Architectural Aluminium Installations Limited – Terms and Conditions of Trade
1.1 “AAIL” shall mean Architectural Aluminium Installations Limited or any agents or employees of AAIL.
1.2 “Customer” shall mean the Customer, any person acting on behalf of and with the authority of the Customer or any person purchasing goods and services from AAIL.
1.3 “Goods” shall mean:
(a) all materials and services agreed to be supplied by AAIL to the Customer under any contract, arrangement or understanding between AAIL and the Customer;
(b) all future supplied Goods and all additional or different property as may in the future from time to time be supplied;
(c) the Goods as contained and described in invoices, statements and other documents issued by AAIL;
(d) “Goods”, “Inventory”, “Other Goods” and “Personal Property” as those terms are defined in the Personal Property Securities Act 1999; and
(e) all present and other acquired personal property and collateral including proceeds of whatever nature or kind that may arise.
1.4 “Order Completion Date” shall mean that date specified on the Order Confirmation.
2.1 AAIL accepts the Customer’s order on these conditions which conditions (together with the Customer’s acceptance) constitutes the entire agreement between AAIL and the Customer (except to the extent that such terms and conditions are modified in writing and signed by both parties) and it is expressly agreed that there are no other understandings, representations or warranties of any kind (express or implied) forming part of this contract.
3. CANCELLATION OF ORDER
3.1 Any variation, waiver or cancellation of the Customer’s order shall be of no effect unless accepted in writing by AAIL within 7 days of the Order Completion Date (“Cancellation Date”).
3.2 Any variation, waiver or cancellation of the Customer’s order after the Cancellation Date shall be of no effect unless accepted in writing by AAIL.
3.3 Where AAIL accepts cancellation of the Customer’s order referred to in clause 3.2 above, AAIL may levy a handling charge of up to 25% of the price in the case of non processed orders and 50% of the price in respect of processed orders.
4. PRICE AND PRICE VARIATION
4.1 Prices quoted are excluding GST unless otherwise stated. Unless otherwise agreed in writing, the quoted price of the Goods will be the current price on the day of quotation and may be subject to change without notice. Any increase in the cost of the Goods (either due to an increase in the cost of materials or associated labour) will be payable by the Customer. Prices do not include any delivery surcharges.
4.2 AAIL shall be entitled to adjust any price quoted from time to time and the Customer agrees to pay any such adjusted price to take account of variations in the cost to AAIL of carrying out the whole or any part of the contract arising from any of the following:
(a) delays in delivery as a result of instructions or lack of instructions from the Customer, the Customer’s failure or inability to fulfil the obligations under the contract or any action or inaction by the Customer or other circumstances beyond AAIL’s control;
(b) variations in the cost of rates of all statutory, government or local government or governmental authority charges and obligations; or
(c) any correction of errors or omissions on the part of AAIL or any or its representatives.
5.1 All Goods and services sold are subject to the Goods and Services Tax payment.
6.1 Unless otherwise agreed, the purchase price shall be paid to AAIL at its address within 20 working days from the day the claim is served in accordance with the Construction Contracts Act 2002. Payment will not be accepted by any means other than cash, cheque or electronic direct credit and will not be deemed to be made until received by AAIL in cleared funds.
6.2 If payment by way of progress claims is agreed between the Customer and AAIL, such progress claims shall be made in full with no retentions.
6.3 Any variations requested by the Customer prior to the commencement of shop drawings will be completed at tender rates and any variations requested by the Customer after the commencement of shop drawings will be completed at normal charge out rates and shall include any costs incurred in changing shop drawings.
6.4 If any account is in dispute, the undisputed portion of the account shall be payable in accordance with the normal means of payment as provided in clause 6.1. Payment of the disputed portion may be withheld provided the matter is brought to AAIL’s attention immediately it is discovered and a payment schedule setting out the particulars of the dispute be served on AAIL within 20 working days from the date the payment claim is served on the Customer.
6.5 AAIL reserves the right to suspend delivery of further Goods if the terms of payment are not strictly adhered to by the Customer.
6.6 Without prejudice to its rights to sue for payment or exercise any other remedy where any payment is not made on the due date AAIL may charge the Customer interest on the amount outstanding at the rate equal to 3% per annum over the base lending rate from time to time of AAIL’s bankers (from the due date of payment until payment is received by AAIL) but the charging of interest does not extend the time for payment nor imply any forbearance to sue or otherwise recover overdue monies.
6.7 Any expenses, costs or disbursements incurred by AAIL in recovering any outstanding monies including debt collection agency fees or solicitors costs shall be payable by the Customer.
7.1 AAIL shall deliver the Goods to the address stated on the Order Confirmation or as agreed by AAIL in writing.
7.2 The Customer will incur the cost of carriage of the Goods being an additional charge to the invoiced price of the Goods.
