Auckland Quarry Ltd - Terms of Trade (July 2020)
1.0 Definitions – the following definitions apply to these terms of trade:
“Customer” means the person who orders or purchases Goods or Services from Auckland Quarry Limited. Where the Customer is two or more persons, it means those persons jointly, and severally, and includes Customer authorised Agents.
“Agents” means any authorised contractors, carriers, haulers or operators working on behalf of, or for the Customer.
“AQ” means Auckland Quarry Limited together with any other subsidiary and/or related company of Auckland Quarry Limited that has supplied goods or services.
“Goods” means goods provided by Auckland Quarry Limited and supplied to the customer pursuant to these Terms of Trade
“Services” means any services performed or provided by Auckland Quarry Limited pursuant to these Terms of Trade
“Order” means an agreement between Auckland Quarry Limited and the Customer for Auckland Quarry Limited to supply Goods and/or Services to the Customer pursuant to these Terms of Trade.
“Quote or Estimate” means a written or verbal offer from Auckland Quarry Limited to the Customer to supply Goods and/or Services for a price subject to any specified terms and condition, and pursuant to these Terms of Trade.
“Terms of Trade Credit” means the terms of trade credit entered into between Auckland Quarry Limited and the Customer.
“Obligations” means all monies owing to AQ that may be accrued pursuant to these Terms of Trade
2.1 These Terms of Trade apply to all Goods or Services supplied by AQ. A Customer’s verbal or written acceptance of a Quote or Estimate constitutes a legally binding agreement to purchase Goods or Services on these Terms of Trade.
2.2 The prices of Goods and Services will be those specified in AQ’s current price list in effect at the time of the transaction, or as per a Quote or Estimate. An estimate as to price or quantity is not binding on AQ.
2.3 Prices/Quotes/Estimates do not include GST, are valid for 30 days, and are based on ex yard unless specified otherwise.
2.4 Where a Quote includes an estimate of quantities or weight, and the actual quantity supplied is significantly different from the estimate, AQ reserves the right to revise the quote.
2.5 Where a Customer purchases Goods from AQ the final quantity or weight of the Goods supplied shall be at the discretion of AQ.
2.6 Where a Customer uses tipping facilities at AQ, the final tipped product definition shall be at the discretion of AQ.
3.1 Except where the Customer has an approved Trade Credit Account with AQ, payment is due prior to Goods being loaded, or a load discharged, or services being provided. If a vehicle arrives on site and there is no pre-payment by cash, cheque or EFTPOS, or a Cash Account is pre-approved, AQ has the right to direct the Customer or Agent to leave without discharging the load or loading goods.
3.2 When charged to a Trade Credit Account, the Customer shall pay in full for the goods and services no later than the 20th of the month following the date of AQ's invoice. The Customer shall not have any right of set-off or deduction against that required payment in relation to any money which AQ may owe the Customer.
3.3 If the Customer fails to pay the full amount due on or before the due date AQ (without prejudice to its other rights and remedies) shall be entitled to charge the Customer interest on the amount outstanding from the due date until payment is received. The interest rate shall be the current overdraft rate at AQ’s Bank plus 2.5%. Interest will be calculated on a monthly or part thereof basis.
3.4 If the Customer is in default under any agreement with AQ or commits an act of insolvency or bankruptcy, applies to or goes into liquidation, receivership or voluntary administration, enters into a creditors' composition, has its credit standing impaired in any way, or amalgamates with another company, the amount owing for Goods and Services supplied by AQ shall become immediately payable, regardless of any agreed terms of payment.
3.5 If the event the Customer defaults on payment of his Obligations to AQ then AQ shall be entitled to recover from the Customer all and any costs associated with, but not limited to, debt recovery actions.
4.0 Withdrawal of Credit/Decline to supply
AQ may at any time withdraw the provision of credit to the Customer, or decline to supply any product or service, at its sole discretion.
5.0 Delivery, Supply and Return
5.1 Delivery of goods is deemed to be made to the Customer at the point the goods are dispatched from AQ premises, or are loaded onto the Customer’s vehicle or the Customer's Agent’s vehicle at AQ premises.
