Terms and Conditions
SNUG INSULATION LTD CONDITIONS OF SALE
INTERPRETATION(a)These conditions of sale are entered into on behalf of and are intended to bind the Buyer and enure to the benefit of the Company and the Company’s successors and assigns.
(b)In these conditions:
“Company” means SNUG INSULATION LIMITED;
“Buyer” means the person, firm, company or other entity buying the Goods from the Company and includes an agent of the Buyer;
“Goods” means the goods being purchased by the Buyer from the Company which are subject ofthe Contract;
“Contract” means the Contract between the Company and the Buyer for the purchase of the Goods;“Date of Contract” means:
(i)where the Contract arises from an order placed by the Buyer, the date of acceptance of theorder by the Company, or
(ii)where the Contract arises from a quotation given by the Company, the date upon which writtennotification of acceptance of the quotation is received by the Company or, where no writtennotification of acceptance of the quotation is received by the Company, the date of such other form of acceptance as the Company in its discretion determines to treat as a valid acceptance.
“Contract Price” means the price of the Goods as agreed between the Company and the Buyer, subject to any variation in accordance with clauses 1 or 2;
“Consumer” means consumers as defined by the Consumer Guarantees Act 1993 who are not excluded by clause 18;
“Specifications” means the written specifications for each product supplied by the Company; “Person” includes a corporation, association, firm, company, partnership or individual.
(c)Headings are used as a matter of convenience only and shall not affect the interpretation of theseconditions.
(d)Reference to clause and sub-clause refers to clauses and sub-clauses of this agreement.
1.PRICE
(a)The price contained in the Contract is based upon rates and costs as at the Date of the Contract, or where the Contract arises from a quotation given by the Company, as at the date of quotation for materials, transport, labour, customs duty, insurance and other rates and costs.
(b)The price of the Goods shall be increased by the amount of any increase in the cost of any such items or other factors (including any change in exchange rates) affecting the cost of supply, production and/or delivery of the Goods due to circumstances beyond the control of the Company between the Date of the Contract and the date of delivery.
(c)The price of the Goods shall be increased by the amount of the Company’s standard packing charges in force at the date of delivery.
2.TAXES AND DUTIES
(a)Unless expressly included in any quotation given by the Company, goods and services tax and other taxes and duties assessed or levied in connection with the supply of the Goods to the Buyer are not included in the price and shall be the responsibility of the Buyer or, where the payment of such taxes or duties is the responsibility of the Company at law, the price shall be increased by the amount of such taxes or duties.
(b)Where goods and services tax or other taxes or duties are expressly included in any quotation given by the Company, any increase in the amount of such goods and services tax or other taxes and duties between the date of the quotation and the date of delivery of the Goods shall be the responsibility of the Buyer and the price shall be increased accordingly.
3.PAYMENT
(a)The payment must be made in full no later than the invoice due date.
(b)Any additional payments due by the Buyer pursuant to any of the provisions of the Contract shall be paid according to the credit term which is the same as above unless otherwise arranged.
(c)If the Company shall at any time deem the credit of the Buyer to be unsatisfactory, the Company may require security for payment and may suspend performance of the Company’s obligations under the Contract until the provision of sufficient security. All costs and expenses of or incurred by the Company as a result of such suspension and any recommencement shall be payable by the Buyer on demand.
(d)The Buyer shall not be entitled to withhold payment or to make any deductions from the Contract Price without the prior written consent of the Company.
(e)Receipt of a cheque, bill of exchange, or other negotiable instrument by the Company shall not constitute payment and the Buyer shall remain liable for the Contract Price until such cheque, bill of exchange, or negotiable instrument is paid in full.
(f)If the Buyer fails for any reason to acquire the quantity of goods sold then without limiting the other rights and remedies of the Company the unit price charged for the Goods may be amended to take into account any variation to the total quantity purchased.
(g)Credit terms will be put on hold if any payment is in arrears.
4.LATE PAYMENT
(a)Compound interest at the rate of 2.5% per month shall be payable on any moneys outstanding underthe Contract from the date payment is due until the date payment is received by the Company butwithout prejudice to the Company’s other rights or remedies in respect of the Buyer’s default infailing to make payment on the due date.
