Between
Belfast Timber Processing Ltd and/or Belfast Timber Kilns Ltd
And Buyer
being the Customer as named on any quotation, order or invoice
The following terms effective from 1st April 2020 govern all orders for goods and/or services placed by the Buyer and shall be incorporated into each contract entered into between the Buyer and Seller for the supply of goods and/or services. These ToT replace all earlier written or oral agreements and any terms and conditions contained in any document used by you and purporting to have contractual effect. Your acceptance of any goods or services from us indicates your continuing acceptance of these terms of trade.
Clause Index
1.0 Price and Orders
2.0 Payment
3.0 Despatch
4.0 Risk and Ownership
5.0 Guarantees
6.0 Default
7.0 Payment Validity
8.0 Force Majeure
9.0 Use of Information
10.0 Mediation
11.0 Other Agreements
12.0 Waiver
13.0 No Assignment
14.0 Personal Properties Security Act 1999
15.0 General Conditions
16.0 Words used in this Contract
1.0 PRICE and ORDERS
1.1 The price and unit rates exclude any GST or other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation or other document given by the Seller.
1.2 Orders may be cancelled only if we agree in writing to the cancellation and the order has not been partially or fully processed by us. We may charge you a cancellation or restocking fee should we agree to a cancellation.
1.3 Prices for goods and services are those stated in our price list or otherwise in force by way of our written quotation from which you place an order.
1.4 Where the goods are
– outside the Seller’s standard range of goods; or
– manufactured specifically to the Buyer’s specifications and/or other requirements,
the Buyer is required to pay the price from the time that an order is placed with the Seller and no such order may be cancelled without the prior written approval of the Seller and upon such terms as the Seller agrees.
1.5 There is no obligation on the Seller to inquire as to the authority of any person placing an order on behalf of the Buyer.
2.0 PAYMENT
2.1 Payment is due by the 20th of the month following the date of invoice or despatch (whichever is the earlier) only to those companies we have agreed in writing to extend credit to, otherwise you must pay for the goods in full, prior to despatch or collection.
2.2 The Buyer may not withhold payment or make any deductions from any Amount Owing without the Seller’s prior written consent.
2.3 Payment is deemed to have been made once funds are showing in our bank account.
3.0 DESPATCH
3.1 You are responsible for insurance and risk in the goods from the time your timber arrives at our premises for contract processing or from when completed goods are ready for despatch
If we despatch or have goods available for despatch in instalments, then any despatch or goods available for despatch is a separate contract on these terms
3.2 Where the quotation or acceptance is silent on delivery, this shall mean “Ex-works the Seller”. If the Seller subsequently arranges transportation of the goods on behalf of the buyer:
– the Seller does this as the Buyer’s agent;
– the Buyer shall indemnify the Seller for any liability incurred by the Seller in providing this service.
3.3 Any time stated for the completion of a service or goods made available for despatch, is an estimate only. We will make every effort to have goods and services completed on stock ready for despatch in a timely manner but will not be liable to you for any loss or damage arising in any way from any delay in our performance herein.
4.0 RISK AND OWNERSHIP
4.1 Risk of any loss, damage or deterioration of or to the goods passes to the Buyer on despatch of the goods
4.2 Subject to the clause directly following, ownership of the goods remains with the Seller and does not pass to the Buyer until the Buyer:
– pays the Amount Owing in full and the Seller releases the Security Interest; or
– resells the goods pursuant to the authority in these terms.
4.3 While ownership of the goods remains with the Seller:
– the Buyer must hold any goods and proceeds of all kinds in a trust in a fiduciary capacity for us as bailee, and store them and sell them in a manner to enable them to be identified and cross referenced to particular invoices.
– the Seller authorises the Buyer to use the goods in the ordinary course of its business and to sell any goods for full consideration in the ordinary course of its business. This authority is revoked from the time that:
- an Event of Default occurs; or
- the Seller notifies the Buyer in writing that this authority is revoked.
– As the Buyer’s agent for the purposes of this clause, the Seller or their agent may enter the premises where goods are stored and remove them. The Seller shall exercise reasonable care in entering using such force as is necessary and removing such goods, but shall not be liable for any damage so caused and without prejudice to any of our other rights. The Buyer may resell any goods and apply the proceeds of sale in reduction of the Amount Owing.
