Spiraweld Stainless Limited - General Sales Conditions
1.1 In these conditions the following words shall have the following meanings:
(a) “seller” means Spiraweld Stainless Limited and includes its employees, servants and assigns.
(b) “buyer” means the purchaser of goods and/or services from the seller.
(c) “delivery” means delivery in accordance with clause 4.3.
(d) “goods” means stainless steel pipes, fitting, bends consumables and other products supplied by the seller and, in respect of each order of goods from the buyer accepted by the seller, means the goods described in the invoice issued by the seller in respect of the relevant order, and all of buyer’s present and after-acquired property that the seller has performed services on or to or in which goods financed by the seller have been attached or incorporated with.
(e) “conditions” means these general sales conditions and, in respect of each order of goods from the buyer accepted by the seller, includes the invoice issued by the seller in respect of the relevant order.
(f) “PPSA” means the Personal Property Securities Act 1999.
(g) “seller’s premises” means premises located at 6 Rylock Place, Pakuranga, Auckland 2010, or such premises that the seller may occupy from time to time.
(h) “services” means services provided by the seller to the buyer which may include electropolishing, passivation, pickling and any other surface treatment that the seller may offer from time to time in accordance with the service guidelines (if any) as published on the seller’s website from time to time.
(i) “working day” means a day of the week other than—
(i) a Saturday, a Sunday, Waitangi Day, Good Friday, Easter Monday, Anzac Day, the Sovereign’s birthday, and Labour Day; and
(ii) a day in the period commencing with 25 December in a year and ending with 2 January in the following year; and
(iii) if 1 January falls on a Friday, the following Monday; and
(iv) if 1 January falls on a Saturday or a Sunday, the following Monday and Tuesday; and
(v) if Waitangi Day or Anzac Day falls on a Saturday or a Sunday, the following Monday.
(j) A reference in these conditions to any law, legislation or legislative provision includes any statutory modification, amendment or re-enactment, and any subordinate legislation or regulation issued under that legislation or legislative provision.
(k) A reference to the words “include” or “including” are to be interpreted without limitation.
(l) Where the context requires or admits, words importing the singular shall import the plural and vice versa.
(m) A word derived from a defined word shall carry a corresponding meaning.
1.2 Unless the seller and buyer otherwise agree in writing:
(a) these conditions shall apply to all sales of goods and no other conditions shall apply. In the event of any conflict arising between these conditions and any other document, including but not limited to the buyer’s order, the invoice and/or any terms and conditions hand-written on the face of this document, the seller may elect at its sole discretion which documents shall prevail;
(b) quotations by the seller remain open for acceptance within 15 working days from the date of the quotation;
(c) unless this quotation is accepted without qualification, the seller shall not be bound until the order is confirmed by the seller by a written acknowledgement or by delivery of the goods and/or performance of services; and
(d) the seller shall have the right to over or under deliver the quantity of goods and/or services ordered according to generally applied customs within the trade, as a rule plus/minus 10%.
2. PRODUCT INFORMATION AND STATEMENTS
2.1 The seller does not give any warranties to the buyer in respect of:
(a) the accuracy of any technical and other data given to the buyer in printed material relating to goods, unless the seller and the buyer otherwise agree in writing; and
(b) the conformity of delivered goods to any samples supplied.
2.2 All drawings and technical documents delivered by one party to the other party shall remain the property of the first party and must not be used by the other party or reproduced or brought to the knowledge of third persons without the consent of the first party. Where the seller has made any goods to the specifications supplied by the buyer the buyer shall indemnify the seller from any cost, claim, loss or expense arising as a result of those specifications infringing or being alleged to infringe any patent, copyright, registered design or other intellectual property right of any other person.
2.3 No employee, agent or representative of the seller is authorised to make any representations, statements, warranties or agreements not expressed in these conditions or agreed in writing by the seller.
3. INSPECTION AND SPECIAL TESTING
3.1 All inspection and special testing (if required by the buyer) relating to goods and documentation relating to such inspection and testing requested by the buyer shall be paid for by the buyer in addition to the purchase price for the goods. Unless otherwise agreed in writing.