5.2 All carriers of goods in and out of AQ premises on behalf of Customers are deemed to be agents of the Customer.
5.3 Where AQ is to deliver the Goods, the Customer must:
(a) ensure AQ has reasonable all-weather access to the site, to enable AQ to deliver the Goods safely;
(b) locate, mark and advise a clear and safe delivery zone for AQ to deliver to;
(c) locate, mark and advise AQ of all gas pipes, water pipes, sewerage lines, drainage lines, telephone cabling and other utilities that are on, or near, or adjacent to the delivery point, and of any actual or possible subsidence, slip, erosion, flooding or any other thing that might constitute a hazard on the land where Goods are to be delivered; and
(d) indemnify AQ against any costs, claims and damages incurred in the delivery of the Goods including any cleaning, repairing damage to the site or delivery equipment, returning the delivery vehicle to the road and making good any damage to the road or footpath, provided AQ has acted with reasonable care and skill. The Customer is responsible for the removal of any mud, clay etc from the delivery truck wheels and for the removal of mud, clay etc tracked or on footpaths, roads etc by any AQ trucks used in the delivery of Goods to the Customer’s worksite.
5.4 If AQ is unable to deliver or supply ordered goods, or perform or provide services due to a cause beyond its control (including any force majeure event) it may suspend delivery or supply or services, or cancel the Customer's order, without incurring any liability for loss or damage suffered by the Customer.
5.5 Goods will only be accepted for return within three weeks of supply and with the prior approval of AQ. Goods are returned at the Customer’s cost and the Customer must provide AQ with the date of delivery or supply, and the delivery docket numbers or invoice numbers. Goods must be in an undamaged, unused and resaleable condition.
5.6 A goods return handling fee of 10% of the value of the goods returned will be deducted from any credit due.
6.0 Consumer Guarantees Act 1993
6.1 The provisions of the Consumer Guarantees Act 1993 shall not apply to the supply of goods or services by AQ to the Customer where the Customer acquires or holds themselves out as acquiring the goods or services for the purposes of a business.
6.2 Where the Customer purchases Goods for re-supply, the Customer’s terms of trade must contain an equivalent provision to clause 6.1.
7.1 The warranty on materials supplied by AQ but not manufactured by AQ shall be the warranty of the original manufacturer.
7.2 All statutory, express or implied warranties by AQ including, without limitation, the implied warranties of merchantability and fitness for any particular purpose, are expressly excluded (to the extent permitted by law).
8.0 Limitation of Liability
8.1 The liability of AQ in respect of all claims for loss, damage or injury arising from breach of any of AQ’s obligations under these Terms of Trade or from any act or omission of AQ is limited, in each case, to the lesser of:
(a) replacement or repair of the affected Goods, or re-supply of the Services;
(b) payment of the actual cost of replacing or repairing the affected Goods, or re-supplying the Services; and
(c) the price of the affected Goods or Services.
8.2 AQ shall not be liable for any direct or indirect loss or damage (including without limitation loss of profits or savings or for any indirect or consequential loss or damage), however caused, arising out of or in connection with the supply of Goods or Services by AQ, except as set out in clause 7.1.
8.3 No action arising out of the supply of Goods or Services by AQ, regardless of form, may be brought more than six months after the Customer becomes aware, or reasonably ought to have become aware, of the circumstances giving rise to the action.
9.0 Security for Payment
9.1 The Customer grants to AQ a security interest in the Goods and in any proceeds arising from the sale of the Goods to secure the obligations of the Customer to pay the purchase price for the Goods, and any other obligations by the Customer to AQ under these Terms or the Terms (together these are the "Obligations") as and when the same become due.
9.2 The Customer agrees that if the Customer is in breach of any of its Obligations:
(a) the Customer will, upon receiving a written request from AQ and at its own cost and expense and without delay deliver all or any of the Goods to AQ’s yard;
(b) AQ may (and the Customer grants AQ a licence to), at any time without giving notice either itself or through an authorised agent, enter into any place where the Goods are located and remove the Goods, if the Customer fails to deliver the Goods as required under this clause;
(c) AQ may sell all or any of the Goods without giving prior notice of the sale to the Customer; and
(d) the customer shall remain liable to AQ for any difference between the market value received for the Goods at the time they are first able to be sold and the amount of the Obligations which are in default.
10.1 AQ will retain ownership of all Goods supplied until it receives payment in full of all amounts owing by the Customer in respect of their Trade Credit Account and or any monies now or hereafter owed by the Customer to AQ.
10.2 If any of the Goods are attached, fixed or incorporated in or used as material for other goods before payment is made ownership in the whole of the other goods will be and remain with the AQ until payment is made. AQ’s security Interest in the Goods will continue in the terms of section 82 of the PPSA.
