1.1 For the purpose of these conditions of sale, the "Customer" means the customer named in the attached document, "Goods" means all the particle board, medium density fibreboard, hardboard, softboard, melamine and other panels and laminates, solid surfaces, mouldings, doors, jambs and associated fittings, adhesives, abrasives, fittings, fastenings, hardware, machinery, plumbing, coatings, steel, lighting, timber and joinery, wood finishes, flooring, appliances, and other goods supplied by the Company and, in respect of each order of Goods from the Customer accepted by the Company, means the Goods described in the invoice issued by the Company in respect of the relevant order, and the "Company" means Fletcher Building Products Limited, trading through its division Laminex New Zealand, and its successors and assigns.
1.2 Any Goods supplied by the Company to the Customer will be supplied on these conditions only. If the Customer orders Goods, the Customer will be deemed to have accepted these conditions. The only circumstance where any variation to these conditions will apply is where a manager of the Company has expressly agreed in writing to that variation.
2. ORDER CANCELLATION
2.1 Cancellation of an order for Goods manufactured by the Company may only be accepted by the Company if:
(a) the Company has received written notice of cancellation prior to the commencement of manufacture of the Goods; or
(b) the Goods form part of the Company’s stock in trade and are not custom made.
2.2 Cancellation of an order for Goods not manufactured by the Company may only be accepted by the Company if:
(a) the price of the Goods has increased by more than 5% between the date of the order and the date of delivery of the Goods; and
(b) the Company has received written notice of cancellation before delivery of the Goods and within seven days of the increase in price.
3.1 The price of the Goods will be the price contained in the Company’s price list current on the date the Goods are delivered to the Customer, unless otherwise expressly agreed in writing by the Company.
3.2 The price of the Goods excludes any amount payable in respect of goods and services tax ("GST") (if any), which will be paid by the Customer in addition to the price.
4.1 Unless otherwise agreed, the price of the Goods, plus GST (if any) and any other amounts payable by the Customer in respect of the Goods, will be paid in full no later than the 20th of the month following the month in which such Goods are invoiced (as evidenced by the date of the invoice for such Goods). However, the Company reserves the right to require payment for any Goods in cash before such Goods are delivered.
4.2 Subject to clause 4.1 and 4.3, payment must be by cheque, electronic funds transfer, cash or such other means as may be agreed by the Company before the payment is made.
4.3 The Company may, at any time, require the Customer to pay for Goods by letter of credit, bank cheque or post dated cheque or secure payment for Goods by way of a general security deed, an assignment of debt, an instrument by way of security, a mortgage or agreement to a mortgage, or in any other manner whatsoever.
4.4 The Customer may not deduct or withhold any amount (whether by way of set-off, counterclaim or otherwise) from any money owing to the Company.
4.5 Any payment received by the Company (or any amount deducted or withheld by the Company under clause 4.6) may be applied in reduction of any amount owing to the Company, as determined by the Company.
4.6 The Company may deduct or withhold any amount (whether by way of set-off, counterclaim or otherwise) from any money owing by the Company to the Customer on any account whatsoever.
4.7 If full payment for the Goods is not made by the due date for payment, the Customer will pay, at the Company’s discretion (and without prejudice to any other rights or remedies the Company may have), on demand, default interest on any amount outstanding, at a rate equal to 3% above the current base lending rate from time to time set by the Company’s bankers (plus GST, if any), from the date when payment is due until the date when payment is actually made and all expenses and costs (including legal costs as between solicitor and client) incurred by the Company in connection with the Company recovering or attempting to recover any overdue amount.
5.1 Unless otherwise agreed, the Company will arrange delivery of the Goods. Delivery may be by instalments.
5.2 Unless otherwise agreed by the Company prior to delivery, the price of the Goods excludes the costs of delivery of the Goods, which will be paid by the Customer in addition to the price.