(b)Any expenses, costs or disbursements incurred by the Company in recovering any outstandingamounts including debt collection, agency fees and legal costs as between solicitor and own clientshall be paid by the Buyer upon demand.
(c)The Company reserves the right to claim property and assets in lieu of unpaid debts. This assets canbe sold as recompense for non-payment and cost of disposal will also be included in the repaymentfee.
5.DELIVERY
(a)Delivery shall be made at the place indicated in the Contract or, if no place shall be indicated in the Contract (and in the case of sales ex-works), delivery shall be made at the Company’s premises.
(b)If the Buyer fails or refuses or indicates to the Company that it will fail or refuse to take or acceptdelivery, then the Goods shall be deemed to have been delivered when the Company was willing todeliver them.
(c)The Company reserves the right to deliver the Goods by instalments and each instalment shall bedeemed to be a separate contract with the same provisions as the main Contract. Should theCompany fail to deliver or make defective delivery of one or more instalments this shall not entitlethe Buyer to repudiate the main Contract.
(d)Without prejudice to any other rights and remedies which the Company may have, the Companymay charge the Buyer storage and transportation expenses if the Buyer fails or refuses to take oraccept delivery or indicates to the Company that it will fail or refuse to take or accept delivery at thetime specified in the Contract or at any other times that the Company is able to deliver the Goods.
6.RISK
(a)Risk of any loss, damage, or deterioration of or to the Goods shall be borne by the Buyer:
(i)where the Goods are to be delivered into the Buyer’s store in any city of New Zealand, from the date of delivery of the Goods.
(ii)where the Goods are to be delivered to the Buyer at any other location, from the date when the Goods are delivered to the forwarding carrier at the city in New Zealand closest to the location.
(b)Until property in the Goods passes to the Buyer, the Buyer shall keep the Goods insured in the names of the Company and the Buyer for their respective rights and interests and will produce tothe Company upon demand such evidence as the Company may require to confirm the existence ofsuch insurance.
(c)If the Buyer defaults in the performance of its obligations under clause 6(b) of these conditions, theCompany shall be entitled to insure the Goods and the cost of effecting such insurance shall bepayable by the Buyer to the Company upon demand.
(d)
(i) If any of the Goods are damaged or destroyed prior to property therein passing to the Buyer, the Company shall be entitled, without prejudice to any of its other rights or remedies under the Contract or in law, to receive all insurance proceeds which are payable in respect thereof (whether or not the purchase price of such Goods has become payable under the Contract).
(ii)The production of this Contract by the Company shall be sufficient evidence of the Company’sright to receive payment of such insurance proceeds without the need for further enquiry byany person dealing with the Company.
(e)Any such insurance proceeds referred to in clause 6(d) shall be applied by the Company as follows: (i)first, in payment of the purchase price of the Goods which are damaged or destroyed, if unpaid;
(ii)secondly, in payment of the outstanding purchase price of any other Goods supplied to the Buyer by the Company, whether under the Contract or otherwise;
(iii)thirdly, in payment of any other sums payable to the Company by the Buyer whether under the Contract or otherwise;
(iv)thereafter, any balance shall be paid to the Buyer.
(f)(i)If for any reason the Buyer fails to accept delivery of the Goods when they are delivered to butnot accepted by the Buyer then the risk in the Goods shall, unless otherwise determined by theCompany in writing, pass to the Buyer from the date of the failure to accept delivery by theBuyer.
(ii)In any event the Company shall be entitled to payment for the Goods as if they were deliveredand accepted by the Buyer.
(iii)In addition to any of the rights and remedies (including its right to sell the Goods) the Company may arrange storage of the Goods at its warehouse or some other place it considersreasonable and all costs of and incidental to such storage shall be paid by the Buyer.
7.PROPERTY
(a)Property in the Goods shall pass from the Company to the Buyer when the Contract Price and allother moneys payable under the Contract have been paid in full.
(b)Until the Contract Price and all other moneys payable by the Buyer to the Company under theContract have been paid in full, property in the Goods shall be retained by the Company until theGoods are resold by the Buyer pursuant to the authority granted by clause 7(c).