4.4 Property and ownership in goods or services provided to the buyer’s goods, whether in their original form or incorporated in, commingled with or attached to another product, will not pass to you but will remain with us until we receive payment in full of purchase price of the goods or services provided and all other amounts that you owe us for any reason
4.5 The Seller may apply any payments received from or on behalf of the Buyer in reduction of the Amount Owing as the Seller thinks fit (despite any direction to the contrary and whether before or after the occurrence of an Event of Default).
4.6 If the Buyer resells any goods in accordance with these terms, the proceeds of such sale shall be received and held by the Buyer (in whatever form) in trust for both the Buyer and the Seller. The Seller’s interest as beneficiary under that trust shall be that portion of the proceeds which does not exceed the Amount Owing to the Seller. The balance of the proceeds (if any) shall be the Buyer’s beneficial interest under that trust. The Seller may at any time by notice in writing require the Buyer to convert the proceeds into money, to be paid into a bank account nominated by the Seller for disbursement in accordance with these terms.
4.7 Unless otherwise notified in writing , where goods are sold to you as inventory or consignment stock or otherwise for resupply (including by way of attachment to or incorporation into manufactured or assembled goods) you are authorised to sell the goods in the normal course of your business, but you must hold any accounts receivable or other proceeds for our benefit. If you use any money proceeds to purchase replacement inventory, whether from us or a third party, you hold that replacement inventory and its proceeds as collateral for our benefit until all sums owing to us are paid.
4.8 The Seller may bring an action for the price of the goods even where ownership of the goods may not have passed to the Buyer.
5.0 GUARANTEES
5.1 Where the Consumer Guarantees Act 1993 applies to this contract:
– if the goods are acquired by the Buyer for business purposes, the Buyer agrees that the Consumer Guarantees Act 1993 does not apply; and
– if the goods are not acquired by the Buyer for business purposes, the Seller reserves the right to repair or replace any goods which fail to comply with any guarantee contained in the Consumer Guarantees Act 1993.
5.2 Where the Buyer supplies the goods in trade to a person acquiring them for business purposes, it must be a term of the Buyer’s contract with that person that the Consumer Guarantees Act 1993 does not apply in respect of the goods.
5.3 The Buyer acknowledges that the Seller does not provide any Express Guarantees (as defined in the Consumer Guarantees Act 1993) other than those expressly confirmed by the Seller in writing.
5.4 Where the Buyer supplies the goods to any other person in the course of trading, the Buyer must not give or make any undertaking, assertion or representation in relation to the goods without the Seller’s prior approval in writing.
5.5 The Buyer agrees to indemnify the Seller against any liability or cost incurred by the Seller under the Consumer Guarantees Act 1993 as a result of any breach by the Buyer of the obligations contained in these terms.
5.6 The following terms apply wherever the Consumer Guarantees Act 1993 does not apply to these terms, or where the following terms are not inconsistent with the Consumer Guarantees Act 1993:
– Defective goods or goods which do not comply with the contract shall at the Seller’s discretion be repaired or replaced or the price refunded.
– Any right which the Buyer may have to reject nonconforming or defective goods shall only be effective if the Buyer notifies the Seller in writing within 5 business days following despatch and the Seller is given the opportunity to inspect the goods.
– No goods shall be returned unless the Seller has agreed in advance.
– The Seller may at its discretion, delay the repair or replacement of, or the refund of the price of, any goods for so long as the Buyer is in default in relation to the Amount Owing.
– The Seller accepts no liability for any Claim by the Buyer or any other person, including without limitation any Claim relating 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 any agent or representative which are not expressly confirmed by the Seller in writing, and the Buyer agrees to indemnify the Seller against any such Claim.
– In any event, The Seller’s liability under any Claim shall not exceed the price of the goods or services
5.7 Nothing in these terms is intended to have the effect of contracting out of the provisions of the Consumer Guarantees Act 1993 except to the extent permitted by that Act, and these terms are to be modified to the extent necessary to give effect to that intention.
