Terms and Conditions

Acceptance
  1. Any goods supplied by Us to You will be supplied on these terms and conditions only, notwithstanding anything that may be stated to the contrary in Your inquiries or on Your orders. No variation or modification of these terms and conditions will be binding on Us unless accepted by Us in writing.

The Contract
  1. Goods are offered subject to availability. Where Goods are not available, we have no obligation to supply you.

  2. All prices of the Goods are quoted on rates and charges in effect at the date of quotation. Any difference between these rates and charges, and those in effect at the time of delivery at the Goods, will be to Your account. All prices quoted are exclusive of any G.S.T. G.S.T is payable under clause 7 unless otherwise stated by Us in writing.

  3. No order of Goods, once accepted by Us, may be cancelled or varied by You except with Our written consent.

  4. Freight and transit insurance areYour account unless specified to the contrary by Us in writing.

Payment
  1. Unless otherwise agreed in writing, the terms of payment are payment in full in cleared funds on the 20th day of the month following delivery of the Goods (including where Goods are delivered by instalments). You will make all payments due to Us, whether in respect of the price of the Goods or otherwise, in full without deductions of any nature (whether by way of set off. counterclaim or other equitable or lawful claim or otherwise). We may at any time require You to pay for Goods by bank cheque or post-dated cheque.

  2. You shall pay to Us all G.S.T or other value added tax payable on the Goods supplied. Payment shall be due on the date on which payment for the Goods is due.

  3. If You fail to make any payment to Us by the due date, You shall be liable to pay to Us default interest thereon at a rate of 3% per annum above Our current base bank overdraft lending rate calculated on a daily basis on all monies outstanding from the date that payment is due until the date payment is received in full by Us. You shall also be liable to pay all Our expenses and legal costs (calculated as between solicitor and own client) in relation to obtaining remedy of the failure to comply.

  4. We may refuse to deliver Goods if there are any outstanding moneys owing to Us by You or there is any breach of these terms and conditions.

Ownership and Risk
  1. Ownership of the Goods supplied by Us shall remain with Us and shall not pass to You until all amounts owing by You to Us in respect of the Goods have been paid in full and all Your other obligations to Us in respect of the Goods have been met. Until ownership of the Goods passes to You, You agree as follows:

    1. You will hold the Goods on trust for Us as Our bailee

    2. You will store the Goods at your cost separately from other Goods in Your possession and clearly distinguish and identify the Goods as Ours;

    3. Notwithstanding that ownership of the Goods has not passed to You, You agree that transfer of risk in the Goods is deemed to be effected upon the transfer of possession of Goods to You, your agent or your representative or your carrier at Our premises. You will keep the Goods insured for full replacement value and You will note Our interest on the policy of insurance. We may, at any time, request a copy of the policy of insurance and you will promptly provide the same to us:

  2. You must keep full and complete records of the Goods

  3. You must not change Your name, address or contact details without providing Us with at least 30 days prior written notice;

    1. In respect of the PPSA and between Us and You You unconditionally and irrevocably:
      (a) Waive Your right under to PPSA to receive a copy of any financing statement or financing chance statement;
      (b) Agree that, to the maximum extent permitted, section 114(1)(a), 133 and 134 will not apply:
      (c) Have none of the rights referred to in sections 107(2)(cHe) and 107(2)(h)-(j} all inclusive and
      (d) Agree that where We have rights in addition to, or existing separately from those in Part 9 those rights will continue to apply and, in particular, those rights will no! be limited by section 109;
      (e) Agree that where any good becomes an accession as defined in the PPSA, you will not apply to the court for an order concerning the removal of the accession
      (f) Agree that you will not enter into or accept, or allow any other person to enter into or accept, a financing change statement in relation to a financing statement registered by reference to it under the PPSA;
      (g) Agree that You will not 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 an accession or otherwise);

    2. If the Goods have not been paid for in full by the due payment date or are at risk (as defined in PPSA), We or Our agent(s) may (in addition to Our other rights but subject to the Credit (Repossession) Act 1997) enter Your premises (or other premises to which You have access and where the Goods are stored or where We reasonably believe the Goods are stored) at any time, without notice and search for and recover the Goods and may resell the Goods or retain the Goods for Our own benefit, without incurring any liability to You or any person claiming through You. You may not revoke the permission granted in this sub-clause.

