TERMS OF SALE – Big Water Tanks Limited
1.1 These Terms shall apply to all orders accepted by the Company or quotations approved by the Customer or Goods help by BWT (Big Water Tanks Limited). Any provision of an order of the Customer which is inconsistent with or additional to these Terms is excluded from contracts between BWT and the Customer.
1.2 No order requiring special purchase of raw materials for the exclusive use of the Customer or for product to be produced from the Customer’s own specific product may be cancelled without the consent of BWT, and in such cases the Customer will be liable to pay BWT all costs and expenses incurred by BWT in fulfilling the order to the date of cancellation.
2.1 The price shall be those prevailing at date(s) of dispatch from BWT’s premises or such pricing as covered in a written contract between BWT and the customer.
2.2 All prices are subject to change without notice unless specifically held for a fixed time period as per a written quote of BWT’s accepted by the customer.
2.3 Unless expressly noted on the price list or contract all prices quoted exclude GST and are quoted on an ex-factory basis excluding freight to the customer.
3.1 Delivery of the goods to the Customer occurs
(a) when actually delivered by BWT or their Freighter regardless of whether the Customer accepts delivery or
(b) on collection of Goods from BWT premises by the customer or their freighter.
3.2 Any timeframe, which BWT quotes for delivery is an estimate only.
3.3 BWT may cancel the order if it determines that it will be unable to deliver the goods within a reasonable time.
3.4 The Customer shall have no claim against BWT if BWT cancels the order or fails to deliver (for any reason) the goods, or if there is a delay in delivery of the goods.
3.5 The quality, quantity and condition of the goods must be checked at the time of delivery.
3.6 BWT will only allow a credit for shortages or damage if this has been noted on the delivery docket at the time of delivery. An endorsement “Subject to check” is not valid.
4.1 Unless BWT has agreed to extend credit, payment is to be made by the Customer in cash before delivery.
4.2 Subject to 4.1 and 4.8, the Customer must pay for the goods on or before the 20th of the month following the date of the invoice or as otherwise agreed in writing between the customer and supplier.
4.3 BWT may withhold supply, and/or require the Customer to pay cash in full prior to delivery if in BWT’s opinion the credit worthiness of the Customer becomes unsatisfactory.
4.4 If the Customer has not paid in full by the due date, BWT may:
(a) with-out prejudices to any other remedy, charge the Customer interest on the overdue monies from the date of delivery of the goods until paid in full. The interest rate shall be 5% per annum above BWT’s Banker’s Commercial Overdraft rate (calculated on a daily basis).
(b) pursue an action for the price of the goods for which payment has not been made, even though property in the goods remains with BWT.
(c) enforce its title rights under clause 6.
4.5 The Customer must pay BWT in full for the goods delivered even if:
(a) there was a delay in delivery of the goods;
(b) the Customer disputes the quality, quantity or condition of the goods delivered unless the customer gives notice of the dispute within seven (7) days of the delivery date.
4.6 All payments must be made in New Zealand dollars.
4.7 The Customer must pay to and indemnify BWT against all costs and expenses incurred (including legal costs on a solicitor client basis) by BWT in connection with:
(a) default by the Customer under these Terms.
(b) the recovery of any moneys due and payable but unpaid by the customer; and
(c) the exercise or attempted exercise by BWT of any power conferred on it by these Terms and Conditions
4.8 If one of the specified events in 7.1 occurs payment shall become due immediately of all amounts owing to BWT from the customer.
5.1 The risk of loss or damage to the goods shall pass to the Customer on delivery.
5.2 The risk of loss or damage to any mold or other goods owned by the Customer but held on BWTs premises shall remain with the Customer.
6.1 Until the Customer has paid for the goods in full and also paid all other monies due and payable to BWT by the Customer.
(a) property in the goods shall remain with or transfer to BWT so that BWT has absolute and unencumbered title in the goods.
(b) the Customer shall hold the goods as bailee.
(c) the Customer shall store the goods in a way that clearly indicates BWT’s title to the goods.