(c)Notwithstanding that property in the Goods is retained by the Company, the Buyer is hereby authorized to sell the Goods in the ordinary course of business PROVIDED THAT such authoritymay be revoked by written notice from the Company at any time if:
(i)the Company deems the credit of the Buyer to be unsatisfactory or if the Buyer is in default inthe performance of its obligations under the Contract or any other Contract between theCompany and the Buyer, and shall be deemed automatically revoked if;
(ii)the Buyer dies or permits any judgment against the Buyer to remain unsatisfied for 7 days orany distress, execution, or other legal process is levied upon the Buyer or if the Buyer shallcommit any act of bankruptcy, enter into any composition or arrangement with the Buyer’screditors or (in the case of a company) do any act which would render it liable to put intoliquidation by the Court or if a resolution is passed or an application is filed for putting theBuyer into liquidation or a receiver is appointed in respect of all assets of the Buyer.
(d)The Buyer acknowledges that the Company’s retention of title in clause 7(b) gives rise to a security interest in all present and after acquired Goods supplied by the Company to the Buyer to secure the Buyer’s performance of its obligations to the Company.
(e)The Customer undertakes to:
(i)promptly do all things, execute all documents and/or provide any information which theCompany may reasonably require to enable the Company to perfect and maintain theperfection of its security interest (including by registration of a financing statement);
(ii)give the Company not less than 14 days’ prior written notice of any proposed change in its name and/or any other change to its details;
(iii)immediately on request by the Company (and at the Buyer’s expense) obtain from any thirdparty such agreements and waivers of any security interest that the third party has in theGoods, to ensure that at all times the Company has a first priority security interest in theGoods.
(f)The Buyer waives its rights to receive a copy of any verification statements under the Personal Property Securities Act 2004 and agrees that as between the Company and the Buyer:
(i)The Buyer will have no rights under (or by reference to) sections 114(1)(a), 116, 120(2), 121, 125, 129, 131, 133 and 134 of the Personal Property Securities Act 2004; and (ii)Where the Company has rights in addition to those in Part 9 of the Personal Property Securities Act 2004 those rights will continue to apply.
8.DELAY
(a)If any time for delivery of the Goods by the Company or completion of the Contract by the Company or any part thereof shall be stated in the Contract, such time shall be approximate only and shall notbe deemed to be the essence of the Contract.
(b)The Company shall not be liable for failure to deliver the Goods where such failure or delay isoccasioned by strike, combination of workmen, lockout, difficulty in procuring components ormaterials, shortage of labour, lack of skilled labour, delays in transit, failure or delay by the Buyer inperforming any of the Buyer’s obligations hereunder, failure or delays by suppliers or sub-contractors, failure, delay or inability to obtain necessary import or export license, foreign exchange control authorization or similar authorization, legislative government or other prohibitions or restrictions, fire, flood, hostilities, commotions, political disturbances, explosion, storm, tempest, epidemic, quarantines, accident (whether occasioned by the negligence of the company or its servants or agents or otherwise howsoever) or other causes whatsoever (whether similar in nature or not to the foregoing) beyond the Company’s reasonable control.
(c)
(i) If the manufacture, supply or delivery of the Goods is delayed by reason of or as a result of any act, omission, default or request by or on behalf of the Buyer, the Company may, without prejudice to its other rights and remedies require payment by the Buyer of such portion of the Contract Price as represents the extent to which the Company has performed the Contract or carried out the work required by the Contract up to the date such payment is required together with any additional costs incurred by the Company as a result of such delay.
(ii)In the event of such delay continuing beyond a reasonable time the Company may, withoutprejudice to its other remedies, terminate the Contract.
9.WARRANTY
(a)The Company warrants that it will replace or credit (at its option) the Buyer with the price of anyGoods in respect of which any defects in materials or workmanship are notified to the Companywithin 21 days of the date of delivery of the Goods. No claim shall be accepted under suchwarranty unless written notice of the claim is received by the Company as soon as reasonablypossible after the defect is discovered and within such period, nor shall a claim be accepted:
(i)where the defect in the Goods is notified to the Buyer by a customer of the Buyer, unless the Goods are inspected by the Buyer and a full report is submitted to the Company by the Buyerwithin 5 days after receipt by the Buyer of the complaint from its customer;
(ii)where the Goods have been sold by the Company as budget or merchandise lines or as close-outs, second quality, unwarranted products or remnants or on an “as is” basis;
(iii)where samples have been used for decoration and display and an identical match is expected;(iv)where the Goods have been altered, cut or installed and the defects in the Goods were visible or apparent prior to alteration, cutting or installation;
(v)if any attempt to repair the Goods is made by any person or persons not authorised by the Company to effect such repairs;
(vi)if the Goods have been modified without the approval of the Company;(vii)if the Goods have not been stored or maintained in a proper manner.