5.3 If the price of Goods includes the costs of delivery, the following conditions apply, unless otherwise agreed by the Company prior to delivery:
(a) in respect of Goods delivered to a delivery point in New Zealand, the price of the Goods includes the costs of delivery of the Goods by the usual methods of transportation used by the Company, between the hours of 7.30am and 5pm Monday to Friday (excluding statutory holidays). The Company may, if the Customer requests, arrange Goods to be delivered by other means or at other times but will be entitled to charge the Customer for any additional costs the Company may incur;
(b) in respect of Goods delivered to a delivery point outside New Zealand, the price of the Goods includes the costs of delivery of the Goods by the usual route and methods of transportation used by the Company. The Company may, if the Customer requests, arrange Goods to be delivered by other means but will be entitled to charge the Customer for any additional costs the Company may incur.
5.4 The Company will endeavour to have Goods delivered on the agreed delivery dates but will not be held liable for late delivery. Late delivery does not entitle the Customer to cancel any order or part order.
5.5 Delivery will be deemed to have been made when Goods arrive at the delivery point agreed with the Customer or if the Customer is to arrange delivery of the Goods, when the Goods are available for collection by the Customer. The Customer or its authorised representative must sign the Company’s copy of the delivery docket or packing slip before the Goods are unloaded or collected.
(a) All claims for errors in delivery where it is the Company's error and is valid and notified within 14 days from invoice date. A full credit will be raised at the cost of the Company. If outside the time frame, charges will apply. Refer clause 7.2.
(b) All other claims for damaged and missing in transit/POD endorsements if valid must be made to the Company within two days of delivery in respect of goods delivered by courier and within seven days of delivery in respect of Goods delivered by any other means or Goods collected by the Customer, in accordance with the procedures advised by the Company from time to time. If valid, claims made within the time frames a full credit will be raised at the cost of the Company. If outside of the time frames, charges will apply. Refer clause 7.2.
5.7 Where the Company arranges delivery of the Goods, the Customer will ensure, at its own cost, that all agreed delivery points have the mechanical means and labour to unload the Goods promptly and have suitable access and area for unloading.
5.8 If the Customer fails or refuses to take delivery of any Goods at an agreed delivery time, the Company may (without limiting any other rights or remedies the Company may have) charge the Customer for any expenses or additional costs incurred by the Company as a result of delay.
6. OWNERSHIP AND RISK
6.1 Ownership of any Goods supplied by the Company will not pass to the Customer until all amounts owing by the Customer to the Company in respect of those Goods and all other Goods supplied by the Company have been received by the Company.
6.2 Until ownership passes to the Customer, the Goods supplied are held by the Customer for the Company as bailee and, if required, the Customer will store the Goods so that it is clear they belong to the Company.
6.3 If the Customer wishes to resell any Goods before ownership passes, the Customer may do so only by way of bona fide sale in the ordinary course of business and as the agent of the Company, but the Customer shall not represent to any other person that the Customer is acting for, or has any authority to bind, the Company. The Customer shall account to the Company for the proceeds of any sale of the Goods.
6.4 Risk in the Goods will pass to the Customer on delivery of the Goods.
7.1 Subject to clauses 5.6, 10.4 and 10.5, Goods may only be returned to the Company within 14 days of the date of invoice for those Goods if:
(a) the Goods form part of the Company’s stock in trade and are not custom made; and
(b) the condition of the Goods has not deteriorated, in the Company's opinion, and subject to the following:
(i) the Customer pays for the cost of returning the Goods; and
(ii) the Customer provides evidence of purchase from the Company to the Company’s satisfaction; and
(iii) the Customer has sought prior approval from the Company for surplus to requirement Goods returns.
7.2 Where Goods are returned in accordance with clause 7.1, the Company will give a credit to the Customer of between 60% and 90% of the price of the Goods (at the date the Goods were delivered to the Customer).
7.3 Containers (which includes but is not limited to stillages, formers and pallets) in or on which Goods are delivered and for which a deposit charge is made, remain our property. Upon the containers' return in good order, the deposit will be returned to you. We reserve the right to deduct moneys from your deposit to compensate us for any damage to the container(s).
