OTBURY GROUP LIMITED
(includes all divisions operating under different trading names )
TERMS AND CONDITIONS OF TRADE
1.1.These Terms and Conditions apply to all Quotations provided by Otbury Group Limited to the Purchaser and to all Orders received by Otbury Group Limited from the Purchaser.
1.2. These terms and conditions include any Appendix to the Credit Account Application completed by the Purchaser. If there is any conflict between the provisions of these Terms of Trade and the Appendix, the Appendix will take priority and apply to the exclusion of the relevant provisions of the Terms of Trade.
2.1. In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
(a) “Accounts Receivable” has the same meaning as that given to it in the Personal Property Securities Act 1999.
3. PRICE LISTS
(b) “Collateral” has the meaning given to it in clause 15.1.
(c) “Company” means Otbury Group Limited (including all divisions operating under different trading names)
(d) “Delivery Date” means the date of delivery or uplift of the Goods.
(e) “Goods” means the goods detailed in any Quotation that is accepted by the Purchaser and/or in any Order placed by the Purchaser with the Company.
(f) “Manager” means every director of the Company and every employee of the Company whose title includes the word “manager”.
(g) “Order” means any order made by the Purchaser for Goods to be supplied by the Company.
(h) “Overdue Account” means any amount payable by the Purchaser to the Company which has not been paid in accordance with clause 11.1 of these Terms and Conditions.
(i) “PPSA” means the Personal Property Securities Act 1999.
(j) “Quotation” means any quotation signed by a Manager of the Company and given to the Purchaser by the Company for Goods which the Company proposes to supply.
(k) “Terms and Conditions” means these terms and conditions of trade.
(l) “Upon Demand” means upon demand in writing signed by the Company, any Manager, or any solicitor or agent of the Company.
3.1. Any price lists provided to the Purchaser by the Company are indicative only, are not binding on the Company and are subject to change at any time without notice.
4.1. Unless expressly included in the quotation Goods and Services Tax relating to the supply of any goods is not included in the price and shall be payable in addition to the price.
5.1. Any estimate of costs provided by the Company to the Purchaser does not constitute a sale by description and is not binding on the Company.
6.1. The Company may provide a Quotation for any Goods which it proposes to sell to the Purchaser.
6.2. Quotations are open for acceptance for 30 days from the date on the Quotation, unless withdrawn in writing by the Company prior to acceptance or an alternate period is specified on the Quotation.
6.3 The Company reserves the right at all times up until receipt of the Purchaser’s Order (made in response to the Quotation) to withdraw or vary its Quotation.
6.4. Following acceptance of the Company’s Quotation, the Company shall only be entitled to vary the Quotation in the following circumstances:
(a) If the Company suffers any increase in the cost of providing the Goods which is beyond its control between the date of the Purchaser’s acceptance of the Quotation and the Delivery Date.
(b) Pursuant to Clauses 7 and 9 of these Terms and Conditions.
7.1. All terms, conditions and warranties (whether implied or made expressly) whether by the Company or its agents or employees or otherwise relating to the quality and/or fitness for purpose of the Goods or any part of the Goods are to the extent permitted by law excluded.
8. VARIATION OF AGREED WORK
8.1. The Company may accept Orders for additional goods beyond those detailed in the Quotation or variations to the Goods detailed in the Quotation as it sees fit.
8.2. Any additional goods beyond those detailed in the Quotation or any variation to the Goods detailed in the Quotation, may be the subject of a further Quotation, but in the event that the extra or varied goods are provided without a further Quotation it shall be charged for at the Company’s normal rates prevailing at the Delivery Date.
8.3. A reduction in the total cost of the Goods will be made in respect of Goods for which a Quotation is provided for but which are not delivered/uplifted by reason of any agreed variation provided that such variation is agreed 14 days prior to the Delivery Date. The reduction will be the amount included in the Quotation for the Goods not delivered/uplifted, less any costs to the Company incurred by the Company as a result of the variation.
8.4. If the supply of any additional goods is agreed under this clause the Company may vary any Delivery Date.
9.1. Once the Purchaser has accepted the Quotation, or placed an Order for Goods, the Order may only be cancelled with the Company’s written consent.