4. DELIVERY AND RISK
4.1 Goods are offered to the buyer subject to availability and the seller shall not be responsible or liable in any way to the buyer for delays or defaults or consequential loss or damage arising therefrom.
4.2 Delivery shall occur when the goods have either been reported by the seller to the buyer as ready for dispatch or for inspection if inspection has been requested by the buyer.
4.3 Risk in the goods shall pass to the buyer from the seller when delivery occurs in accordance with clause 4.2.
4.4 The buyer shall collect the goods as soon as services have been performed on them. Goods left on premises after delivery in accordance with clause 4.2 shall be at buyer’s sole risk.
4.5 If the buyer requires the goods to be sent to them, they may request for the seller to arrange freight. The seller is not responsible for the goods after delivery under clause 4.2 and the buyer must arrange insurance of goods. The seller is not responsible for any loss of damage to goods in transit.
5. DELAY IN DELIVERY
5.1 If either party finds that it is probable that it will not be able to comply with the agreed date of delivery it shall immediately notify the other party of an alternative delivery date.
5.2 If a delay in delivery is caused by the seller the buyer shall have the right to cancel the order upon receipt of a notice in accordance with clause 5.1, if the seller was aware that the delay in delivery would have caused the buyer loss.
5.3 If a delay in delivery is caused by the buyer, the seller shall have the right to delay delivery for such period as it considers reasonable, or to cancel the order with respect to the delay in delivery.
5.4 Upon receiving notification in accordance with clause 5.1, the buyer, or the seller, as appropriate, if it intends to cancel the order under clause 5.2 or 5.3 shall do so without delay. If the order is not cancelled then the delivery date notified pursuant to clause 5.1 shall apply.
5.5 The party who has caused delay shall not be liable for any penalty or damages as a result of that delay in delivery of goods or performance of services.
6. INSOLVENCY / BANKRUPTCY OF THE BUYER
6.1 If before delivery there arises reasonable grounds for belief that the buyer will not be able to fulfil its payment obligations to the seller on the required date, the seller shall have the right to demand security or payment in advance of delivery. If security to the reasonable satisfaction of the seller is not offered or, if payment in advance of delivery is not made without delay, the seller may cancel the order.
6.2 Where the seller has reasonable cause to believe the buyer has or will commit an act of bankruptcy or (being a Company) has had a receiver appointed or is about to be appointed or is declared or becomes insolvent, the seller may repossess any or all of the goods supplied and may at any time of the day or night enter by force if necessary upon any premises where such goods are reasonably thought to be stored.
6.3 The buyer shall indemnify the seller against any claims, costs and liabilities arising from the exercise its rights under 6.1 and 6.2 above.
7. DEFECTS AND LIABILITY
7.1 When the delivery of goods occurs, the buyer shall inspect the goods thoroughly and carry out its own investigations to ascertain that these are appropriate for buyer’s intended use and purpose.
7.2 If the buyer finds a defect it shall specify the extent of the defect within 10 working days after delivery of goods. If the buyer does not notify the seller of defects that it has discovered or ought to have discovered within the time limits stated above it shall be deemed to have waived any claim against the seller.
7.3 It is agreed by the seller and buyer that:
(a) the buyer shall have no claim against the seller except where the buyer proves to the seller’s satisfaction that the goods are faulty due to defective workmanship or materials. Where the buyer proves such a defect and elects to return the goods to the seller within 10 working days after receipt of goods, the seller will at its own cost and at its option repair or replace the faulty goods and shall pay for reasonable transportation costs for the defective goods but shall not be liable to pay for costs of dismounting, mounting and processing of the goods;
(b) The buyer shall have no claim against the seller if the buyer has put the goods through further processing; and
(c) The liability of the seller, shall be limited to the lesser of the cost of replacement or repairs of the goods and shall not include damages for indirect or consequential loss.
8. CONSUMER GUARANTEES ACT 1993
8.1 The guarantees contained in the Consumer Guarantees Act 1993 (“Act”) are expressly excluded where the buyer acquires or holds itself out as acquiring the goods for the purposes of a business.
