Terms and Conditions of Trade
Electroless Coating Systems Limited
Terms and Conditions of Trade
Definitions
1.1 “Seller”shall mean Electroless Coating Systems Limited its successors and assigns or any person acting on behalf of and with the authority of Electroless Coating Systems Limited.
1.2 “Buyer” shall mean the Buyer or any person acting on behalf of or with the authority of the Buyer.
1.3 “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Buyer on a principal debtor basis.
1.4 “Goods” shall mean any coating applied by the Seller to any metallic substrates supplied by the Buyer to the Seller for the purpose of applying a coating by the Seller(and where the context so permits shall include any supply of Goods as defined above). Coating is defined as either an electroless nickel deposit, black oxide film or chromate conversion coating.
1.5 “Services” shall mean all services supplied by the Seller to the Buyer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the cost of the Goods agreed between the Seller and the Buyer subject to clause 4 of this contract.
Acceptance
2.1 Any instructions received by the Seller from the Buyer for the supply of Goods and/or the Buyer’s acceptance of Goods supplied by the Seller shall constitute acceptance of the terms and conditions contained herein
2.2 Where more than one Buyer entered into this agreement, the Buyers shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Buyer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Seller.
2.4 None of the Seller’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Seller in writing nor is the Seller bound by any such unauthorised statements.
2.5 The Buyer undertakes to give the Seller not less than fourteen (14) days prior written notice of any proposed change in the Buyers name and/or any other change in the Buyer’s details (including but not limited to, changes in the Buyer’s address, email address, facsimile number, or business practice).
Goods
3.1 The goods are as described on the invoices, quotation, work authorisation or any other work commencement forms as provided by the Seller to the Buyer.
Price and Payment
4.1 At the Sellers sole discretion;
(a)The price shall be as indicated on invoices provided by the Seller to the Buyer in respect of Goods supplied; or
(b) The Price shall be as indicated on the specific contract or tender provided by Seller to the Buyer in respect of Goods supplied; or
(c) The Price of the Goods shall be the Seller’s quoted Price which shall be binding upon the Seller provided that the Buyer shall accept in writing the Seller’s quotation within thirty (30) days.
4.2 At the Seller’s sole discretion a deposit may be required. The deposit amount or percentage of the Price will be stipulated at the time of the order of the Goods and shall become immediately due and payable.
4.3 Time for payment for the Goods shall be of the essence and will be stated on the invoice, quotation, or any other order forms. If no time is stated then payment shall be on delivery of the Goods.
4.4 At the Seller’s sole discretion, payment for approved Buyers shall be due twenty (20) days following the end of the month in which a statement is posted or emailed to the Buyer’s address or address for notices.
4.5 Payment will be made by cash on delivery, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed by the Buyer and the Seller.
4.6 The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by the seller.
Delivery of Goods/Services
5.1 Delivery of the Goods shall be made to the Buyer’s address. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery, or delivery of the Goods shall be made to the Buyer at the Seller’s address.
5.2 The costs of carriage and any insurance which the Buyer reasonably directs the Seller to incur shall be reimbursed by the Buyer (without any set-off or other withholding whatever) and shall be due on the date for payment of the Price. The carrier shall be deemed to be by the Buyer’s agent.
5.3 The Seller may deliver the Goods by separate instalments (in accordance with the agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions in this contract of sale.
5.4 Delivery of the Goods to a third party nominated by the Buyer is deemed to be delivery to the Buyer for the purposes of this agreement.
5.5 The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
5.6 The Seller shall not be liable for for any loss or damage whatever due to failure by the Seller to deliver the goods (or any of them) promptly at all.
Risk
6.1 If the Seller retains property in the Goods nonetheless, all risk for the Goods passes to the Buyer on delivery.
6.2 If any of the Goods are damaged or destroyed prior to property in them passing to the Buyer, the Seller is entitled, without prejudice to any of its other rights or remedies under these Terms and Conditions of Trade (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable for the Goods. This applies whether or not the Price has become payable under the Contract. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquires.
Personal Property Securities Act 1999 (“PPSA”)
7.1 Upon assenting to these terms and conditions in writing the Buyer acknowledges and agrees that:
(a) These terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) A security interest is taken in all Goods previously supplied by the Seller to the Buyer (if any) and all Goods that will be supplied in the future by the Seller to the Buyer.