9.2. If the Company accepts the Purchaser’s cancellation given pursuant to clause 8.1, the Company reserves the right to charge the Purchaser for any losses arising from the cancellation. Such sums shall be payable by the Purchaser Upon Demand.
10.1. All samples, descriptive matter, and specifications submitted by the Company with a Quotation are only sufficiently accurate for the purpose of that Quotation. The Company reserves the right to rectify any inaccuracy becoming apparent on the preparation of or provision of detailed specifications.
10.2. Where the Company provides a Quotation on the basis of specifications supplied to it by the Purchaser or a third party, the Company accepts no responsibility for the accuracy of such specifications, for the quantities stated in such specifications or for the suitability of materials specified in such specifications for the purposes stated or any particular purpose. The Company may vary the Quotation if such specifications are inaccurate or inappropriate.
11. ADDITIONAL CHARGES
11.1. Charges additional to those contained in the Quotation may be made to cover the cost of packing, delivery, overtime work, taxes, financing or any cost element not specifically included in the Quotation. Where any freight or shipment is not accepted in accordance with the Quotation and these Terms and Conditions by the carrier which the Company may at its sole discretion elect, the Purchaser shall, in addition to its other liability under the Quotation and these Terms and Conditions, be liable for freight, express, storage, additional costs of handling and any other expenses that may be incurred thereby.
11.2. The Company may at any time require (as a condition precedent to commencing or continuing the manufacture of the Goods or making delivery) satisfactory security or a deposit to be provided by the Purchaser in respect of all sums payable by it.
12.1. Payments of all sums payable to the Company by the Purchaser unless specified otherwise, are due on or before the 20th of the month following the delivery or uplift of the Goods.
12.2. Interest may be charged at the rate of up to 3.0% per calendar month on all Overdue Accounts, such interest being calculated monthly and payable Upon Demand. This provision is without prejudice to the Company’s other rights and remedies arising from such default.
12.3. All costs incurred by the Company in the collection of Overdue Accounts are payable by the Purchaser Upon Demand.
12.4. Any moneys received by the Company for Goods purchased by the Purchaser may be applied to the earliest of the Purchasers purchases for which the Company has not received payment.
13.1. The Purchaser shall provide the Company with 1 calendar weeks’ notice of the required Delivery Date.
13.2. The Purchaser shall notify the Company 2 working days prior to the Delivery Date of whether the Goods are to be delivered and if so the delivery address, or whether the Goods are to be uplifted.
13.3. The Company is not liable for any losses incurred by the Purchaser or any damages for delay in delivery occasioned by any fire, wind, flood, storm, tempest, transport restrictions, strike, lockout, riot or war affecting the Company’s operations or the operations of its suppliers or any other circumstances beyond the reasonable control of the Company or its suppliers.
13.4. The Company is not liable for any claims for contingent liability or consequential damages arising from delay in delivery of the Goods (or any part of them) or from any other cause whatsoever.
13.5. Notwithstanding that the Company may have delayed or failed to deliver the Goods (or any part of them) the Purchaser shall be bound to accept delivery or uplift the Goods and to pay for the Goods in full.
14.1. Risk in and possession of the Goods shall pass from the Company to the Purchaser upon the despatch or uplift of the Goods from the Company, or a location specified by the Company.
15.1. All title and property in the Goods remains with the Company until payment in full (without deduction or set-off) for those Goods and all other goods supplied to the Purchaser by the Company in the same supply is received in clear funds by the Company. Until payment in full is received the Company may, without prejudice to any of its rights or remedies, repossess the Goods, whether or not payment may have been received for part of the Goods, and for that purpose may by its servants or agents enter any premises where the Goods may be situated and take whatever action may be required to repossess the goods whether or not they are fixed to any building. The Company shall incur no liability resulting from the repossession of the Goods and the Purchaser hereby indemnifies the Company, its servants and agents, for any alleged liability resulting from the repossession, and the Purchaser shall pay all costs incurred by the Company in respect of the repossession.
15.2. The Purchaser shall, from the date of despatch or uplift, insure and keep insured the Goods to the full price against fire and all other risks as are usually or customarily covered by a comprehensive insurance policy.
