1. General
1.1 “The Company” means Mangatangi River Rock Limited.
1.2 “Customer” means any purchaser of Goods from the Company.
1.3 “Goods” means any products, goods, and services supplied by the Company.
1.4 “GST” means goods and services tax, as provided in the Goods and Services Tax Act, 1985, or any similar or replacement tax, duty or impost.
1.5 “Terms of Trade” means the terms set out in this document, as amended or replaced by the Company from time to time, in which case all orders placed by the Customer with notice of any amended or replaced terms of trade shall be upon the Terms of Trade as amended or replaced.
1.6 The Terms of Trade, as read with any quotation provided by the Company and any order accepted in writing by the Company contain the whole of the terms between the parties. If there is a conflict between the Terms of Trade and anything contained in a quotation provided by the Company, the quotation applies. If there is a conflict between the Terms of Trade and anything contained in an order, the Terms of Trade apply.
1.7 No failure by the Company to exercise a right under these Terms of Trade shall be regarded as a waiver of that right.
2. Acceptance & Delivery
2.1 A contract will be made only on the written acceptance by the Company of a written order by the Customer for the supply of the Goods.
2.2 Orders accepted by the Company may not be cancelled.
2.3 The Company must make reasonable commercial efforts to meet any required delivery date, but is not liable for any loss, damage, or expense (of any kind, whether direct, indirect, or consequential) incurred by the Customer as a result of non-supply, or delay in despatch or delivery of the Goods. The Company may deliver Goods by instalments.
2.4 Unless otherwise agreed in writing, the Company’s delivery obligations are satisfied if the Company makes the Goods available for collection at the Company’s premises.
3. Price
3.1 Unless otherwise stated in writing, quotations are ex-quarry and do not include freight or insurance or GST.
3.2 Goods are sold and will be invoiced at the Company’s price prevailing at the date of despatch unless the parties have made a prior written agreement regarding price.
3.3 The price of Goods (including any price agreed under Clause 3.2) is subject to change without prior notice, and may be increased by the amount of any reasonable increase in the cost of supply of Goods that is beyond the control of the Company between the date of the contract and the delivery of Goods.
3.4 The price of Goods is subject to GST, payable by the Customer to the Company together with the price for the Goods.
4. Payment
4.1 Any deposit must be paid in cleared funds at the time the Customer’s order is submitted to the Company for acceptance. If the Customer is in default, the
Company may cancel the contract and retain the deposit (in addition to any other rights or remedies the Company may have under these Terms of Trade or at law or in equity or otherwise).
4.2 Where the Company has agreed in writing to give the Customer credit, payment for the Goods shall be made on or before the 20th of the month following the delivery of the Goods. Otherwise, payment must be made in cash or cleared funds, on or before delivery of the Goods.
4.3 Payment for Goods must be made in full, without set-off or deduction, in cash or cleared funds. Receipt of a cheque, bill of exchange, or other negotiable instrument is not payment until the Company has been paid in full in cleared funds.
5. Default
5.1 Failure by the Customer to make payment to the Company on the due date, or the appointment of a Statutory Manager, receiver, liquidator or voluntary administrator or the Customer committing an act of bankruptcy, or entering into a scheme of arrangement with its creditors is a default under these Terms of Trade, in which case the Company is entitled to immediately exercise all or any of its remedies in respect of the default.
5.2 Where the Customer is in default:
(a) The Company may suspend supply and delivery of the Goods to the Customer (without affecting the Company’s other rights).
(b) The Customer agrees to pay on demand, on a full indemnity basis, all legal and debt collection agency costs incurred by the Company in enforcing against the Customer any of the Company’s rights or remedies.
(c) The Company may charge the Customer interest at the rate of 2% per month, calculated on a daily basis, on any amount owing but unpaid. Such interest will continue to run after as well as before judgment.
(d) The Company may cancel any other order, or contract, or arrangement between the Company and the Customer, or suspend performance of such order, contract, or arrangement pending payment without being liable to the Customer for any losses (of any kind, whether direct, indirect or consequential).
(e) The Company may require immediate payment of all sums owing to the Company whether due or not.
(f) The Company may offset any amounts owed by the Company to the Customer and immediately withdraw any credit facilities.
6. Disputes
6.1 Where there is a dispute as to the interpretation or operation of the contract between the parties, the parties must refer the matter to Arbitration under the provisions of the Arbitration Act 1996.
6.2 In the event of any dispute, the Company’s liability is limited in accordance with clause 12.
7. Returns
7.1 Goods are not returnable.
7.2 Claims in respect of defective Goods must be notified to the Company in writing within five (5) days of receipt of the Goods. The Customer shall have no claim with regard to any Goods that have been processed
already, altered, or in any way utilised by the Customer.