6.0 DEFAULT
6.1 If an Event of Default occurs, the Seller may suspend or terminate this contract.
6.2 If the Buyer does not pay the price by due date, the Seller may charge (as liquidated damages) default interest at a rate per annum equal to 5% above the retail lending base rate of the ANZ Bank New Zealand as varied from time to time and calculated on a daily basis on the unpaid portion of the price from due date until payment in full, plus GST.
6.3 We may also charge costs (including collection costs and legal costs on a solicitor-client basis) and suspend delivery of further goods or performance of further services until your account is paid in full.
6.4 If an Event of Default occurs, the Amount Owing shall immediately become due and payable notwithstanding that the normal due date has not arisen.
7.0 PAYMENT VALIDITY
7.1 The Buyer acknowledges that the Seller continues to supply the Buyer on condition that all payments received by the Seller from the Buyer are valid and made in the ordinary course of the Buyer’s business.
7.2 The Buyer further acknowledges that the Seller receives all payments in the ordinary course of the Buyer’s business, in good faith and in the reasonably held belief as to the validity of those payments unless and until the Buyer gives notice in writing to the Seller:
– of the Buyer’s then inability to pay its due debts; and
– that the Buyer’s intention or purpose in making any such payment is to enable the Seller to receive more towards satisfaction of its debt than it would otherwise have received or have been likely to have received in any liquidation of the Buyer, and until receipt of such notice, the Seller shall be entitled to assume that all payments received from the Buyer are made in the ordinary course of the Buyer’s business.
7.3 The Buyer acknowledges that the Seller has, by accepting each payment from the Buyer on due date, altered its position in reliance on the validity of that payment by:
– delaying revocation of the authority granted by the Seller to the Buyer pursuant to the clauses above headed Risk and Ownership;
– the continued supply by the Seller to the Buyer after the receipt of such payment, whether or not those goods are paid for by the Buyer; and
– using the payment for the Seller’s own purposes.
7.4 The Buyer acknowledges that where it makes payment to the Seller after the due date for such payment, the Seller has, by accepting such late payment, altered its position in reliance on the validity of the late payment by:
– delaying revocation of the authority granted by the Seller to the Buyer pursuant to the clauses above headed Risk and Ownership;
– foregoing its immediate right to take action against the Buyer and any guarantor in relation to the late payment;
– continuing the supply of goods to the Buyer after the receipt of payment, whether or not those goods are paid for by the Buyer; and
– using the payment for the Seller’s own purposes.
8.0 FORCE MAJEURE
8.1 Without limiting the foregoing, neither the Seller nor the Buyer shall be liable for any delay or failure in the performance of any obligation or the exercise of any right under these terms or for any loss or damage (including indirect or consequential loss or damage) if such performance or exercise is prevented or hindered in whole or in part by reason of a Force Majeure Event. Nothing contained in this clause shall excuse payment of any money due or which becomes due under these terms.
8.2 The rights and obligations of either party which are affected by a Force Majeure Event shall be suspended during the continuance of the Force Majeure Event, and either party claiming to be affected by the Force Majeure Event shall give immediate notice to the other party containing full particulars of the Force Majeure Event. The party giving notice under this clause shall take all reasonable steps to mitigate the effects of the Force Majeure Event and remove such Force Majeure Event provided that neither party shall be required to remove any such Force Majeure Event if to do so would require it to act contrary to its judgment to settle a strike or labour dispute or otherwise submit to the demands of opposing parties.
9.0 USE OF INFORMATION
9.1 The Buyer agrees that the Seller may obtain information about the Buyer from the Buyer or any other person and any credit or debt collection agencies in the course of the Seller’s business, including credit assessment, debt collecting and direct marketing activities, and the Buyer consents to any person providing the Seller with such information.
9.2 The Buyer agrees that the Seller may use any information it has about the Buyer relating to the Buyer’s credit worthiness and subject to any confidentiality agreement between the Buyer and the Seller, give that information to any other person, including any credit or debt collection agency for credit assessment and debt collection purposes. The Buyer agrees that any other information collected by the Seller about the Buyer is accessed or collected for the use of the Seller in the course of its business, including direct marketing activities.
9.3 The Buyer must notify the Seller of any change in circumstances that may affect the accuracy of the information provided by the Buyer to the Seller.
