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Terms of Trade

 

Terms of Trade 2018

    1. In these terms of sale the following words have the following meanings.

“Customer” means the person, company or other entity named in the credit application, sales agreement or quote schedule as the “Customer”.

“Goods” means goods supplied or to be supplied by Precast Products Limited on these terms of sale.

“GST” means goods and services tax.

“Services” means work performed or to be performed by Precast Products Limited on these terms of sale.

    1. All quotations for Goods and Services are subject to these terms of sale. Any Goods or Services supplied by Precast Products Limited to the Customer will be supplied on these terms of sale only. The only circumstance where any variation to these terms of sale will apply is where Precast Products Limited has expressly agreed in writing to that variation.
    2. Cancellation of or variations to an order may accepted at the sole discretion of Precast Products Limited on such terms as Precast Products Limited may specify.
  • Quotations
    •
      1. Unless otherwise stated in writing by Precast Products Limited:
    1. Quotations will be open for acceptance for 30 days from the date of the quotation;
    2. Quotations are based on costs at the date of the quotation. Any increase in costs occurring after the date of the quotation will be for the Customer’s account;
    3. Where a quotation is based on measurements or specifications supplied by the Customer any costs for additional work or Goods required as a result of any inaccuracy in those measurements or specifications will be for the Customer’s account;
    4. All drawings or details submitted by Precast Products Limited with a quotation are for quotation purposes only and will not form part of any contract; and
    5. GST is to be added to the prices quoted.
  • Price
    •
        1. The price of the Goods will be the price current at the date of order.
        2. Prices exclude any amount payable in respect of GST which will be paid by the Customer in addition to the price.
  • Payment
    •
        1. If Precast Products Limited is to install the Goods Precast Products Limited may invoice each month in respect of the Goods delivered during the preceding monthly period.
        2. Unless otherwise agreed payment is to be made in full no later than the 20th of the month following the date of the relevant invoice. However Precast Products Limited reserves the right to require payment for any Goods in cash before such Goods are delivered.
        3. The Customer may not deduct or withhold any account (whether by way of set-off, counterclaim or otherwise) from any money owing to Precast Products Limited. For the avoidance of doubt if any account is in dispute the Customer may not withhold any amount of the disputed amount.
        4. Precast Products Limited may at any time require the Customer to pay for Goods and/or Services by bank cheque or post-dated cheque or secure payment for the Goods and/or Services by way of an assignment of debt, a personal property security, a mortgage, agreement to a mortgage, or in any other manner whatsoever. Where Precast Products Limited requires the Customer to secure payment for the Goods and/or Services it may suspend performance of its obligations under these terms of sale until sufficient security is provided.
        5. If full payment for the Goods and/or Services is not made by the due date the Customer will pay at Precast Products Limited’s discretion (and without prejudice to any other remedies Precast Products Limited may have) on demand default interest at the rate of 2.5% per month 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 and any debt collection costs including commission) in connection with Precast Products Limited recovering or attempting to recover any overdue amount.
  • Delivery
    •
        1. Unless otherwise agreed Precast Products Limited will arrange delivery of the Goods. Delivery may be by instalments.
        2. Unless otherwise agreed the price of the Goods indicates the costs of delivery of the Goods by the usual methods of transportation used by Precast Products Limited between the hours of 8.30am and 5.00pm Monday to Friday excluding statutory holidays. Precast Products Limited may at the Customer’s request arrange delivery by other means or at other times but will be entitled to charge the Customer for any additional costs Precast Products Limited may incur.
        3. Precast Products Limited will endeavour to meet agreed delivery dates but will not be liable nor may the Customer cancel any order for late delivery.
        4. Delivery will be deemed to have been made when the 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.
        5. If the Customer fails or refuses to take delivery of the Goods Precast Products Limited may (without limiting any other rights it may have) charge the Customer for any expenses or additional costs incurred by Precast Products Limited as a result of the delay.
        6. The Customer is responsible for ensuring at its own cost that all agreed delivery points have unloading facilities together with labour and/or mechanical means to unload the Goods promptly and have suitable access and area for unloading.
        7. All claims for short or defective delivery or Goods damaged in transit must be made to Precast Products Limited within 24 hours of delivery.
  • Risk and Security
    •
      1. Risk of any loss, damage or deterioration of or to the Goods passes to the Customer on delivery.