(b)The Company shall not be obliged to carry out any work nor be under any liability to the Buyer or inrelation to the warranty for so long as the Buyer is in default in relation to any payment or in theperformance of any obligation under the Contract.
(c)The Buyer shall indemnify the Company for all claims for breach of the warranty or for breach of anyof the guarantees under the Consumer Guarantees Act 1993 where the breach is complained of bya Consumer and the breach alleged would not have occurred had the Buyer informed the Consumer fully of the specifications.
(d)Should the Company elect to repair any defective Goods, such repair shall be effected at suchplace as the Company shall specify and the Buyer shall be responsible for shipment of the defectiveGoods to and from the place/places so specified.
(e)If the Goods or components thereof are not manufactured by the Company, then the foregoingwarranty shall not apply to such Goods, component or components as are not manufactured by theCompany and no warranties are given by the Company in respect of such Goods, component orcomponents. In the case where the manufacturer or supplier of any such Goods, component orcomponents provides any warranty, then the Company (to the extent that it is able to do so) shallmake such warranty available to the Buyer.
(f)If the Company fails to perform its warranty obligations under clause 9(a), then, subject to clause 9(b), the Company’s liability for such failure shall be limited to damages which shall be subject to the limitation in clause 9(h)(v) below.
(g)It shall be the obligation of the Buyer at the Buyer’s expense to deliver the Goods the subject of the warranty to the appointed place of delivery for inspection by the Company.
(h)The Company shall not be liable for:
(i)any claim for shortage of delivered Goods unless the Company is notified of such claim within 10 days of delivery of the Goods and the Goods are held by the Buyer at the point of deliveryfor inspection by the Company; or
(ii)any claim for undelivered Goods unless the Company is notified of non-delivery within 10 daysof the intended delivery date; or
(iii)any damage to any of the Goods which results from any improper installation or impropercleaning of the Goods; or
(iv)any damage to any of the Goods which results from use of any Goods for purposes other thanthose specified by the Company (whether in brochures, upon labels or otherwise) as theintended use of such Goods; or
(v)any colour fading of any of the Goods where such Goods are exposed to direct sunlight forperiods longer than the accepted industry standard; or
(vi)any loss of profits or consequential, indirect or special loss, damage or injury of any kindwhatsoever suffered by the Buyer arising directly or indirectly from any breach of theCompany’s obligations arising under or in connection with the Contract or from anycancellation of the Contract or from any negligence, misrepresentation or other act or omissionon the part of the Company, its servants, agents or Contractors nor shall the Company beliable for any loss, damage or injury caused to the Buyer’s servants, agents, Contractors,customers, visitors, tenants, trespassers or other persons whomsoever (whether similar to theforegoing or not) arising as aforesaid. The Buyer shall indemnify the Company against anyclaim by any of the foregoing persons in respect of any loss, damage, or injury arising asaforesaid.
(i)Notwithstanding anything contained in this clause or contained elsewhere in this Contract, theliability of the Company, whether in contract or pursuant to any cancellation of the Contract or in tortor otherwise howsoever, in respect of all claims for loss, damage or injury arising from breach ofany of the Company’s obligations arising under or in connection with the Contract, from anycancellation of the Contract from any negligence, misrepresentation or other act or omission on thepart of the Company, its servants, agents or contractors, shall not in aggregate exceed the ContractPrice.
(j)Where any person or corporation has purchased the Goods from the Buyer and complains to theBuyer, the Company, to the Commerce Commission, Consumer’s Institute, Ministry of ConsumerAffairs, or any other Government authority or department or any other consumer organisation or tothe media, the Buyer shall inform the Company in writing within 7 days of such complaint andforthwith the Buyer shall use its best endeavours to inspect the Goods and provide the Companywith a report (containing such details as the Company reasonably requires) as to the state andcondition of the Goods, whether the complaint is justified in the opinion of the Buyer, and thereasons for the conclusion reached by the Buyer.