8.2 Where the seller supplies goods to the buyer as a “consumer” as defined in the Act for a non-business purpose the Act will apply and prevail over any contrary provision in these conditions.
8.3 Where in any case the buyer is a “supplier” (as that term is defined in Section 2 of the Act) then:
(a) the buyer shall notify any “consumer” prior to any sale of any defects or limitations in the goods and/or any common purpose for which the goods are not suitable; and
(b) the buyer shall, to the extent that the consumer is acquiring goods for the purposes of a business contract out of the provisions of the Act to the extent permitted by law and shall not give or make any undertaking, assertion or representation to such customers in relation to the goods without the sellers’ prior approval in writing.
8.4 The buyer acknowledges that the seller does not provide any “express guarantees” (as defined in the Act) other than those expressly confirmed by the seller in writing.
8.5 The buyer agrees to indemnify the seller against any liability of cost incurred by the seller under the Act as a result of any breach by the buyer of its obligations contained in these conditions. The buyer agrees to notify the seller in writing as soon as is reasonable of any defects in the goods and the nature of such defects.
8.6 Whenever the Act does not apply to these conditions the seller accepts no liability for any claim in respect of the goods by the buyer or any other person, including without limitation any claim relation to or arising from any conditions, warranties, descriptions, representations, conditions as to fitness or suitability for any purpose, tolerance to any conditions, merchantability or otherwise, whether express or implied by law, trade custom or otherwise or any representations, warranties, conditions or agreement made by the buyer which are not expressly confirmed by the seller in writing and the buyer agrees to indemnify the seller against any such claim.
9. EXCLUSION OF LIABILITY
9.1 The seller shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond seller’s control.
9.2 The seller shall not be responsible for any damages whatsoever caused either to the goods supplied or as a result of the services provided or malfunction of such goods in the event that such goods are fitted by unqualified tradesman or if such goods be fitted in any un-tradesman like manner and/or if such goods are in any way adapted to a use to which they are not specifically intended for and/or if such goods be added to or repaired using components not recommended or approved by the manufacturer of such goods.
9.3 The seller will not accept responsibility for damage resulting from buyer misuse, tampering, unauthorised modification, improper transportation or storage, or accident of goods. The seller shall not be liable for incidental or consequential damages arising from the sale or use of goods supplied by the seller. Such damages include, but are not limited to, costs of removal and reinstallation of goods costs of testing, loss of goodwill, loss of profits, or loss of use.
9.4 The seller’s liability shall at all times be limited to the value of any defective goods or services supplied and the seller will not be liable to the buyer for loss or damage of any kind however that loss or damage is carried or arises. For certainty, this limitation of liability includes but is not limited to costs (including costs of returning goods to the seller) indirect or consequent loss, loss of contracts, loss of profits, damage caused by or arising from manufacture or delivery, faulty or delayed installation, unreasonable use, negligence, faulty specifications and design, or faulty materials or components of the goods.
10. PURCHASE PRICE
10.1 Unless otherwise stated all prices quoted are exclusive of Goods & Services Tax (“GST”), insurance, freight and handling charges in addition to the quoted prices. The seller reserves the right to revise its prices at any time prior to accepting on order. Receipt of an order by the seller from the buyer does not constitute acceptance by the seller.
10.2 The prices quoted may be revised by the seller subsequent to accepting an order in the event of any occurrence affecting delivery caused by war, government action, variation in customs duties, increased shipping charges, higher foreign exchange costs and any other matter beyond the control of the seller. In that event the buyer shall have the right to withdraw the order.
11. PROVISION OF SERVICES
11.1 The seller shall provide the services in accordance with the customer guidelines as published on seller’s website from time to time and the buyer shall purchase the services having regard to those guidelines and in accordance with the conditions. It is the buyer’s responsibility to ascertain whether the services can be carried out on the goods. The buyer needs to familiarise themselves with the relevant customer guidelines relating to the specific services.
11.2 In the event the seller is unable to provide the services, the seller may subcontract any third party to provide all or any part of the services with the buyer’s prior written approval (such approval not to be unreasonably withheld).