    3. Where You provide material to Us to be processed then We shall have a general and particular lien in respect of those Goods for all sums due at any time from You. We may sell or dispose of such Goods at Your expense and without liability to You and may apply the proceeds in or towards such sums.

Delivery
  1. If You do not accept delivery of the Goods or should We withhold delivery pending payment or adequate arrangement as to payment or unloading, delivery shall be deemed to have been made when We are or were willing to deliver the Goods. You will nevertheless make any payments provided herein upon the basis that such delivery has been affected.

  2. Delivery of Goods may be by instalments.

  3. Without limiting any other right We may have, We may charge in addition to the price of the Goods, all storage and transportation charges. You will be responsible for providing adequate facilities for unloading and storage of Goods at Your premises unless otherwise agreed in writing. Where We agree to unload the Goods, You will pay us any costs we incur as a result, plus G.S.T., if any.

Suitability of the Goods
  1. The Goods shall be subject to the (relevant) standard tolerances of the industry as published by Us and available on request.

  2. Subject to clause 17, it is Your responsibility to ensure that the grade and type of Goods chosen (including coatings and fittings) are suitable for the environment in which they will be installed and that the Goods are suitable for the treatment or processing required by You. You are also responsible for ensuring that Our advice covering all aspects of correct selection, storage, handling. installation and maintenance of the Goods has been complied with.

Conditions and Warranties
  1. If You are a "consumer'' under the Consumer Guarantees Act 1993 ('CGA''):

    1. The CGA will not apply where You acquire or hold yourself out as acquiring the Goods for the purposes of a business; and

    2. Subject to clause 17.1, nothing in these terms and conditions affects any rights a consumer may have under the CGA.

  2. No agent or representative of Ours is authorised to make any representations, statements, warranties, conditions or agreements not expressly set forth in these terms and conditions of sale and We are not in any way bound by any such unauthorised statements nor can any such statement be taken to form part of any contract with Us collateral to these terms and conditions.

  3. 19. You warrant that any design or instructions furnished or given by You will not breach the intellectual property rights or other rights and interests of Any other party.

On-Selling Goods Manufactured by Us
  1. If you on-sell Goods manufactured by us:

    1. You will not give any express guarantees or make any representations on behalf of U, as manufacturers of the Goods, without Our written consent, except within the limits of any technical literature which may be agreed from time to time between Us and You;

    2. You will correctly advise Your customers as to the purpose to which the Goods should and should not be put in accordance with material produced by Us from time to time and industry best practice.

    3. Any literature which You might supply to your customers relating to the Goods will comply with the Consumer Guarantees Act 1993;

    4. You will immediately notify Us in writing of any claim or demand that You receive in respect of the Goods and give us all details concerning the claims demand;

    5. You will contract out of the Consumer Guarantees Act ·1993 effectively and in writing whenever You agree to provide Goods manufactured by Us to your own customer, for the purpose of that business and notify Your customer of the effect of this clause; and

    6. You will effectively and in writing oblige each of your own customers to contract out of the Consumer Guarantees Act 1993 whenever such a customer agrees to supply Goods manufactured by Us to one of its own customers for the purposes of that customers business

Indemnity
  1. You hereby indemnify and undertake to keep Us, Our officers, employees and agents ("Indemnified Party.) at all times fully and effectively indemnified against al! losses, liabilities, costs, penalties, damages, claims, charges, expenses, actions and demands which the indemnified Party (or any if them) may incur, or which may be made against the indemnified Party (or any of them) as a result of or in relation to:

    1. Any act, omission, neglect or default by You or any subsequent purchasers of Goods manufactured by Us, or

    2. Any failure on Your part to perform any of Your obligations or warranties under these terms and conditions.

Our Liability
  1. To the fullest extent permitted by law, We will not be liable for:

    1. Loss caused by any factor beyond Our control;

    2. Failure to Deliver to You by any specified dates:

    3. Any damage to, or defectiveness or malformation in any part or parts of the finished article eventually supplied to you

    4. A percentage of the Goods to be treated becoming wastage or scrap

    5. You testing the Goods;

    6. The loss of or damage to any of Your chattels left within Our possession or control (whether such loss or damage results from Our negligence or default or otherwise howsoever)

    7. The loss of or damage to Goods whilst in transit (whether such toss or damage results from Our negligence or default or otherwise howsoever);

    8. Deterioration of Goods as a result of exposure to the elements after delivery

    9. Subject to clause 17, any advice, recommendation, information, assistance or service provided by Us in relation to the Goods, their use or application: and