      2. As security for all the Customer’s obligations under these Terms the Customer grants to Precast Products Limited a Security Interest in all the Goods that Precast Products Limited agrees to sell to the Customer under any contract together with the Proceeds of such Goods as security for payment of the Amount Owing and for the performance from time to time of the Customer’s other obligations to Precast Products Limited under the relevant contract and such security shall continue until all sums owing by the Customer to Precast Products Limited in respect of any Goods supplied have been paid in full.
      3. Precast Products Limited may allocate all moneys received from the Customer in any manner it determines including in any manner required to preserve any Purchase Money Security Interest under the PPSA in the Goods.
      4. The Customer agrees that to the extent permissible under the PPSA:
    1. Precast Products Limited excludes its obligations to the Customer under the PPSA in respect of any contract for the sale of Goods or the security under such contracts; and
    2. The Customer waives any right to receive a copy of a verification statement under the PPSA and all of its other rights against Precast Products Limited.
      1. Subject to clause 6.2 and the provisions of this clause 6 legal and equitable ownership of the Goods remains with Precast Products Limited and does not pass to the Customer until the Customer pays the Amount Owing and any other moneys owing by the Customer to Precast Products Limited from time to time (whether in relation to any contract entered into under these Terms or on any other account whatsoever).
      2. While legal or equitable ownership of the Goods remains with Precast Products Limited, Precast Products Limited retains the right to enter the premises or land where the Goods are held or stored and sever and remove them as agent for the Customer without being liable or responsible for any damage caused in doing so.
      3. In the event that the Goods become fixtures incorporated into any realty Precast Products Limited retains an equitable interest in the land.
      4. The security interest created by these Terms is not discharged nor the Customer’s obligations affected by the administration, insolvency, receivership or liquidation of the Customer.
      5. Until ownership of the Goods passes the Customer must not:
    1. Give Precast Products Limited a written demand or allow any other person to give Precast Products Limited a written demand requiring Precast Products Limited to register a financing charge statement;
    2. Lodge a charge demand or allow any other person to lodge a charge demand in each case in relation to a financing statement registered by Precast Products Limited under the PPSA;
    3. Enter into or accept or allow any other person to enter into or accept a financing charge statement in relation to a financing statement registered by or on behalf of Precast Products Limited; or
    4. Consent to or enter into any agreement which permits any supplier or other person to register a security interest in respect of the Goods (whether in an accession or otherwise) which ranks in priority to Precast Products Limited rights as first ranking security holder.
        1. 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 the PPSA) granted to Precast Products Limited under these Terms of Sale.
  • Warranties
    •
      1. If the Customer is a consumer under the New Zealand Consumer Guarantees Act (the “Act”):
    1. The Act will not apply between Precast Products Limited and the Customer in relation to the supply of Goods where the Customer is acquiring or holding itself out as acquiring the Goods for a business purpose;
    2. Precast Products Limited does not undertake that facilities for repair and parts for the Goods will be available.
      1. If the Customer is acquiring the Goods for the purposes of resupplying them in trade, the Customer will:
    1. 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;
    2. Notify its customers of the effect of clause 7.2(a);
    1. Take reasonable action to notify its customers at or before the time the Goods are supplied to such customers that Precast Products Limited does not undertake that facilities for repair and parts for the Goods will be available; and
    2. Indemnify Precast Products Limited against all losses, costs damages or liabilities which Precast Products Limited may incur or be liable to pay arising out of the Customer’s failure to take the action required under this clause 7.2.
      1. If the Customer is acquiring the Goods for the purposes of resupplying them in trade the Customer will not give to its Customers an express guarantee (as defined in the Act) from Precast Products Limited in respect of the Goods unless Precast Products Limited has approved such guarantee in writing. The Customer will indemnify Precast Products Limited against all losses, costs, damages or liabilities which Precast Products Limited may incur or be liable to pay arising out of the Customer’s failure to comply with this clause 7.3.
      2. Subject to clause 7.5:
    1. All warranties (other than any express warranty that may be given by Precast Products Limited in writing to the Customer) descriptions, representations or conditions whether implied by law or otherwise are and all other liability of Precast Products Limited whether in tort (including negligence), contract or otherwise is expressly excluded to the fullest extent permitted by law;
    2. Insofar as Precast Products Limited may be liable notwithstanding clause 7.4 (a) to the extent permitted by law, the total liability of Precast Products Limited whether in contract, tort or otherwise for any loss, damage or injury arising directly or indirectly from any defect in the Goods, any failure in respect of the Services or any breach of Precast Products Limited’s obligations to the Customer is limited to:
    1. The price of the Goods or Services complained of; or
    2. The cost of repairing or replacing the defective Goods or remedying the failure or breach; or
    3. The actual loss or damage suffered by the Customer;