11.3 In its performance of the services, the seller will ensure:
(a) that competent and suitably experienced persons carry out all work, in a professional manner and in accordance with the appropriate standards; and
(b) that it has the necessary materials, plant, equipment and facilities to execute the services required under the conditions and will provide such things at its own cost unless expressly specified otherwise.
11.4 In respect of the services provided, the seller will endeavour to wash the goods as best they can, however the goods may have cavities which are either sealed or difficult to flush, which may result in acid leaking out over time. The buyer acknowledges this risk and accepts full responsibility.
12.1 Payment for goods and services supplied and any inspection charges, freight or insurance charges and goods and services tax shall be made by the buyer to the seller in cleared funds:
(a) no later than the 20th day of the month following the month within which the goods were delivered; or
(b) upon delivery of the goods,
unless the seller has otherwise agreed in writing and the buyer acknowledges and agrees that the seller retains sole discretion at all times to elect any method of payment required.
12.2 The seller may set-off:
(a) any amount owing by the seller to the buyer from any amount owing by the buyer to the seller; and
(b) any amount in credit in any account of the buyer with the seller against any amount owing by the buyer to the seller under another account of the buyer.
12.3 If the buyer’s account remains overdue for more than 10 working days, the seller retains sole discretion to place the buyer on “cash only” terms or “no further supply” terms until the buyer makes payment for all amounts owing to the seller in cleared funds and in full.
13.1 All overdue accounts shall bear interest at the rate of 7% per month, calculated on a daily basis from the due date for payment until the time of actual payment but without prejudice to the seller’s other rights and remedies in respect of buyer’s default in failing to make full payment on the due date.
13.2 The buyer will upon demand pay to the seller all moneys (including but not limited to solicitor costs, count cost and disbursements) incurred by the seller in recovering payment of any overdue amount.
13.3 Payments by the buyer shall be applied first in the reduction of interest, liquidated damages and costs due pursuant to 13.1 and 13.2, the balance then being in reduction of any amounts due under 12.1.
14. TITLE TO GOODS
14.1 Until payment in full of all indebtedness to the seller in relation to the supply of the goods to the buyer, the seller and the buyer agree that:
(a) the title to the goods supplied remains with the seller;
(b) the buyer shall keep full and complete records of the goods;
(c) the buyer shall store and identify all goods supplied in such a way that it is clear that they are the property of the seller and all storage and insurance costs shall be met by the buyer;
(d) the buyer shall return the goods if requested to do so by the seller following non-payment of any amount owing by the buyer to the seller or non-fulfilment of any other obligation of the buyer to the seller, without limiting any other right the seller may have;
(e) the buyer hereby irrevocably gives the seller, its agents and servants, license upon giving reasonable notice to enter on and into premises occupied by the buyer to inspect, search for and remove any of the goods supplied and if the goods or any of them are wholly or partially attached to or incorporated in any other goods the seller may where practical disconnect or sever the goods in any way whatsoever as may be necessary to remove the goods without in any way being liable to the buyer or any person claiming through the buyer;
(f) if the seller exercises its right to reclaim any goods in the buyer’s possession or control (including any goods that have become an accession under the PPSA) it shall be entitled to remove the goods and either dispose of them or retain them for its own benefit and for that purpose the seller may, without notice, enter directly or by its agents, on any premises where it believes goods may be stored, without in any way being liable to any person, and the buyer shall indemnify the seller for:
(i) any loss in price incurred by it on realisation against the price at which such goods were contracted to be bought by the buyer;
(ii) any costs incurred by the seller in exercise of its right to reclaim the goods whether relating to the repossession, storage or resale of the goods (including legal costs as between solicitors and own client);
(iii) the buyer shall not change its name, address or contact details without providing the seller with at least 20 working days prior written notice; and
(iv) nothing in this clause shall be construed as permitting the buyer to return the goods or any part of them for any reason.
15. SECURITY INTEREST FOR SERVICE
15.1 The buyer gives the seller a security interest in all of buyer’s present and after-acquired property that the seller has performed services on.
16. PERSONAL PROPERTY SECURITIES ACT 1999 (PPSA)
16.1 The buyer acknowledges that it has received value as at the date of first delivery of the goods and has not agreed to postpone the time for attachment of the security interest (as defined in the PPSA) granted to the seller under these conditions.