16.1. The Purchaser hereby grants in accordance with the PPSA, a security interest in respect of the Goods, all after acquired property supplied by the Company to the Purchaser, all future advances and all proceeds of any nature and kind (including Accounts Receivable) (“the Collateral”) to secure the payment by the Purchaser to the Company of all amounts the Purchaser may owe the Company from time to time and at any time.
16.2. The Purchaser shall prior to signing the agreement to which these Terms and Conditions are annexed provide the Company with the information in Schedule 1 and, where necessary, evidence of the accuracy of the information and shall immediately at the request of the Company provide all information and/or sign and return to the Company any document required to enable the Company to register a financing statement or a financing change statement in respect of the security interest granted by the Purchaser pursuant to clause 15.1 or any other security interest which the Purchaser shall grant pursuant to the Company’s request.
16.3. The Purchaser shall pay to the Company all costs, expenses, and other charges incurred, expended or payable by the Company in relation to the filing of a financing statement or a financing change statement in connection with these Terms and Conditions.
16.4. The Purchaser:
(a) agrees that if, at any relevant time, the Company does not at that time have priority over all other secured parties in relation to the Collateral, then the Purchaser and the Company will, for the purposes of sections 109(1), 111(1) and 120(1) of the PPSA, be deemed, in accordance with the entitlement to do so under section 107(2) of the PPSA, to have contracted out of that section but specifically on the basis that, as between them and for purposes of these Terms and Conditions and the operation and application of the PPSA, sections 109(1), 111(1) and 120(1) (but amended only by the deletion of the words “with priority over all other secured parties”) is reinstated and contracted back into;
(b) agrees that nothing in sections 114(1)(a), 133 and 134 of the PPSA will apply to these Terms and Conditions, or the security under these Terms and Conditions; and
(c) waives the Purchaser’s right to do any of the following:
(i) receive a statement of account under section 116 of the PPSA;
(ii) receive notification of the proposal to retain Collateral under section 120(2) of the PPSA;
(iii) object to the Company’s proposal to retain any Collateral under section 121 of the PPSA;
(iv) not have goods damaged when the Company removes an accession under section 125 of the PPSA;
(v) receive notice of the removal of an accession under section 129 of the PPSA;
(vi) apply to the Court for an order concerning the removal of an accession under section 131 of the PPSA;
(vii) redeem any Collateral under section 132 of the PPSA; or
(viii) receive a copy of the verification statement confirming registration of a financing statement or a financing change statement relating to the security interest created by these Terms and Conditions.
16.5. If the Goods (or part thereof) or any after acquired property supplied by the Company to the Purchaser (or part thereof) is sold by the Purchaser to a third party prior to payment having been received by the Company for the same the Purchaser shall hold all proceeds of the sale in trust for the Company in a separate bank account for the Company until payment in full without set-off or deduction, for the Goods (or part thereof) or after acquired property supplied by the Company to the Purchaser (or part thereof) has been received by the Company.
17. CONSUMER GUARANTEES ACT 1993
17.1. The Purchaser agrees and acknowledges that either:
(a) the Purchaser does not fall within the definition of “consumer” within the Consumer Guarantees Act 1993; or
(b) all supplies of goods and services by the Company to the Purchaser will be acquired for the Purchaser’s business purposes and accordingly the provisions of the Consumer Guarantees Act 1993 will not apply as between the Company and the Purchaser.
18. THE PRIVACY ACT 1993
18.1. The Purchaser and the Guarantors acknowledge and agree that:
(a) Personal information collected or held by the Company (whether contained in these Terms and Conditions or otherwise obtained) is provided and may be held, used and disclosed for the following purposes:
(i) administering, whether directly or indirectly, the Company’s contracts and enforcing the Company’s rights thereunder;
(ii) marketing goods and services provided by the Company or any entity which holds an interest in the Company or in which the Company holds an interest;
(iii) ascertaining at any time the Purchaser’s creditworthiness and obtaining at any time credit reports, character references or credit statements;
(iv) enabling the Company to notify any credit agency of any application for credit or default on any obligation of the Purchaser to the Company and enabling the Company to provide such personal information to any credit agency so such credit agency can maintain effective accounting records;
(v) enabling the Purchaser to communicate with the Company for any purpose.