6.2 If the Customer sells the goods to its customers, the customer, in its position as a fiduciary, assigns to BWT the benefit of any claim against the customers and shall hold on trust and account to BWT for all proceeds of sale. If the Goods have become the constituent of mixed with or attached to any other goods, meaning Goods that are sold by BWT and those goods are sold by the Customer prior to BWT receiving payment, then a portion of the proceeds of that sale, attributable to BWT's Goods shall be the property of BWT, and the Customer shall ensure that such proceeds are at all times held in a separate fund in trust for BWT. This reservation of title and ownership is effective whether or not the Goods have been altered from that supplied or mixed with other goods or materials owned by the Customer. Where such Goods are altered or mixed and are severable but not identifiable or where it is impractical to remove the Goods without incurring loss to an innocent third party, the Customer shall agree to give BWT an ownership interest in the property of the Customer in proportion to the contribution made by the Goods to the value of the Customer's property.
6.3 This clause shall apply even though BWT may give credit to the Customer.
6.4 Upon accepting these Terms the Customer acknowledges that:
(a) these Terms are security agreement for purposes of section 36 of the Personal Property Securities Act 1999 (“PPSA”). For the purposes of the PPSA, Collateral shall include all and any Goods supplied and the proceeds thereof. The Customer shall agree not to allow any person to file a finance statement over any of the Collateral secured by this Security Agreement without the prior written consent of BWT. and
(b) a security interest is taken in all Goods previously supplied to the Customer and in any and all Goods that will be supplied
in the future by BWT to the Customer during the continuance of the parties relationships.
6.5 The Customer undertakes to:
(a) Sign any further documents and/or provide any further information which BWT may reasonably require to register financing statements or financing change statements on the personal Properties Securities Register,
(b) Give BWT not less than 14 days prior written notice of any proposed change to the Customer’s name and will use its best endeavors to ensure that a financing change statement is registered disclosing its new name; and
(c) Immediately advise BWT of any material change in its business practices of selling the Goods which would result in a change of the nature of proceeds derived from such sales.
(d) Unless otherwise agreed in writing by BWT the Customer shall inform its creditors of the terms upon which it buys Goods from BWT and that BWT may create and register a Purchase Money Security Interest under the PPSA for the Goods and that the Customer agrees to waive the right to receive a verification statement for purposes of s.148 of the Act. The Customer shall also inform any Trustee in Bankruptcy or Liquidator of the Customer or any Receiver of the Customer’s business or assets of the rights of BWT and title to the proceeds of sale.
6.6 The Security Agreement is a continuing security and will operate irrespective of any intervening payment or settlement of account until a release has been signed by BWT. The security interest granted in the Collateral has the same priority in relation to all and any Goods supplied to the Customer by BWT at any time.
6.7 In addition to any other obligation, the Customer indemnifies BWT for any costs BWT incurs in registering or maintaining, and/or in enforcing or attempting to enforce the security interest created by these terms.
7 RIGHT OF ENTRY AND RESALE.
7.1 If the Customer owes BWT anything and.
(a) (being a natural person) commits an act of bankruptcy.
(b) (being a company) does anything which entitles anyone to apply to liquidate the Customer or appoint an administrator or receiver, or receiver and manager of the Customer is appointed.
(c) breaches any of these Terms.
(d) ceases trading.
(e) requests return of any assets held by BWT that the customer believes it owns.
BWT may take possession of and resell the goods and exercise all rights in 6.
7.2 The Customer authorizes BWT to enter premises where the goods may be located to take possession of the goods. The Customer indemnifies BWT against all claims arising out of the entry by BWT to premises to take possession of the goods. For Goods supplied within New Zealand repossession will be conducted in accordance with the Credit (repossession) Act.
8.1 BWT will only accept goods returned by the Customer and allow a credit for them if:
(a) the goods are returned within seven (7) days of the delivery day; and
(b) the goods returned are accompanied by advice of BWT’s original invoice number relating to them; and
(c) the goods were damaged at the time the Customer took delivery of them and the damage was noted on the delivery docket at the time of delivery or the goods were not those specified in the order; and
(d) the goods are returned in the condition in which they were delivered or collected.