8. PERSONAL PROPERTY SECURITIES ACT
8.1 The Customer acknowledges that these conditions constitute a security agreement for the purposes of section 36 of the Personal Property Securities Act 1999 ("PPSA") and that a security interest exists in all Goods (and their proceeds) previously supplied by the Company to the Customer (if any) and in all future Goods (and their proceeds).
8.2 The Customer is to execute documents and do such further acts as may be required by the Company to register the security interest granted to the Company under these conditions under the PPSA.
8.3 Until ownership of the Goods passes, the Customer waives its right under the PPSA:
(a) to receive a copy of any verification statement;
(b) to receive a copy of any financing change statement;
(c) to receive any notice that the Company intends to sell the Goods or to retain the Goods on enforcement of the security interest (as defined in PPSA) granted to the Company under these conditions;
(d) to object to a Company proposal to retain the Goods in satisfaction of any obligation owed by the Customer to the Company;
(e) to receive a statement of account on sale of the Goods;
(f) to redeem the Goods; and
(g) where any Goods become an accession, as defined in the PPSA, to not have any Goods damaged when the Company removes the accession, to receive notice of removal of the accession and to apply to the court for an order concerning the removal of an accession.
8.4 Until ownership of the Goods passes, the Customer must not give to the Company a written demand or allow any other person to give the Company a written demand requiring the Company to register a financing change statement under the PPSA or enter into or allow any other person to enter into the register of personal property securities a financing change statement under the PPSA.
8.5 The Customer 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 PPSA) granted to the Company under these conditions.
9. CHANGE OF TRADING ENTITY AND CUSTOMER DETAILS
The Customer must provide the Company with at least 14 days prior written notice of any change of name, address, contact details or legal status. Unless the Company has received and accepted an application for a trade credit account in the name of a company, the Customer named overleaf (in the case of a Customer who is not a company) will be liable for the Goods notwithstanding that the order for the Goods was made by a company.
10.1 The Company warrants that Goods manufactured by the Company will be free from defects in materials or workmanship and will substantially conform with the Company’s specifications. BUT this warranty will not apply:
(a) unless a written claim (other than a claim covered by clause 5.6, which will be dealt with under clause 5.6) is received by the Company within six months of delivery of the Goods to which the claim relates;
(b) unless the Company is given the opportunity to inspect the Goods immediately after the defect is discovered;
(c) if the Goods have been repaired by any person not authorised by the Company to do such repairs;
(d) if the Goods are used for any purpose other than the purpose for which they are intended;
(e) if the Goods have been modified or incorrectly stored, handled, installed or maintained;
(f) if the instructions as to use, installation or maintenance of the Goods as contained in current product data produced by the Company have not been adhered to (it being the responsibility of the Customer to obtain that information);
(g) to any Goods which have been sold by the Company as seconds, downgrades or otherwise outside the standard specifications for those Goods.
10.2 If the Customer is a consumer under the Consumer Guarantees Act 1993 (the "Act"):
(a) and is acquiring or holding itself out as acquiring the Goods for a business purpose, the Act will not apply; and
(b) the Company does not undertake that facilities for repair and parts for the Goods will be available.
10.3 If the Customer is acquiring the Goods for the purpose of re-supplying them (in the form in which they were delivered or otherwise) in trade and that re-supply is governed by New Zealand law, the Customer will:
(a) include in its conditions of sale a clause to the effect that the Act will not apply where a customer of the Customer acquires or holds itself out as acquiring the Goods for a business purpose;
(b) notify its customers of the effect of clause 10.3(a);
(c) take reasonable action to notify its customers at or before the time the Goods are supplied to such customers that the Company does not undertake that repair facilities and parts will be available for the Goods; and
(d) indemnify the Company against all losses, costs, damages or liabilities which the Company may incur or be liable to pay arising out of the Customer’s failure to take the action required under this clause 10.3.