7.3 No claim entitles the Customer to withhold payment of
any sum due to the Company under this or any other
contract that the Company may have with the Customer, nor shall such a claim give the Customer a
right to set off the amount of the claim against any payment due by the Customer to the Company.
8. Risk & Insurance
8.1 Risk in the Goods shall pass to the Customer when the Goods are delivered to the agreed place of delivery.
8.2 Unless agreed otherwise, the Goods are delivered to the Customer uninsured.
8.3 Pending payment, the Customer shall be bailee of the Company’s Goods.
9. Ownership / Recovery of Goods
9.1 Goods remain the sole and absolute property of the Company as legal and equitable owner until the Company has received payment in full of all monies (whether for the Goods or otherwise) owed by the Customer to the Company.
9.2 If the Customer is in default, the Company may (without prejudice to any other rights or remedies) enter any premises occupied by the Company to recover Goods. If the premises are those of a third party, the Company may enter and recover Goods as the Customer’s agent.
9.3 The Company may sell any Goods recovered by the Company in accordance with clause 9.2, and apply the proceeds towards the amount owed by the Customer.
10. Security Interest
10.1 The Customer grants the Company a security interest (as defined in the Personal Property Securities Act 1999 (“the PPSA”)) in all Goods supplied by the Company to the Customer (as detailed in each invoice supplied to the Customer) as well as the proceeds of such Goods, as security for all amounts owing by the Customer to the Company at any time from any cause of present or future indebtedness.
10.2 The Customer acknowledges that, to the extent the Company has rights in addition to those set out in Part 9 of the PPSA, the Company may elect to enforce those rights, irrespective of the position under the PPSA.
10.3 To the maximum extent permitted under the PPSA, the Customer agrees to waive rights as debtor. The Customer has no rights under (or by reference to) sections 114(1) (a), 116, 117(1) (c), 119, 120(2), 121, 125, 129, 131, 132, 133 and 134 of the PPSA. In particular, but without limitation, the Customer agrees to waive the Customer’s right to receive a copy of the verification statement confirming registration of a Financing Statement or a Financing Change Statement relating to any security interest the Company may have in Goods supplied to the Customer from time to time.
10.4 The Customer must immediately notify the Company of any change in the Customer’s name.
11. Warranties & Consumer Guarantees Act
11.1 Save for any warranties provided in writing by, or imposed by law on, the Company in relation to Goods supplied by the Company to the Customer, the Company makes no representation and gives no assurance, condition, or warranty of any kind to the Customer in relation to the Goods, and accepts no liability for any assurance, condition, warranty, representation, statement, or term not expressly set out in these Terms of Trade or in any quotation given by the Company to the Customer.
11.2 Without limiting 11.1, the provisions of the Consumer Guarantees Act 1993 are excluded to the maximum permissible extent.
11.3 The benefit of any warranties and conditions conferred by the Company on the Customer are personal to the Customer and are non-assignable.
12. Liability & Indemnity
12.1 The Company is not responsible for any defect, failure, or delay resulting from the provision of the Goods to, or the acts or omissions of, any third party.
12.2 Except as provided in these Terms of Trade, the Company shall not be liable for any loss or damage of any kind whatsoever, including consequential loss (including loss of profits) or property damage, whether suffered or incurred by the Customer or another person, and whether in contract, or tort, or otherwise, and whether such loss or damage arises directly or indirectly from Goods provided by the Company to the Customer.
12.3 Should the Company be found liable in relation to defective or damaged Goods supplied by the Company, that liability is limited, at the Company’s option, to either:
(a) Replacing the defective or damaged Goods; or
(b) Refunding the price paid by the Customer for the defective or damaged Goods.
12.4 Where the Company elects to replace the Goods, the Company must make reasonable efforts promptly to do so, but will not be liable for any delay.
13. Force Majeure
13.1 The Company is not liable for any failure or delay in supply or delivery as a result of strike, industrial dispute, natural disaster, shortage or unavailability of stocks of Goods, shortage of labour, lack of skilled labour, delay in transit, import restriction, legislative governmental or other prohibition or restriction, fire, flood, hostilities, commotions, or other causes whatsoever beyond the Company’s reasonable control.
14. Trading Businesses
14.1 Where the Customer is a Trading Business, it may not assign all or any of its rights or obligations under these Terms of Trade without the written consent of the Company.
14.2 The Customer must notify the Company immediately in writing of any change in the effective control of the Customer.
14.3 If there is a change of effective control of the Customer, the Company may, at the Company’s option demand immediate payment of all amounts owing to the Company by the Customer, whether or not such amounts are otherwise due for payment.
15. Governing Law & Jurisdiction
15.1 This Agreement is governed by New Zealand law and the courts of New Zealand shall have non-exclusive jurisdiction in any proceedings relating to it.