    whichever is the lesser;

    1. Except where statute expressly requires otherwise Precast Products Limited is not 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;
    2. While Precast Products Limited will make every effort to ensure the accuracy of any advice, recommendation, information, assistance or other service provided by Precast Products Limited in relation to the Goods supplied by it or their use or application to the extent permitted by law Precast Products Limited does not accept any liability or responsibility in respect of such service.
        1. Subject to clause 7.1 nothing in these terms will affect any rights a person who is a consumer may have under the Act.
  • Guarantee
    •
    1. In consideration of Precast Products Limited entering into this Agreement the Guarantor(s) jointly, severally, unconditionally and irrevocably guarantee by way of continuing obligation to Precast Products Limited as primary obligor and not merely a surety the due performance by the Customer of all its obligations under this Agreement.
    2. The obligations of the Guarantor(s) under this clause will not be discharged, released or otherwise affected by any variation of this agreement or by any delay, grant of time, release, compromise, forbearance (whether partial or otherwise) or other indulgence granted by Precast Products Limited to the Customer or any person by Precast Products Limited exercising or refraining from exercising their rights against the Customer.
    3. The rights of Precast Products Limited under this clause are cumulative and not exclusive of any rights provided by law and are to remain in due force until the discharge by the Customer of all its obligations under this Agreement.
  • Returns
    •

    Subject to clause 5.7 Goods may be accepted for return at the sole discretion of Precast Products Limited on such terms as Precast Products Limited may specify.

  • Other Rights of Precast Products Limited
    •

    If:

    1. Any amount payable by the Customer to Precast Products Limited is overdue; or
    2. 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;

    then:

    1. Precast Products Limited may cancel or suspend any outstanding order with the Customer (without prejudice to Precast Products Limited’s other remedies);
    2. All amounts owing to Precast Products Limited whether due for payment or not will immediately become due and payable; and
    3. All costs incurred by Precast Products Limited as a result of the cancellation or suspension of any order will be payable by the Customer and will become immediately due and payable; and
    4. Precast Products Limited may repossess and dispose for its own benefit any Goods in the Customer’s possession or control which have been supplied by Precast Products Limited and for such purpose Precast Products Limited will be entitled to enter directly or by its agents upon any premises where it believes Goods which it has supplied may be stored without in any way being liable to any person.
  • Miscellaneous
    •
        1. The Customer will be responsible for disposing at its own cost of materials used in the packaging or delivery of the Goods.
        2. If at any time Precast Products Limited does not enforce any of these terms of sale or grants the Customer time or other indulgence Precast Products Limited will not be construed as having waived that term or its rights to later enforce that or any other term.
        3. Where any provision of these terms of sale (including without limitation any provision in clause 6 is rendered void, unenforceable or otherwise ineffective by operation of law that shall not affect the enforceability or effectiveness of any other provision of these terms of sale.
        4. The Customer is to execute documents and do such further acts as may be required by Precast Products Limited to register the security interest granted to Precast Products Limited under these terms of sale under the PPSA or for any other purpose whatsoever.
  • Advertising and Promotion
    •

    12.1 The Customer agrees that Precast Products Limited may at its discretion take photographs of goods supplied to the Customer following installation and completion.  Precast Products Limited may publish such photographs in its advertising material (including website and social media) for the purpose of promoting its products and services to the public.