7.2 The Buyer undertakes to:
(a)Sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Seller may reasonably require to register a financing statement or financing charge statement on the Personal Property Securities Register;
(b) Indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement or financing change statement on the Personal Properties Security Register or releasing any Goods charged thereby;
(c ) Not register a financing change statement or a change demand without prior written consent of the Seller; and
(d) Immediately advise the Seller of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
7.3 The Seller and the Buyer agree that nothing in sections 114(1) (a), 133 and 134 of the PPSA shall apply to these terms and conditions.
7.4 The Buyer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
7.5 Unless otherwise agreed to in writing by the Seller, the Buyer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
7.6 The Buyer shall unconditionally ratify any actions taken by the Seller under clauses 7.1 to 7.5.
Buyer’s disclaimer
8.1 The Buyer hereby disclaims any right to rescind, or cancel the contract to sue for damages or claim restitution arising out of any misrepresentation made to the Buyer by the Seller and the Buyer acknowledges that the Goods are bought relying solely upon the Buyer’s skill and judgement.
Defects/Returns
9.1 The Buyer shall inspect the Goods on delivery and shall within seven (7) days of delivery notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Buyer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following the delivery if the Buyer believes the Goods are defective in any way. If the Buyer shall fail to comply with these provisions, the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free of any defect or damage.
9.2 For Goods, which the Seller has agreed in writing that the Buyer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods or repairing the Goods provided that:
(a) The Buyer has complied with the provisions of the clause 9.1
(b) The Goods are returned via the Seller specified carrier at the Buyer’s cost within fourteen (14) days of the delivery date;
(c) The Seller will not be liable for Goods which have not been stored or not used in a proper manner;
(d) The Goods are returned in the condition which they were delivered and with all packaging material.
Warranty
10.1 Subject to the conditions of warranty set out in Clause 10.2 the Seller warrants that if any defect in workmanship manufactured by the seller becomes apparent and is reported to the Seller within twelve (12) months of the date of delivery then the Seller will(at the Seller’s sole discretion) replace the workmanship. Replace the Workmanship means to remove the coating or film and replate or reprocess the part(s) to the same or higher specification. The Seller will not be responsible for any un-installation, freight, reinstallation of the part(s) or costs associated with the Buyer’s production downtime or any other costs whatsoever if it is deemed necessary to replace the workmanship.
10.2 The conditions applicable to the warranty given by Clause 9.1 are:
(a)The warranty shall not cover any defect or damage which may be caused or partly caused by or arise though:
i) Failure on the part of the Buyer to properly maintain any Goods; or
ii) Failure on the part of the Buyer to follow any instructions or guidelines provided by the seller; or
iii) Any use of any Goods otherwise than for any application specified on a quote or order form; or
iv) The continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
v) Fair wear and tear, any accident or act of God.
(b) The warranty shall cease and the Seller shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Seller’s consent.
(c) In respect of all claims the Seller shall not be liable to compensate the Buyer for any delay in either replacing or repairing the workmanship/Goods or in properly assessing the Buyer’s claim.
10.3 The Warranty stated above is and has been the standard warranty provided since the inception of Electroless Coating Systems Limited in October 1995.
Intellectual Property
11.1 Where the Seller has designed Goods for the Buyer, then the copyright in those designs shall remain vested in the Seller, and shall only be used by the Buyer in the Seller’s discretion.
11.2 The Buyer warrants that all designs or instructions to the Seller will not cause the Seller to infringe any patent, registered design or trademark in the execution of the Buyer’s order.
Default & Consequences Of Default
12.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and shall accrue at such a rate after as well as before any judgement.
12.2 If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify the Seller from and against all the Seller’s costs and disbursements including on a solicitor and own client basis and in addition all of the Seller’s nominees costs of collection.
12.3 Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Buyer and any other of its obligations under the terms and conditions. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller exercised its rights under this clause.
12.4 If any account remains unpaid at the end of the second month after supply of the Goods or Services an immediate amount of the greater of $20.00 or 10.00% of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable.