10.4 Subject to clause 10.5 and to any express warranties given by the Company to the Customer in writing:
(a) all warranties (other than the warranty contained in clause 10.1), descriptions, representations, terms and conditions (other than these conditions of sale) whether implied by law, trade, custom or otherwise are, and all other liability of the Company, whether in tort (including negligence), contract or otherwise is, expressly excluded to the fullest extent permitted by law;
(b) insofar as the Company may be liable notwithstanding clause 10.4(a), the total liability of the Company for any loss, damage or injury arising directly or indirectly from any defect in or non-compliance of any Goods or any other breach of the Company’s obligations to the Customer (including, without limitation, any breach of the warranty in clause 10.1) is, to the extent permitted by law, limited to:
(i) the price of the Goods complained of; or
(ii) the cost of repairing or replacing the defective Goods; or
(iii) the actual loss or damage suffered by the Customer,
whichever is the lesser;
(c) except where statute expressly requires otherwise, the Company will not be liable in any event for any loss of profits or any consequential, indirect or special damage, loss or injury of any kind suffered by the Customer or any other person;
(d) while the Company will make every effort to ensure the accuracy of any advice, recommendation, information, assistance or service provided by the Company in relation to the Goods or their use or application, to the extent permitted by law, the Company does not accept any liability or responsibility in respect of such advice.
10.5 Subject to clause 10.2, nothing in these conditions will affect any rights a consumer (as defined in the Act) may have under the Act.
11. CONTAINERS AND PACKAGING
11.1 When a returnable container, case or crate is used for the delivery of Goods, the Customer will pay for the cost of the container case, or crate. The cost will be noted on the relevant invoice, and will be credited when the container, case or crate is returned (at the Customer’s cost) to the Company (at the premises from which the Goods were despatched or collected). All containers, cases or crates used for the delivery of the Goods will remain the property of the Company.
11.2 When a non-returnable container, case or crate is used for the delivery of Goods, the Customer will be responsible for disposing, at its own cost, of all materials used in the packaging or delivery of Goods.
12. TRADE MARKS
The Customer will use the Company’s trade marks in accordance with the terms and conditions advised by the Company from time to time.
13. OTHER RIGHTS OF THE COMPANY
(a) any amount payable by the Customer to the Company is overdue, or the Customer fails to meet any other obligation to the Company (whether in relation to the sale of Goods or otherwise), or in the Company’s opinion the Customer is likely to be unable to meet its payment or other obligations to the Company; or
(b) the Customer becomes bankrupt, insolvent, has a receiver appointed in respect of all or some of its assets, makes or is likely to make an arrangement with its creditors, has a liquidator (provisional or otherwise) appointed, is placed under statutory or official management or any equivalent or analogous event occurs under the law of any jurisdiction in which the Customer is incorporated, domiciled, resident or carries on business; or
(c) the ownership or effective control of the Customer is transferred or the nature of the Customer’s business is materially altered; then:
(i) the Company may cancel all or any orders with the Customer which remain, or any part of any order with the Customer which remains, unperformed, in addition to and without prejudice to its other rights or remedies; and
(ii) all amounts owing to the Company whether due for payment or not, will immediately become due and payable; and
(iii) the Company may remove any Goods in the Customer’s possession or control (including any Goods that have become an accession under the PPSA) and dispose of them or retain them for its own benefit and for that purpose the Company may, subject to the Credit (Repossession) Act 1997, 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.
14. GOVERNING LAW
14.1 These conditions will be governed by New Zealand law and the Customer agrees to submit to the exclusive jurisdiction of the New Zealand courts.
14.2 The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
15.1 If at any time the Company does not enforce any of these conditions or grants the Customer time or other indulgence, the Company will not be construed as having waived that condition or its rights to later enforce that or any other condition.
15.2 Where any provision of these conditions is rendered void, unenforceable or otherwise ineffective by operation of law, that will not affect the enforceability or effectiveness of any other provision of these conditions.