9.4 If the Buyer is an individual, (i.e.: a natural person), the Buyer has rights under the Privacy Act 1993 to access and request the correction of any personal information which the Seller holds about the Buyer.
10.0 MEDIATION
10.1 Without limiting any rights of the Buyer under the Consumer Guarantees Act, either party may require any dispute arising which has not been resolved within 14 days to be referred to mediation. The mediator shall be appointed by both parties or, where the parties cannot agree within 14 days, appointed by the chairperson or any other office holder of the New Zealand chapter of LEADR. The mediator shall conduct the mediation in accordance with the guidelines agreed between the parties or, if the parties cannot agree within 14 days following appointment of the mediator, in accordance with the guidelines set by the mediator. The costs and expenses of the mediator shall be shared by the parties equally.
11.0 OTHER AGREEMENTS
11.1 If there is any inconsistency between these terms and any order submitted by the Buyer (whether in writing, verbally or by Electronic Data Interchange or any other arrangement between the parties), these terms prevail unless otherwise agreed in writing by the parties.
12.0 WAIVER
12.1 If the Seller exercises or fails to exercise any right or remedy available to it, this shall not prejudice the Seller’s rights in exercising that or any other right or remedy.
12.2 Waiver of any provision of these terms must be specified in writing and signed by an authorised representative of the Seller.
13.0 NO ASSIGNMENT
13.1 The Buyer must not transfer or assign its rights under these terms to anyone else without the Seller’s prior consent in writing.
14.0 SECURITY INTERESTS & PERSONAL PROPERTY SECURITIES ACT 1999
14.1 If we already have a perfected security interest in the goods we supply to you together with their proceeds, that security interest is continued under these terms of trade. Otherwise, you grant us a security interest in the goods that we supply to you . Our security interest covers the goods together with proceeds of all kinds, to the value of all goods and services that we have supplied to you whether or not those goods have become accession to other goods or processed or commingled into or mixed with other goods. The goods and services subject to the security interest will be described on our invoices. Where goods that we supply to you have become mixed with other similar goods supplied by other persons, you grant us a security interest in the mixed goods to the value of the goods in the mixture that we have supplied to you but which have not yet been paid for.
14.2 Without limiting anything else in these terms, the Buyer acknowledges that:
– these terms create, in favour of the Seller, a security interest in all present and after acquired goods (being, for the avoidance of doubt, all the Buyer’s present personal property and after-acquired property except for any item of personal property which has not (or which is exclusively the proceeds of any item of personal property which has not) been supplied by the Seller to (or for the account of) the Buyer) to secure the payment by the Buyer to the Seller of the Amount Owing; and
– these terms will apply notwithstanding anything, express or implied, to the contrary contained in any purchase order (or its equivalent, whatever called) of the Buyer; and
– the Security Interest shall continue until the Seller gives the Buyer a final release.
14.3 The Buyer undertakes to:
– promptly do all things, sign any further documents and/or provide any information which the Seller may reasonably require to enable the Seller to perfect and maintain the perfection of its Security Interest (including by registration of a financing statement);
– give the Seller (addressed to the Financial Controller or equivalent) not less than 14 days’ prior written notice of any proposed change in the Buyer’s name and/or any other change in the Buyer’s details (including, but not limited to, changes in the Buyer’s address, facsimile number, trading name or business practice).
14.4 You agree that you will do all acts necessary and provide us on request all information we require to register a financing statement over the goods and their proceeds of all kinds. You waive all rights to receive a copy of any verification statement of a financing statement.
14.5 If we repossess goods under this agreement, we may retain these goods or dispose of them without notice to you or any other person, and, after deducting reasonable costs for sale, we will credit any surplus by way of setoff against sums owing to us. We shall not be obliged to furnish you with a statement of account or to pay any person other than you or your receiver or liquidator any sum in excess of the total you owe us at the time we credit your account. We will not be obliged to reinstate this agreement or resupply and repossessed inventory to you.
14.6 You authorise any person or company to provide us with any information we may require in response to an application for credit and /or other enquiries, and you authorise us to search the Personal Properties Security Register for any information about you or (if you are a company) your parent company or associated companies
15.0 GENERAL CONDITIONS
15.1 We may change these terms of trade from time to time by notice to you in writing , which we may e-mail.
15.2 If we fail to enforce any terms or to exercise any right under these terms of trade at any time, we have not waived that right.