16.2 Until ownership of the goods passes, the buyer agrees to waive its right under the PPSA to:
(a) receive a copy of any verification statement;
(b) receive a copy of any financing change statement;
(c) receive any notice that the seller intends to sell the goods or to retain the goods on enforcement of the security interest (as defined in PPSA) granted to the seller under these conditions;
(d) object to the seller’s proposal to retain the goods in satisfaction of any obligation owned by the buyer to the seller;
(e) receive a statement of account on sale of the goods;
(f) redeem the goods; and
(g) where any good becomes an accession, as defined in the PPSA, receive notice of removal of the accession, apply to the court for an order concerning the removal of the accession and not have any goods damaged when the seller removes the accession.
16.3 The buyer must not:
(a) give to the seller a written demand, or allow any other person to give the seller a written demand requiring the seller to register a financing change statement, or lodge a change demand or allow any other person to lodge a change demand, in each case in relation to a financing statement registered by the seller under the PPSA;
(b) enter into or accept, or allow any other person to enter into or accept, a financing change statement in relation to a financing statement registered by reference to it under PPSA; or
(c) consent to or enter into any agreement which permits any supplier or other person to register a security interest in respect of the goods (whether in an accession or otherwise) which ranks in priority to the seller’s rights as first ranking security holder.
16.4 The buyer is to execute documents and do such further acts as may be required by the seller to register the security interest granted to the seller under these conditions, under the PPSA or for any other purpose whatsoever.
17. GENERAL LIEN AND SELLERS RIGHT TO DEAL WITH ABANDONED GOODS
17.1 The buyer agrees that the seller may exercise a general lien against any good or property belonging to the buyer that is in the possession of the seller for all sums outstanding under these conditions.
17.2 If the buyer does not pay the sums outstanding to the seller within 7 working days of the due date the seller may, having given notice of the lien at its option either:
(a) remove such goods and store them in such a place and in such a manner as seller shall think fit and proper and at the risk and expense of the buyer; or
(b) sell goods or part thereof upon such terms as it shall think fit and apply the proceeds in or towards discharge of the lien and costs of sale without being liable to any person for damage caused.
17.3 If the buyer does not collect the goods after delivery, then the seller reserves the right to elect to deal with the goods as outlined in clause 17.2 (a) or 17.2 (b), or to remove the goods from the seller’s premises and forward them to a refuse collection centre. The cost of removal of the goods shall be recoverable from the buyer and the seller shall not be liable to pay any compensation nor be liable for any loss suffered by the buyer.
18. NON-WAIVER / VALIDITY
18.1 All rights power and remedies of the seller shall remain in full force notwithstanding any neglect forbearance or delay in enforcement.
18.2 If any provisions of these conditions shall be invalid, void or illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
19.1 The buyer may not assign any of their rights or obligations under these conditions.
20.1 The parties will work together in good faith to resolve any disputes.
20.2 If the parties are unable to resolve the dispute in accordance with 20.1, then the seller shall at their discretion refer the dispute to mediation or arbitration. The Arbitration Act 1996 (or any replacement of that Act) shall govern the arbitration.
21.1 The buyer authorises the seller to collect, retain and use information about the buyer as the seller may require for the purposes of: administering the buyer’s account, carrying out and delivery of goods and services, enforcing any rights in respect of the goods and services.
21.2 The seller stores the buyer’s information at 6 Rylock Place, Pakuranga in a safe and secure place.
21.3 The seller may disclosure the buyer’s information to suppliers in order to complete delivery of goods and or services or to enforcement agencies.
21.4 The buyer has the right of access to and to seek correction of their personal information held by the seller.
22. GOVERNING LAW
22.1 These conditions shall in all respects be deemed to be a contract made in New Zealand and the constructions, validity and performance of the contract shall be governed by New Zealand law. The exclusive jurisdiction of the New Zealand courts to entertain all claims and actions arising out of the conditions is accepted and acknowledged by the buyer provided however that the seller shall be entitled to commence any action arising out of or in respect of the conditions in any court.