other methods but will
be entitled to charge the Customer for any additional costs it
may incur.
5.3 Where the aggregate price of any order from PNZ’s store is
below $500 plus GST, PNZ reserves the right to charge the
customer a handling fee of $15 inclusive of GST.
5.4 PNZ will in no event be liable for any late delivery.
5.5 Delivery will be made or deemed to have been made when the
Goods arrive at the delivery point agreed with the Customer.
5.6 All claims for Goods damaged in transit must be made within
7 days of delivery
6. RISK AND OWNERSHIP
6.1 The Goods will be at the Customer’s risk immediately
on delivery. The Customer will insure the Goods at full
replacement value until legal and beneficial ownership of them
has passed to the Customer. If the Goods are damaged or
destroyed before legal and beneficial ownership of them has
passed to the Customer, the Customer will hold the proceeds
of such insurance in a separate fund and on trust for PNZ.
6.2 Legal and beneficial ownership of the Goods will remain with
PNZ until payment in full is made:
(a) for the Goods; and
(b) for all other amounts owing by the Customer to PNZ.
6.3 Until legal and beneficial ownership of the Goods has
passed to the Customer, the Customer will store the Goods
separately from other goods.
6.4 Without prejudice to any of PNZ’s other remedies, if
any amount payable by the Customer to PNZ is overdue
or the Customer becomes insolvent, commits an act of
bankruptcy, has a receiver appointed over all or any part of
the assets of the Customer, makes or is likely to make an
arrangement with its creditors, has a liquidator (provisional
or otherwise) appointed or is placed under statutory or
official management, then:
(a) PNZ may cancel any outstanding order with the Customer;
and
(b) any moneys payable by the Customer to PNZ whether due for
payment or not shall become immediately due and payable;
and
(c) PNZ reserves the right, and the Customer hereby irrevocably
provides consent to PNZ, to enter (whether forcibly or
otherwise) by its employees or duly authorised agents onto
the Customer’s premises, or onto any premises where Goods
owned by PNZ are reasonably thought to be stored and
repossess and subsequently resell such Goods.
6.5 Notwithstanding any period of credit, if the Customer wishes
to sell the Goods before ownership of them has passed,
the Customer may do so as principal in relation to the subpurchaser
and as agent as between PNZ and the Customer.
The Customer has no right to commit PNZ to any contractual
relationship with any third party. The Customer will account
to PNZ for the proceeds of such sales and the Customer will
ensure that, until its has accounted for them, such proceeds
are at all times identifiable, held in a separate fund on trust
for PNZ and can at the request of PNZ be paid to PNZ.
6.6 As security for all obligations that the Customer may owe
to PNZ from time to time the Customer hereby grants PNZ
a security interest in all Goods supplied by PNZ to the
Customer from time to time and in the proceeds of all such
Goods as well as in any negotiable instrument representing
any such proceeds.
6.7 The Customer will provide PNZ on request with all information
necessary for the registration of PNZ’s security interest in
terms of the PPSA.
6.8 The Customer hereby waives its right in terms of section 148
of the PPSA to receive a copy of a verification statement.
7. DISCOUNTS
7.1 The Customer is not entitled to any discount offered by PNZ
in relation to the Goods if:
(a) the Customer has not paid the price of the Goods (plus GST)
by the due date for payment; and
(b) any other amount owing by the Customer to PNZ is
overdue.
8. AUTHORISED RETURNS
8.1 If PNZ delivers the wrong Goods or Goods in excess of the
quantity ordered by the Customer or the goods are damaged
in transit to the Customer, the Customer may return the
wrong Goods or the Goods in excess of quantity ordered or
the damaged goods, to PNZ, at PNZ’s cost, if such Goods are
returned within 14 days of delivery by a carrier nominated by
PNZ.
8.2 Any Goods (other than the Goods to which clause 8.1
applies) may be returned to PNZ if:
(a) the Goods have been incorrectly ordered by the Customer
or the Customer otherwise wishes to return Goods and in
all cases the Goods are returned within 14 days in as new
condition; and
(b) PNZ in its absolute discretion agrees that the Goods may be
returned; and
(c) In all circumstances the condition of the Goods has not
deteriorated; and
(d) the return freight is at the customer’s cost.
(e) Where Goods are returned to PNZ under this clause 8.2
but not accepted as above they shall be returned to the
Customer at the Customer’s expense.
9. CONSUMER GUARANTEES ACT AND LIABILITY
9.1 If the Customer is a consumer under the Consumer
Guarantees Act 1993 (for the purposes of this clause 9, “the
Act”) and acquiring or holding itself out as acquiring Goods
for business purposes, the Act will not apply.
9.2 Subject to clause 9.3:
(a) The Customer relies upon its own knowledge, skill and
judgement in relation to the particular use or suitability of the
Goods for the Customer’s purpose.
(b) all warranties, descriptions, representations or conditions
whether implied by the Sale of Goods Act 1908 or otherwise
or contained in any document not furnished by PNZ are
expressly excluded to the fullest extent permitted by law;
and
(c) no liability will be accepted by PNZ for any damages or losses
arising from a consequence of any act, default or negligence
on the part of PNZ or of an employee, agent or contractor of
PNZ; and
(d) insofar as PNZ may be liable, notwithstanding clause 9.2(b),
for any loss, damage or injury arising directly or indirectly
from any defect in the Goods, total liability of PNZ, whether
in tort, contract or otherwise, will be limited to the lesser of
the price of the Goods complained of, the cost of repairing or
replacing the defective Goods and the actual loss or damage
suffered by the Customer; and
(e) PNZ will not be liable in any event for any consequential,
indirect or damage, loss or injury of any kind suffered by the
Customer.
9.3 If the Customer is a consumer under the Act, to the extent
that the Customer’s rights under the Act have not been
excluded under clause 9.1, nothing in these trading will affect
the rights of the Customer under the Act.
10. ACCOUNT SUSPENSION AND CLOSURE
10.1 Without prejudice to any other rights that PNZ may have,
PNZ may suspend a Customer’s account if payment for the
Goods is not made on the due date. An account suspension
may cause all unfulfilled orders from the Customer to be
cancelled.
10.2 PNZ may close a Customer’s account at any time for any
reason whatsoever, including without limitation, where:
(a) trade with PNZ is below $1,000 plus GST in any month;
(b) any of these trading terms is not observed; or
(c) the Customer has on more than three previous occasions
in any 12 month period failed to make payments required in
accordance with these trading terms notwithstanding that the
most recent invoice was paid on the due date,
and PNZ shall not be liable to the Customer for any loss
or damage which may result directly or indirectly from the
closure of such account