    10. Loss of profits, consequential, indirect or special damage or loss of any kind whatsoever and howsoever arising.

  2. Insofar as We may be liable notwithstanding clauses 17 and 22, Our total liability whether in tort (including negligence), contract or otherwise for any loss or damage or injury arising directly or indirectly from any defect in or non compliance of any Goods or any other breach of Our of obligations is, subject to clauses 17 and 22, limited to, at Our option, either

    1. Replacing, at Our premises those Goods, or

    2. Refunding the sale price of those Goods.

  3. No claim based on defective Goods will be allowed unless:

    1. This claim is notified to Us within 7 days of delivery to You; and

    2. We are given an opportunity to investigate the claim

  4. In respect of defective Goods not manufactured by Us, We shall in no event be liable to pay to You any amount in excess of such amount (if any) as We shall have received from Our supplier in respect thereof.

  5. Insofar as We may be liable notwithstanding clauses 17 and 22. Our liability for shortages in quantity and loss consequential to shortages in quantity is, subject to clause 17, limited to making up shortages. No claim for shortages in quantity wilt be allowed unless:

    1. This claim is notified to Us within seven days receipt of the Goods by You, and

    2. We are given an opportunity to investigate the claim.

  6. If

    1. any amount payable by You to Us is overdue or You fail to meet any other obligation to Us (whether in relation, to the sale of Goods or otherwise) or in Our opinion You are likely to be unable to meet your payment or other obligations to Us

    2. You become insolvent, have a receiver appointed in respect of all or some of your assets, make or are likely to make an arrangement with your creditors or have a liquidator (provisional or otherwise) appointed or are placed under statutory or official management, or

    3. Your ownership or effective control is transferred or, in Our opinion, the nature of Your business is materially altered then in addition to and without prejudice to Our other remedies·

    4. We may cancel any outstanding order placed by You or all or any part of any contract or contracts with You which remain unperformed;

    5. All amounts outstanding under these terms or any other contract with Us shall, whether or not due for payment, immediately become due and payable, and

    6. We may remove any Goods in Your possession or control (including any Goods that have become an accession under the PPSA) and dispose of them or retain them for Our own benefit and for that purpose We may, subject to the Credit (Repossession) Act 1997, without notice, enter directly or by Our agents on any premises where we believe Goods may be stored and remove such Goods, without in any way being liable to any person.

Assignment
  1. We may at any time assign to any other person (being a related company of Ours within the meaning described to that term by section 2(3) of the Companies Act 1993) an or any part of the debt owing to Us. Notwithstanding any rule of common law or equity to the contrary or the appointment of a liquidator, receiver and/or manager over You or the assets thereof the assignee thereof shall be entitled to claim fu!I rights of set off or counterclaim against You, the charge-holders or successors in respect of the debt or part thereof so assigned You may not assign or rights interests or obligations under this agreement without our prior written consent.

  2. Further Assurances

  3. You must, at Our request and at Your cost, promptly execute and deliver to Us all security interests and other accruements and documents and do anything e!se, which We consider appropriate to secure payment of any amount payable to Us or performance of any obligation to Us O..{ to perfect or register any security interest or for any other purpose whatsoever (including (if an unlisted company) procuring personal guarantees from Your principal shareholders or if there are no principal shareholders then from all shareholders). You irrevocably appoint Us and each of Our duly authorised officers, severally, to be your attorney to complete, execute and otherwise perfect all all security interests, and other agreements and documents and generally to do all other acts which You are obliged or ought to do under these terms and conditions or We consider may be necessary or expedient to secure the payment of any amount payable to Us and performance of and compliance with any other obligations to Us

General
  1. These terms and conditions will be governed by the law of New Zealand

  2. If at any time We do not enforce any of these terms and conditions or We grant You time or other indulgence, We shall not be constructed as having waived that term or condition or Our rights to later enbforce that or any other terms or condition

  3. In these terms and conditions

    1. "You" or "Your'' refers to the party named overleaf as the Customer or otherwise placing an order to purchase Goods from Us;

    2. "Goods" means all things supplied by Us to You (and includes services where appropriate)

    3. 'Us'' or 'We" or ··our" refers to Delta Roofing & Manufacturing Ltd

    4. "PPSA" means the Personal Property Securities Act 1999

    5. "GST'" means amounts levied or charged pursuant to the Goods and services Tax Act 1985