(b) Such personal information is collected by and will be held by the Company.
18.2. The Purchaser and the Guarantors have the right under the Privacy Act 1993 to obtain access to and request correction of any personal information concerning the Purchaser and the Guarantors.
18.3. The Purchaser and the Guarantors authorise the Company to obtain at any time from any person or entity, any information the Company may require to process and/or accept any application for credit the Purchaser may make to the Company or to perform or complete any of the other purposes for which the Purchaser and the Guarantors have provided personal information to the Company. The Purchaser and the Guarantors authorise any such person to release to the Company any personal information that person holds concerning the Purchaser and the Guarantors.
18.4. For the purposes of this clause 17 the term “personal information” has the same meaning as given to that term under the Privacy Act 1993.
18.5. If the Purchaser or any of the Guarantors fails to provide information requested by the Company in respect of any application for credit the Purchaser may make, the Company may be unable to process such application.
19.1. In consideration of the Company agreeing to supply the Purchaser at the request of the Guarantors the Guarantors hereby jointly and severally indemnify and guarantee to the Company as follows:
(a) The Guarantors shall perform all obligations of the Purchaser under these Terms and Conditions if requested by the Company to do so and shall pay Upon Demand all monies that at any time are owing or payable by the Purchaser to the Company.
(b) The Guarantors will not be released by any exercise by the Company of any liberty or discretion or by any extension of time or other indulgence given to the Purchaser or by any other thing whatsoever which under the law relating to sureties would but for this provision have the effect of so releasing the Guarantors.
(c) This guarantee is a continuing guarantee and shall not be released or partially discharged by the payment at any time of any money payable by the Purchaser.
(d) The Guarantors agree to also indemnify the Company in respect of all costs, charges and expenses whatsoever which the Company may incur by reason of any default on the part of the Purchaser.
19.2. The liability of the Guarantors shall not be affected by the liability of the Purchaser ceasing or reducing for any cause and shall extend to any amount payable by the Purchaser by way of damages or otherwise to the Company.
19.3. The Guarantors agree that this guarantee shall not be avoided, released or affected by any variation or alteration to these Terms and Conditions.
20. DISPUTE AND ARBITRATION
20.1. In the event of any dispute between the Company and the Purchaser the Purchaser agrees to pay the undisputed part of any moneys owing to the Company and the dispute will be referred to an arbitrator to be agreed between the parties, or to the Disputes Tribunal. The choice between arbitration and the Disputes Tribunal shall be at the discretion of the Company. The arbitrator is to conduct the arbitration proceedings in accordance with the Arbitration Act 1996 and any amendment thereof or any other statutory provision then relating to arbitration.
20.2. If the parties cannot agree on an arbitrator, the arbitrator will be appointed by the President for the time being of the Auckland District Law Society.
20.3. The provisions of Article 11 of the First Schedule of the Arbitration Act 1996 are to be read subject hereto and varied accordingly.
20.4. The procedures set out in this Clause 19 will not prevent the Company from taking proceedings for the recovery of any moneys payable hereunder which remain unpaid and from exercising the rights and remedies in the event of such default prescribed hereunder or permitted by law.
21.1. The Purchaser shall not without the consent of the Company wholly or in part assign, transfer or part in any way with the benefit of these Terms and Conditions or any right or interest thereunder or subcontract any duty or obligation hereunder.
21.2. The Purchaser acknowledges and consents to the Company’s ability, in its absolute discretion, to assign, transfer or part in any way with its rights and liabilities under these Terms and Conditions, including the benefit and the burden of these Terms and Conditions.
22.1. If any of these Terms and Conditions is held to be ineffective by virtue of non-registration, illegality or otherwise then such condition, or part of it, shall be severed from all other terms and conditions and all remaining terms and conditions or part of them will be enforceable.
23.1. These Terms and Conditions shall supersede all other contracts either directly negotiated or inherited under these Terms and Conditions or previously in force between the Company, the Purchaser and the Guarantors.
24. PROPER LAW
24.1. The law of New Zealand shall govern in respect of these Terms and Conditions and the Purchaser hereby submits to the non-exclusive jurisdiction of the New Zealand Courts.