12.5 In the event that:
(a) Any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable to meet its payments as they fall due; or
(b) The Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or on any asset of the Buyer;
then without prejudice to the Seller’s remedies at law
(i) The Seller shall be entitled to cancel all or any part of any order of the Buyer which remains unperformed in addition to and without prejudice to any other remedies; and
(ii) All amounts owing to the Seller shall, whether or not due for payment, immediately become payable.
Title
13.1 It is the intention of the Seller and agreed by the Buyer that ownership of the Goods shall not pass until:
(a)The Buyer has paid all amounts owing for the particular Goods, and
(b)The Buyer has met all other obligations due by the Buyer to the Seller in respect of all contracts between the Seller and the Buyer.
13.2 Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Seller’s ownership or rights in respect of the Goods shall continue.
13.3 It is further agreed that:
(a) Until such time as ownership of the Goods shall pass from the Seller to the Buyer the Seller may give notice in writing to the Buyer to return the Goods or any of them to the Seller. Upon such notice the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease; and
(b) If the Buyer fails to return the Goods to the Seller then the Seller or the Seller’s agent may enter upon and into land and premises owned, occupied or used by the Buyer, or any premises as the invitee of the Buyer, where the goods are situated and take possession of the Goods.
Security and Charge
14.1 Despite anything to the contrary contained herein or any other rights which the Seller may have howsoever:
(a) Where the Buyer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Buyer and/or the Guarantor agree to mortgage asset to the Seller or the Seller’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Buyer and/or the Guarantor acknowledge and agree that the Seller (Or the Seller’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) Should the Seller elect to proceed in any manner in accordance with this clause and/or it’s sub-clauses, the Buyer and Guarantor shall indemnify the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Buyer and/or Guarantor (if any) agree to irrevocably nominate constitute and appoint the Seller or the Seller’s nominee as the Buyer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 14.1.
Cancellation
15.1 The Seller may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.2 In the event that the Buyer cancels delivery of Goods the Buyer shall be liable for any loss incurred by the Seller (including but not limited to, any loss of profits) up to the time of cancellation.
Privacy Act 1988
16.1
The Buyer and the Guarantor/s (if separate to the Buyer) authorises the Seller to:
(a) collect, retain and use any information about the Buyer, for the purpose of assessing the Buyer’s creditworthiness or marketing products and services to the Buyer: and
(b) to disclose information about the Buyer, whether collected by the Seller from the Buyer directly or obtained by the Seller from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Buyer.
16.2 Where the Buyer is an individual the authorities under (clause 18.1) are authorities or consents for the purposes of the Privacy Act 1993.
16.3 The Buyer shall have the right to request the Seller for a copy of the information about the Buyer retained by the Seller and the right to request the Seller to correct any incorrect information about the Buyer held by the Seller.
Unpaid Seller’s Rights
17.1 Where the Buyer has left any item with Seller for repair, modification, exchange or for the Seller to perform any other Service in relation to the item and Seller has not received or been tendered for the whole price, or the payment has been dishonoured, the Seller shall have:
(a) a lien on the item:
(b) the right to retain the item for the Price while the Seller is in possession of the item:
(c) a right to sell the item.
17.2 The lien of the Seller shall continue despite the commencement of proceedings, or judgement for the Price having been obtained.
Contractual Remedies Act 1979
18.1 The provisions of the Contractual Remedies Act 1979 shall apply to the contract as if section 15(d) were omitted from the Contractual Remedies Act 1979.
Consumer Guarantees Act 1993
19.1 This agreement is subject to the provisions of the Consumer Guarantees Act 1993 in all cases except where the Buyer is contracting within the terms of trade/business (which cases are specifically excluded).
General
20.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
20.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.
20.3 The Seller shall be under no liability whatsoever to the Buyer for any indirect loss and/or expense (including loss of profit) suffered by the Buyer arising out of breach by the Seller of these terms and conditions.
20.4 In the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Goods.
20.5 The Buyer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Buyer by the Seller.
20.6 The Seller may license or sub-contract all or any part of its rights and obligations without the Buyer’s consent.
20.7 The Seller reserves the right to review these terms and conditions at any time and from time to time. If following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the Seller notifies the Buyer of such change.
20.8 Neither party shall be liable for any direct default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
March 17, 2015