10.RETURNS
(a)Returned goods will not be accepted by the Company for credit unless prior authorization for returnhas been given by an authorized officer of the Company who shall notify the Buyer of a permissionto return (“PTR”) number.
(b)All authorized returns shall be forwarded by the Buyer at its expense to such location as the Companymay specify for collection.
(c)All goods returned to the Company by the Buyer with the authority of the Company shall be carefully packed by the buyer at its cost and have both the consignor’s and the consignee’s address clearly shown on the packaging together with the relevant PTR number.
11.DEFAULT AND INDEMNITY
(a)If the Buyer defaults in the due payment of any moneys payable to the Company, whether underthe Contract or otherwise, or if the Buyer is in default in the performance of its obligations under theContract or any other contract between the Company and the Buyer or if the Buyer dies or permitsany judgment against it or him or herself to remain unsatisfied for 7 days or any distress, execution,or other legal process is levied upon the Buyer or if the Buyer shall commit any act of bankruptcy,enter into any composition or arrangement with its creditors or (in the case of a company) do anyact which would render it liable to be put into liquidation by the Court or if a resolution is passed oran application is filed for putting the Buyer into liquidation or a receiver is appointed in respect of allor any assets of the Buyer, the Company, without prejudice to any other right it has at law or inequity, may, at its option, suspend or terminate the Contract, and payment for the Goods deliveredand work performed up to the date of such suspension or termination and any other moneyspayable hereunder shall immediately become due and payable.
(b)In any of the events in clause 11(a), the Company also reserves the right, as the agent of theBuyer, to enter upon the premises where the Goods are situated and take possession of andremove the same without being responsible for any damage caused and the Company may resellany of or all of the Goods and apply the proceeds in or towards payment of the Contract Price andall other monies owing to the Company by the Buyer.
(c)All costs and expenses of and incurred by the Company as a result of any such action as outlined inclause 11(b) together with transportation and storage charges shall be payable by the Buyer upondemand. (d)Any suspension of the Contract by the Company shall not prevent the Company terminating the Contract during the period of suspension.
12.PATENTS AND COPYRIGHT
(a)If any Goods are to be supplied to the Buyer’s design, the Buyer hereby warrants that themanufacture and supply of such Goods by the Company will not infringe any patent, copyright,registered design or other rights of any person and the Buyer agrees to indemnify the Companyagainst any liability incurred by the Company including any costs and expenses in the event of anyclaim being made that the manufacture or supply of such Goods by the Company infringes anypatent, copyright, registered design or other rights of any person.
13.DIMENSIONS AND SPECIFICATIONS
(a)Dimensions and specifications contained or referred to in the Contract or in any catalogues or otherpublications maintained or issued by the Company are estimates only. Unless otherwise expresslyagreed in writing, it is not a condition of the Contract that the Goods will correspond precisely withsuch dimensions, specifications and customary tolerances. In the absence of customarytolerances, reasonable tolerances shall be allowed.
14.REPRESENTATIONS AND SPECIFICATIONS
(a)The Company shall supply written Specifications for each product.The contents of the Specifications shall constitute the representations of the Company regarding the product.
(b)The Buyer shall communicate only those representations to the Consumer which are contained inthe Specifications, except insofar as clause 14(d) applies.
(c)The Buyer shall indemnify the Company for all claims under the Consumer Guarantees Act 1993 orotherwise arising from representations made by the Buyer which are not in accordance with theSpecifications. (d)The Buyer shall communicate all representations specific to a particular product such as limitationsas to quality, price, availability, nature, defects and any other specific representations or limitationwhatsoever which are made by the Company in writing whether as part of the Specifications or not.
(e)Oral representations of any kind made by employees, agents, or any other representatives are notrepresentations of the Company unless endorsed in writing by the Company in the form of anaddendum or amendment to the Specifications, and the terms of any such written endorsement by the Company shall not be altered by any previous or subsequent oral representation.