7.3 AAIL will not be responsible for any part delivery or delay in delivery of the Goods as a result of events occurring beyond AAIL’s control. AAIL shall not be in any way responsible for any consequences (direct or indirect) arising from such delay or non-delivery.
7.4 Any quotations of delivery times by AAIL are made in good faith but as estimates and not commitments. AAIL shall not be bound by such estimates.
7.5 The Customer agrees to inform AAIL within 30 days of the date of invoice if proof of delivery is required. After this period, no liability will lie with AAIL for proof of delivery.
8.1 AAIL’s liability for shortages in the quantity of the Goods supplied is limited to making up the shortages. No claim for shortages in quantities will be allowed unless the Customer gives written notification of the shortage in writing within 3 days of delivery and provides a reasonable opportunity for AAIL to take all necessary steps to investigate the claim.
9. PRIVACY ACT 1993
9.1 The Customer authorises AAIL to collect, retain, and use personal information about the Customer (including the information collected in this document) for the following purposes only:
(a) assessing the Customers creditworthiness;
(b) disclosing to a third party details of this application and any subsequent dealings it may have with AAIL for the purpose of recovering amounts payable by the Customer and providing credit references;
(c) marketing Goods and services provided by AAIL to the Customer.
10.1 The Goods remain at AAIL’s risk until delivery to the Customer.
10.2 Delivery of Goods shall be deemed complete when AAIL gives possession of the Goods directly to the Customer or possession of the Goods is given to a carrier, courier or other bailee for purposes of transmission to the Customer.
11. OWNERSHIP AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999)
11.1 Ownership in Goods supplied by AAIL passes to the Customer only when the Customer has made payment in full for all Goods provided by AAIL and of all other sums due to AAIL by the Customer on any account whatsoever (including any default interest pursuant to clause 6.6 and enforcement and legal costs pursuant to clause 6.7). Until all sums due to AAIL by the Customer have been paid in full, AAIL has a security interest in all Goods.
11.2 Until payment is made the Customer agrees to:
(a) enable the Goods to be readily identifiable as the property of AAIL;
(b) maintain the Goods so supplied in good order and condition and to return the Goods immediately if called upon to do so by AAIL.
11.3 The Customer hereby agrees to meet all costs of and any incidentals in the recovery of the Goods as well as any shortfalls between the amount owing and the value of the Goods recovered.
11.4 AAIL shall be entitled immediately to cancel the Customer’s rights under the terms of trade by notice to the Customer if the Customer defaults in payment on the due date, time for which is strictly of the essence, or fails to comply with any of these general conditions or any terms of any particular contract of sale between AAIL and the Customer, or if AAIL receives any information which, in the opinion of AAIL, indicates uncertainty as to the Customer’s ability to meet its financial commitments. The right of cancellation under this clause 11.4 is in addition to any other right of cancellation AAIL may have whether pursuant to these general conditions or any particular contract of sale, or any statute or at common law or in equity.
11.5 If any one or more of the events occurs, or upon cancellation under clause 11.4, or upon cancellation pursuant to any other right, the Customer hereby gives AAIL irrevocable authority, without prejudice to any rights or remedies of the Company, to:
(a) recover possession of all Goods in respect of which the Company has retained title either by removing the Goods from the possession or control of the Customer, the duly appointed liquidator or receiver of the Customer, the Customer’s purchaser, or the duly appointed liquidator or receiver of the Customer’s purchaser;
(b) enter any premises, and if need be forcibly, for the purposes of repossession or impounding any goods and in such event the Customer shall indemnify AAIL against all claims that may be made upon AAIL as a consequence of AAIL exercising such power of entry and removal;
(c) employ the services of any person or enter upon and remain upon any premises occupied by or controlled by the Customer to exercise any of the preceding rights; and
(d) give notice to any third party of AAIL’s rights pursuant to these general conditions and of the exercise of any of AAIL’s rights or remedies and the Customer shall have no claim against AAIL for any loss, direct or indirect, suffered by AAIL as a consequence of such notice being given by AAIL.
11.6 It is agreed and acknowledged that by these terms and conditions:
(a) a Purchase Money Security Interest (“PMSI”) pursuant to the Personal Property Securities Act 1999 (“PPSA”) is granted in priority to all other creditors by the Customer in favour of the AAIL in all Goods from time to time supplied.