15.3 You may not assign or subcontract any of your rights or obligations under these terms of trade.
15.4 If any provision of the terms of trade is to be held invalid or unenforceable for any reason, the remaining provisions shall remain in full force and effect and the parties shall adjust their respective rights and obligations in accordance with the spirit and intent of the parties as shown by these terms of trade.
15.5 Any agreement between us is governed by the laws of New Zealand. Any dispute is subject to the non-exclusive jurisdiction of the New Zealand courts.
16.0 WORDS USED IN THIS CONTRACT:
16.1 “Amount Owing” means, at any time, the unpaid price charged by the Seller for the goods, and any other sums which the Seller is entitled to charge under these terms or which are otherwise owing by the Buyer to the Seller.
16.2 “Buyer” means the person named on the front page of these terms or named in a quotation, buyer’s order or invoice, including that person’s successors and assigns.
16.3 “Claim” includes any claim:
– for loss of profits; or
– for any consequential, indirect or special loss, damage or injury of any kind suffered by any person arising directly or indirectly from:
– any breach of the Seller’s obligations under these terms or:
– any cancellation of these terms or any order made under these terms; or
– any negligence, misrepresentation or other act or omission by the Seller or its employees, agents or contractors; or
– for compensation, demand, remedy, liability or action.
16.4 an “Event of Default” means an event where:
– the Buyer fails to comply with these terms or any other agreement with the Seller; or
– the Buyer commits an act of bankruptcy; or
– the Buyer enters into any composition or arrangement with its creditors; or
– if the Buyer is a company:
– the Buyer does anything which would make it liable to be put into liquidation; or
– a resolution is passed or an application is made for the liquidation of the Buyer; or
– a receiver or statutory or official manager is appointed over all or any of the Buyer’s assets; or – an event occurs or information becomes known to the Seller, which in the Seller’s opinion, might materially affect the Buyer’s creditworthiness, the value of the good, the subject of the Security Interest or the Buyer’s ability or willingness to comply with its obligations under these terms or any other agreement with the Seller.
16.5 “Force Majeure Event” means the compliance by either party with an order or request of any governmental, provincial, local public or military authority or person purporting to act therefore or by reason of acts of God, fire, explosions, earthquakes, volcanic eruptions, storms, wars, hostilities, public disorders, quarantine restrictions, embargoes, strikes or other disturbances, or by reason of any other case beyond its control whether or not similar to any of the foregoing.
16.6 “Goods” means all goods supplied from time to time by the Seller to the Buyer, provided that:
– (but solely for the purpose of the application of the PPSA) where the goods supplied are inventory of the Buyer, then all references to ‘goods’ in these terms shall, in respect of those goods, be read as references to inventory for so long as they are held as inventory; and
– where the goods supplied are not inventory of the Buyer, then all references to ‘goods’ in these terms shall, in respect of those goods, mean the goods described in any one or more of the relevant order form, packing slip or invoice (or its equivalent, whatever called) prepared by the Seller and relating to those goods, on the basis that each such order form, packing slip or invoice (or its equivalent) is deemed to be assented to by the Buyer, incorporated in, and form part of, these terms,
– and (unless the context requires otherwise) includes all proceeds of such goods and any product or mass which the goods subsequently become part of.
– can also mean products or services provided, collectively or individually
16.7 “Ownership” means the property in and legal and beneficial ownership.
16.8 “Person” includes a corporation, association, firm, company, partnership or individual.
16.9 “Price” means the purchase price of the goods and any costs payable by the Buyer under this contract relating to transportation, storage and insurance.
16.10 “Security Interest” means the security interest provided for by these terms.
16.11 “Seller” means Belfast Timber Processing Ltd and/or Belfast Timber Kilns Ltd, its successors and assigns.
16.12 References to the Consumer Guarantees Act 1993, Privacy Act 1993 and the PPSA include such legislation from time to time amended, re-enacted or substituted and any statutory instruments, regulations and orders issued under such legislation.
16.13 “Services” are those processes carried out on a customers own product or timber.