(f)The Buyer shall communicate to the Consumer all limitations, qualifications and other writtenrepresentations of the Company with regard to the availability of repairs, extra materials suppliedand any other similar matter.
15.COLOUR
(a)Should the Company be obliged to match any shade or colour, a light and dark tolerance shall beallowed to such extent as shall be agreed upon by the Company and the Buyer, and in the absenceof any agreement, a reasonable tolerance shall be allowed.
16.DESCRIPTION, SAMPLE OR DEMONSTRATIONMODEL
(a)Where the Goods are supplied to the Buyer by description made by the Consumer, the Buyeracknowledges that it is the Buyer’s responsibility to ensure that the Goods correspond to thedescription, and that when the Buyer acknowledges receipt of the Goods, the Company isdischarged from all liability to the Buyer regarding the description whatsoever.
(b)Where the Goods are supplied by the Buyer to a Consumer by reference to sample ordemonstration model, the Buyer shall advise the Consumer of the difficulty of matching any qualityof the sample with the latter supplied Goods.
17.MATERIALS AND SOURCES OF MATERIALS AND/OR GOODS
(a)Reviews by the Company of materials, sources of materials, and/or goods may result in variationsof the materials and the source of materials and/or goods. The Buyer shall not have the right toreceive details or information concerning the reviews or the implementation of those reviews or both and agrees to accept the Goods subject to the varied materials and/or source of materials and/orgoods.
18.CONSUMER GUARANTEES ACT 1993
(a)The provisions of the Consumer Guarantees Act 1993 shall not apply when the Buyer acquires theGoods or holds himself, herself or itself out as acquiring the Goods under the Contract for thepurposes of a business.
(b)The Buyer shall contract out of the Consumer Guarantees Act 1993 on behalf of the Companywhen the Consumer acquires the Goods or holds himself, herself or itself out as acquiring theGoods from the Buyer for the purpose of a business.
(c)The Buyer shall indemnify the Company in all cases where clause 18(b) is not complied with by the Buyer.
19.CONTRACT
(a)The items mentioned in the quotation (where the Contract arises from a quotation by the Company)or the items contained in the Company’s confirmation of order (where the Contract arises from anorder by the Buyer) together with these terms and conditions shall be the conditions of the Contract.All other conditions, warranties, descriptions, representations, conditions as to fitness or suitabilityfor any purpose, tolerance to any condition, merchantability or otherwise (whether of a like nature ornot) and whether expressly implied by law, trade custom or otherwise are expressly excluded.
(b)In the case of any conflict between an order submitted by the Buyer and the Company’sconfirmation of order and these terms and conditions, the Company’s confirmation of order andthese terms and conditions shall prevail.
(c)No agent or representative of the Company is authorized to make any representations, warranties,conditions or agreement not expressly confirmed by the Company in writing and the Company is notin any way bound by any such unauthorized statement nor can any such statements be taken toform a contract or part of a contract with the Company collateral to the Contract.
20.WAIVER
(a)All the original rights, powers, exemptions and remedies of the Company shall remain in full forcenotwithstanding any neglect, forbearance or delay in the enforcement thereof. The Company shallnot be deemed to have waived any condition unless such waiver shall be in writing under signatureof the Company or an authorized officer thereof and any such waiver, unless the contrary shall beexpressly stated, shall apply to and operate only in a particular transaction, dealing or matter.
21.NO ASSIGNMENT
(a)The Buyer may not assign all or any of its rights or obligations under the Contract without priorwritten consent of the Company.
22.LAW AND JURISDICTION
(a)The Contract shall in all respects be deemed to be a Contract made in New Zealand and theconstruction, validity and performance of the Contract shall be governed by New Zealand law. Theexclusive jurisdiction of the New Zealand courts to entertain all claims and actions arising out of theContract is accepted and acknowledged by the Buyer provided however that the Company shall beentitled to commence any action arising out of or in respect of the Contract in any other court.
23.NOTICES
(a)Notices to either the Company or the Buyer shall be in writing and may be served personally bybeing delivered to the party’s known address or if a company to the registered office of the party, orby being posted by pre-paid letter addressed to the party at that address. In the case of service bypost, notice shall be deemed served on the business day following postage.