The following terms shall be incorporated into every sale (hereafter referred to as Contract) between Te Namu Timber Limited (Te Namu Timber) and the Buyer for the supply by Te Namu Timber of goods or services (both of which are referred to as materials) unless specifically excluded in writing and annexed hereto. No variation of these terms will be binding upon Te Namu Timber unless made in writing. In the event of inconsistency between these terms and the terms of any quotation or other agreement these terms shall take precedence.
1. REPRESENTATIONS AND WARRANTIES
(a) Any representation, undertaking or warranty made by Te Namu Timber or any agent or representative of Te Namu Timber unless recorded in writing and annexed hereto are of no effect and shall not apply to this contract.
(b) All warranties and conditions implied by law (including any warranties as to suitability of the materials for the use to which the Buyer puts them to) are excluded from this contract and shall not apply to it.
(c) It is the Buyer’s obligation to satisfy itself that materials supplied are suitable for the purpose to which the Buyer wishes to use them, and Te Namu Timber does not warrant that the materials are suitable for any particular purpose.
(d) Where Te Namu Timber issues a producer statement in relation to materials the Company does not warrant the accuracy of the statements contained in that producer statement and that producer statement is issued subject to the limitations of liability contained in these terms.
(a) Payment is to be made in full (without set off or deduction) either prior to delivery or by the 20th of the month following delivery.
(b) Receipt of any cheque or other bill of exchange shall not comprise payment until the same has been honoured or cleared.
(c) If the Buyer fails to make payment by the due date, it shall be liable to pay to
TeNamu Timber by way of liquidated damages interest at a rate of 4% per annum above the current bank overdraft rate charged by Te Namu Timber’s bankers for the period during which it remains unpaid calculated on a daily basis. A letter or other evidence from a recognised bank carrying on business in New Zealand to the effect it is Te Namu Timber’s Banker and stating the current overdraft rate applicable to Te Namu Timber for the relevant period shall (subject to manifest error) be conclusive evidence of that rate during that period.
(d) The Buyer must also pay any expenses including legal costs incurred by the Company as a consequence of the Buyer’s default.
If the Buyer shall fail to apply any amount owing on the due date or shall commit any other default under this contract and any such default shall continue for 7 days, then:
(a) All amounts payable by the Buyer shall thereupon become due and payable and Te Namu Timber may enforce payment of the balance of the purchase price and interest shall be payable thereon under clause 2(c) notwithstanding that delivery of the materials has not been affected and that but for this clause payment would not then be due;
(b) Te Namu Timber shall be entitled to refuse to deliver any further materials to the Buyer under this contract or any other contract until any default on the part of the Buyer is remedied;
(c) Te Namu Timber may retake possession of any materials provided by it to the Buyer and for that purpose enter the premises where they may be situated;
(d) Te Namu Timber may by written notice to the Buyer cancel this contract; and any rights exercised by Te Namu Timber pursuant to this clause shall not terminate the Buyer’s liabilities under the contract or to pay damages for any breach of it.
(a) Te Namu Timber shall (unless otherwise stated) deliver the materials by a carrier of its choice to an area at or alongside the site complying with paragraph (d) below. Where the Buyer nominates the use of other services or carriers, any additional costs arising beyond Te Namu Timber’s normal costs shall be borne by the Buyer.
(b) Where small consignments incur additional cost or delivery is specified to a destination other than the Buyer’s quoted point of delivery, any additional freight costs shall be borne by the Buyer.
(c) Any time or date for delivery given by Te Namu Timber is intended only as an estimate and Te Namu Timber shall not be liable for the consequences of delay however arising and the Buyer acknowledges that Te Namu Timber will not accept any liability for any claims or losses arising from its failure to meet the delivery date. Delayed delivery shall not invalidate this contract or subject Te Namu Timber to any penalty and the Buyer will accept the materials when delivered and pay the price prevailing at the date of delivery notwithstanding any such delay.
(d) Where Te Namu Timber is dependent upon other manufacturers or suppliers to provide materials or services, Te Namu Timber is under no liability to the Buyer for the failure of the manufacturer or supplier to provide the materials.
(e) When the materials are available and due for delivery by Te Namu Timber and the Buyer fails to take or accept the same when required to do so under this contract for the purpose of clause 2(a) delivery shall be deemed to have been made on the date Te Namu Timber was willing and able to effect delivery.
5. OWNERSHIP AND RISK
(a) Notwithstanding that title in the materials may remain with Te Namu Timber, the risk in respect of the materials shall pass to the Buyer from the time of removal from Te Namu Timber’s premises or deemed delivery under clause 4(e) and the Buyer must insure the materials for its and Te Namu Timber’s respective interests.
(b) Ownership of the materials shall not pass (and the Buyer upon receipt of the same shall be bailee only) until the Buyer has paid to Te Namu Timber the purchase price and all other sums owing in respect of the materials and in respect of any other goods or services supplied to the Buyer by the Company.
(c) Until the ownership of the materials has passed to the Buyer, it shall not be entitled to sell or deliver possession of the materials to others.
(d) The Buyer irrevocably authorises Te Namu Timber, its agents and servants for so long as title to the materials remains with Te Namu Timber, to search for and remove the materials and for that purpose to enter into any premises where they may be found using such force as is necessary. The Buyer will indemnify Te Namu Timber against any cost and liabilities that may arise as a result of the entry by Te Namu Timber into any premises or the seizure by Te Namu Timber of any materials under this clause.
6. RETURN OF MATERIALS
(a) No claims for alleged defective materials (including damage in transit) will be recognised unless made in writing and received by Te Namu Timber within seven days after delivery. Te Namu Timber reserves the right to inspect the materials and to remedy defects in respect of the materials on the site, but otherwise materials accepted as defective by Te Namu Timber shall be returned to Te Namu Timber at the Buyer’s expense, at the original point of commencement of delivery.
(b) Other than as provided in paragraph (a) above the Buyer may not return or refuse delivery of any materials purchased from Te Namu Timber.
7. LIMITATION OF LIABILITY
Te Namu Timber’s liability under this contract or any contract collateral hereto is limited to replacing (or at the election of Te Namu Timber repairing) any defective materials to the entire exclusion of any other remedy which, but for this clause, the Buyer might have and Te Namu Timber shall be under no liability for any damage, injury direct or consequential or other loss or loss of profits or costs, charges and expenses on the part of the Buyer or any other person other than to repair or replace as mentioned above. Te Namu Timber shall not be liable to the Buyer if for any reason beyond Te Namu Timber’s control it is not able to deliver or supply any of the materials.
(a) The Buyer agrees that (except as provided in these terms) these terms represent the entire agreement between the Buyer and Te Namu Timber.
(b) The Buyer agrees that the following terms used in these terms will have the following meanings:
(i) “Buyer” means the person named as Buyer in the attached invoice;
(ii) “Materials” means all timber and flooring products, glues, oils or Polyurethane timber finishing products, supplied or to be supplied by Te Namu Timber and includes any products, parts and materials referred to in any invoice issued by Te Namu Timber at any time and includes services where applicable;