10.3 AQ will have a right to stop and retrieve the Goods in transit whether or not ownership has passed.
10.4 Until payment is made by the Customer, the Customer agrees:
(a) to hold the Goods as trustee for AQ and will deal with the Goods as agent for and on behalf of AQ (but will not hold the Customer out as an agent of AQ to any third parties;
(b) that if the Goods are re-sold, the proceeds of re-sale will belong to AQ and the Customer will keep the proceeds of sale in a separate account for which separate records are kept.
11.0 Personal Property Securities Act 1999 (“the PPSA”)
11.1 The Customer acknowledges that these Terms constitute a security agreement which creates a security interest in favour of AQ in all Goods previously supplied by AQ to the Customer (if any).
11.2 The Customer acknowledges and agrees that the Customer grants a security interest to AQ in all Goods supplied by AQ to the Customer and any subsequent supplies of Goods to the Customer.
11.3 The Customer grants to AQ a Security Interest in all of the Customer’s present and after-acquired property that AQ has performed services on or to or in which goods or material supplied or financed by AQ have been attached or incorporated. The Customer further agrees that AQ shall, at its discretion, be entitled to register and maintain a General Security Agreement (“GSA”) over all present and future acquired personal property of the Customer until the term of trade between the parties have been terminated and there are no amounts owed to AQ by the Customer and all obligations herein have been fully paid, satisfied and performed and AQ has agreed in writing to release the Customer.
11.4 The Customer undertakes:
a) to sign any further documents and/or provide any further information (which information the Customer warrants to be complete, accurate and up-to-date in all respects) which AQ may reasonably require to enable registration of financing statements or financing change statements on the Personal Property Securities Register (“PPSR”);
b) not to register a financing change statement as defined in section 135 of the PPSA or make a demand to alter a financing statement pursuant to section 162 of the PPSA in respect of the Goods without the prior written consent of AQ;
c) to give AQ not less than 14 days’ prior written notice of any proposed change in the Customer’s name and/or any other changes in the Customer’s details (including but not limited to changes in the Customer’s address, telephone number, email address; trading name or business practice);
d) to pay all costs incurred by AQ in registering and maintaining any financing statement (including registering a financing change statement) on the PPSR and/or enforcing or attempting to enforce any security interest created by these Terms including executing subordination agreements;
e) to be responsible for the full costs incurred by the AQ (including actual legal fees and disbursements on a solicitor/client basis) in obtaining an order pursuant to section 167 of the PPSA; and to waive any rights it may have under sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
11.5 Pursuant to section 148 of the PPSA, unless otherwise agreed to in writing by AQ, the Customer waives the right to receive the verification statement in respect of any financing statement or financing change statement relating to the security interest.
11.6 The Customer will have none of the rights referred to in paragraphs (a), (c) to (e) and (h) and (i), all inclusive, of section 107(2) of the PPSA.
11.7 The Customer agrees that nothing in section 113, 114(1)(a), 117(1)(c), 133 and 134 of the PPSA will apply to these Terms, and, with AQ’s agreement, contracts out of such sections.
11.8 The Customer agrees that immediately on request by AQ the Customer will procure from any third parties such agreement and waivers as AQ may at any time require to protect AQ’s security position.
12.0 Force Majeure
No claim or liability will arise against AQ under these Terms or any Order or Quote, if and to the extent that AQ failure or omission to carry out or observe any provisions of these Terms or any Order or Quote arises by reason of Force Majeure. “Force Majeure” means any event outside the reasonable control of AQ and includes, without limitation, fires or other casualties or accidents, power outages, acts of God, strikes and lockouts, severe weather conditions, delay in supply or materials or unavailability of materials, war or other violence, or the introduction of any law, order, regulation, demand or requirement of any governmental agency.
13.0 Variation of terms
AQ may, at its discretion, vary these Terms of Trade from time to time and the Customer will be bound by the terms of trade in effect at the date of sale of those goods or services. A copy of the latest version is available on request.
14.1 AQ failure or delay to exercise or enforce any right it has under these Terms shall not operate as a waiver of AQ’s right to exercise or enforce such right or any other right in the future.
14.2 Each provision in these Terms is severable in whole or in part. If any provision is held to be invalid or unenforceable for any reason it shall be severed from these Terms of Trade, but shall not affect the remaining provisions.
14.3 The Customer shall immediately notify AQ in the event the Customer changes its name and may be required to complete a new credit application to continue with trade credit.