9.1 All conditions and warranties expressed or implied by law, custom or otherwise are expressly excluded to the extent permitted by law. Where so permitted, the liability of BWT for a breach of a condition or warranty, that cannot be excluded, is limited, at BWT’s option, to the replacement of the goods or the supply of equivalent goods, or the cost of replacing the goods or acquiring equivalent goods.
9.2 So far as the law permits, BWT shall not be liable for any loss which may be suffered by the Customer for any reason, including, but not limited to, delay, negligence or any act, matter or thing done or permitted or omitted to be done by BWT.
9.3 Any information (including drawings, specifications, catalogues, particulars of weight and dimensions) supplied or advise or recommendations given by BWT or its employees or agents to the Customer is approximate only and is supplied in good faith and BWT gives no guarantees of results and assumes no obligation whatsoever in connection with such information advice or recommendations. In particular no warranty is given by BWT that any materials supplied are fit for any particular purpose and the Customer purchases any goods in reliance of its own judgment.
9.4 BWT will not be liable for any losses of any kind or any delay in performing obligations under these terms caused in whole or in part by any act of God, natural disaster, flood or earthquake, strike, lockout, fire, war, civil commotion, inability to obtain products or supplies including the imposition of any export or import bans, or any other cause beyond reasonable control.
9.5The customer warrants that any design or instruction it requests BWT to follow will not cause BWT to infringe any patent, registered design, trademark, copyright or any other intellectual or industrial right.
9.6Where BWT follows any design or instruction given by the customer in 9.5, the customer will indemnify BWT against any damages, penalties, costs, and expenses for which BWT may become liable.
10.1 Any notice to be given by BWT or the Customer to the other must be in writing and may be given by facsimile, post or hand delivered to the other’s business address as last known to the party giving it.
10.2 A notice:
(a) given by facsimile shall be deemed to be given on the business day following the day it is sent.
(b) sent by pre-paid post shall be deemed to be given on the business day following the day on which it was posted.
(c) delivered by hand shall be deemed to be given when delivered.
11 ENTIRE AGREEMENT
11.1 These Terms constitute the entire agreement or contract between BWT and the Customer for the supply of goods by BWT.
11.2 The Customer acknowledges that neither BWT nor anyone purporting to act on its behalf has made any representation or given any promise or undertaking which is not expressly set out in writing, whether as to the fitness of the goods for any particular purpose or any other matter.
11.3 BWT may alter these Terms:
(a) without notice if done so at the request of the Customer, or the Customer is in default of any of these Terms.
(b) in any other case, on giving seven (7) days prior written notice to the Customer.
11.4 No addition to, nor any variation or waiver of, these Terms, nor any Terms put forward by the Customer printed on the Customer’s written order with BWT shall have any legal effect unless expressly agreed to in writing on behalf of BWT by an authorized employee of BWT.
12 GENERAL
12.1 These Terms shall be governed by and construed in accordance with the Laws of New Zealand and BWT and the Customer submit to the jurisdiction of the Courts of New Zealand.
12.2 The Customer shall not assign any of its rights or obligations contained in these Terms without the prior written consent of BWT.
12.3 Failure by BWT to insist upon strict performance by the Customer of any terms or conditions contained in these Terms shall not be taken to be a waiver or to in any way prejudice any right of BWT in relation to those Terms and shall not be taken to be a waiver of the same Terms on any subsequent occasion.
12.4 Placing an order and/or Acceptance of delivery of any goods will be deemed to be acceptance by the Customer of these Terms.
12.5 These Terms shall apply to all contracts for the supply and/or storage of goods (“goods”) made with Big Water Tanks Limited (“BWT”) and the person, partnership or company purchasing or supplying the goods (the “Customer”). “Goods” includes raw materials, accessories, packaging, manufactured products, services, design, storage of goods and assets (including customer’s assets supplied for BWT to manufacture product from).
12.6 The Customer agrees with BWT to keep all information and communications (both written and oral) between the Customer and BWT from time to time strictly confidential.
12.7 If any provision of these Terms is or becomes void or unenforceable, then those provisions will be severed from these Terms and replaced with provisions which validly and enforceably accomplish (to the extent possible) those provisions’ objectives and in that case the rest of these Terms will remain valid and enforceable.