(b) AAIL may at the Customer’s cost register the PMSI interest under the PPSA by registering a financing statement and if at some later date additional or different property is supplied, to provide if necessary for registration a new collateral description by registering a financing change statement. This will not affect AAIL’s right to register subsequent financing statements, and to register subsequent financing change statements in respect of any other amendments;
(c) the Customer agrees to provide AAIL with such information as it may need to enable registration of the PMSI under the PPSA and shall promptly execute any documents to ensure that the security interest under these terms and conditions is a first ranking perfected security interest and waive the right to receive a copy of the verification statement issued upon registration of the financing statement or of any financing change statement;
(d) that the Customer has received valuable consideration from AAIL and agrees that it is sufficient; and
(e) the Customer shall not under any circumstances initiate any change to the registered financing statement.
12. CONSUMER GUARANTEES ACT 1993
12.1 The guarantees contained in the Consumer Guarantees Act 1993 (“CGA”) are excluded where the Customer acquires the Goods from AAIL for the purposes of a business in terms of section 2 and section 43 of the CGA.
13.1 No claim relating to Goods will be considered unless made in writing within 14 days of delivery.
14.1 Except to the extent of written warranties given by AAIL to the Customer, all warranties and representations in respect of Goods sold are excluded, including (to the extent permitted by law) those expressed or implied by law. Where any written authority conflicts with clauses 14.2 14.3 or 14.4 the provisions of clauses 14.2 14.3 or 14.4 as applicable shall apply.
14.2 While any advice, recommendation, information, assistance or service (“customer information”) given by AAIL to the Customer is given in good faith and is believed to be appropriate and reliable, such customer information is given without liability or responsibility by AAIL and the Customer acknowledges that it relies on its own knowledge and expertise regarding decisions relating to the purchase of the Goods and whether the Goods are fit and suitable for the purpose they are required.
14.3 AAIL shall not be liable:
(a) where the Customer has altered or modified the Goods, mis-applied the Goods , used the Goods (including where the Goods are no longer in the condition the Customer received them), or subjected the Goods to any unusual or non-recommended use, servicing or handling;
(b) for loss caused by factors beyond the control of AAIL;
(c) for any indirect or consequential loss of any kind;
(d) for any second hand goods;
(e) where the terms of any written warranty have not been complied with;
(f) for any goods which have been designation “seconds” “mediums” or “specials”.
14.4 AAIL’s total liability for defective or damaged goods supplied by AAIL is limited at AAIL’s option to either:
(a) replacing or repairing the defective or damaged goods; or
(b) refunding the price of the defective or damaged goods.
14.5 Any Goods returned to AAIL must be returned freight paid. The Customer can claim for any reasonable freight charges. Where AAIL elects to repair defective Goods, AAIL will use all reasonable endeavours to repair the Goods as soon as possible but will not be liable for any delay in completing the repairs.
14.6 When any claim by a Customer relates to some units only of Goods supplied the remainder of the Goods must still be paid for by the Customer.
14.7 No claim for Goods to be returned for any reason will be considered unless advised in writing within fourteen (14) days of delivery.
15. PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES
15.1 If the Customer is a company or trust the director(s) or trustee(s) signing this contract, in consideration for AAIL agreeing to supply Goods and grant credit to the Customer at their request, also sign this contract in their personal capacity and jointly and severally personally undertake as principal debtors to AAIL the payment of any and all monies now or hereafter owed by the Customer to AAIL and indemnify AAIL against non-payment by the Customer. Any personal liability of a signatory hereto shall not exclude the Customer in any way whatsoever from the liabilities and obligations contained in this contract. The signatories and Customer shall be jointly and severally liable under the terms and conditions of this contract and for payment of all sums due hereunder.
16. VARIATIONS TO TERMS AND CONDITIONS OF TRADE
16.1 AAIL may from time to time and in its sole discretion amend, add to or delete any of the terms of these terms and conditions of trade with immediate effect by giving notice to the Customer PROVIDED THAT AAIL shall not make any variation to the nature or extent of the Security Interest granted by the Customer in clause 11.6 without the written agreement of the Customer. AAIL may notify the Customer by delivering to the Customer an invoice with a notice of amendment and receipt of the invoice by the Customer will be deemed to be acceptance by the Customer of the terms and conditions of trade.
17.1 AAIL shall not be liable for delay or failure to perform its obligation if the cause of the delay or failure is beyond AAIL’s control.
17.2 Failure by AAIL to enforce any of the terms and conditions contained in this contract shall not be deemed to a waiver of any of the rights or obligations AAIL has under this contract.
17.3 If any provisions of this contract shall be invalid, void or illegal or unenforceable the validity, existence, legality and enforcement of the remaining provisions shall not be affected prejudiced or impaired.
17.4 The terms and conditions contained in this contract will be interpreted in accordance and governed by the laws of New Zealand.
Telephone: (09) 357 6883
Architectural Aluminium Installations Ltd
PO Box 340-394
Email: [email protected]