TERMS AND CONDITIONS

1. APPLICATION OF CONDITIONS

These Conditions of Contract apply to any Quotation or sale or intended sales of Goods by the Seller to the Buyer. No variation to these Conditions stipulated by the Buyer shall be binding unless accepted by the Seller in writing. By dealing with the Seller following receipt of these Conditions the Buyer confirms that the Conditions apply to all contracts with the Seller whether or not expressly set out at the time a Quotation is given or a contract is entered into.

2. DEFINITIONS

In these conditions:
2.1 "BUYER" means the party purchasing or intending to purchase the goods from the Seller. The term Buyer shall not be interpreted in a way that renders ineffective the intention of the parties expressed in these conditions, and in particular Clause 12. For the purpose of this contract, an intending Buyer shall be an agent of the Seller in respect of unpaid money and in particular in respect of the Buyer's obligations under Clause 12

2.2 "GOODS" means products wholly to partially manufactured by the Seller and sold or offered for sale by the Seller:

2.3 "QUOTATION" includes a tender and any other form in which Goods are offered for sale by the Seller: 

2.4 "SELLER" means Steelfort Engineering Co. Limited. 


3. ACCEPTANCE

Unless stated otherwise in the Quotation documents or unless previously withdrawn, a quotation is open for acceptance for a period of 30 days from the date of Quotation. Acceptance after that date will not bind the Seller unless the Seller agrees in writing to be bound.


4. LIMITS OF CONTRACT

Any contract arising from acceptance of a Quotation will include only those Goods, accessories and work that are specified in the Quotation.


5. CANCELLATION OF ORDERS

Orders placed may not be cancelled except by special arrangement with the Seller


6. DRAWINGS

All specifications, drawings, measurements, descriptive matter, weights, dimensions and shipping specifications submitted with a Quotation and the description and illustrations contained in any catalogues, price lists and other advertising matter of the Seller are approximate only and are intended merely to present a general idea of the work or Goods described therein. No particulars contained in any of those materials are binding on the Seller. Under no circumstances shall such particulars be communicated to competitors or be utilised in any way against the Seller's interests.


7. VARIATIONS TO GOODS AND WORK

7.1 Any variations to the Goods or work required by the Buyer shall be specified in writing before the variations are carried out. The cost of any variation (whether it be an addition to or subtraction from the original quoted sum) shall be agreed between the Seller and the Buyer, but if there is no agreement when the variation is carried out, then at the Seller's charge-out rates current at the time of performance variation. In all cases, the cost of any variation shall be for the Buyer's account.

7.2 In the event of the suspension or cancellation of the variation on the Buyer's instruction, or arising from lack of instructions, the contract price may be increased to cover any resulting extra expense incurred by the Seller.


8. METHOD OF TRANSPORT


Unless otherwise stated, the method of transport of the Goods shall be chosen by the Seller. The Buyer may request that Goods be forwarded by a method of transport other than that chosen by the Seller, in which case, any additional cost of such transport shall be paid by the Buyer.


9. DELIVERY


9.1 The Seller shall not be obliged to deliver any Goods or commence any work until it has received acceptance of its Quotation, a written request to proceed and any other information or particulars it may require. Any times for delivery quoted or intimated by the Seller shall be deemed to be estimates only and no claim shall be made against the Seller for failure to deliver within such times. For the purposes of these Conditions (but subject to Clause 9.2) delivery of the Goods shall be deemed to take place when the Goods are delivered by the Seller to the place described in the Buyer's order.

9.2 In the case of sale ex the Seller's premises delivery shall be deemed to take place upon the Goods being uplifted from the Seller's premises.


10. INSURANCE AND RISK


10.1 Unless the Seller notifies the Buyer to the contrary, Goods despatched to the Buyer shall be insured in transit by the Seller to the point of delivery. The Seller's obligation pursuant to this clause is limited to providing insurance to a maximum of $500,000.00. Acceptance of risks by the Seller is subject to compliance by the Buyer with conditions 10. 3 and 10.4.

10.2 Risk in the Goods shall pass to the Buyer immediately upon delivery and it shall be the responsibility of the Buyer to insure the Goods from that time.

10.3 The Buyer shall immediately upon delivery and on the point of delivery inspect the goods to determine whether any Goods have been damaged. The Buyer shall ensure that no later than four (4) days after delivery the Seller has received notice in writing setting out full particulars of the damage of the Goods.

10.4 The Buyer shall ensure the Seller has received notice in writing within eight (8) days of despatch if any or all of the goods ordered have not arrived.

10.5 Failure to comply with Clauses 10.3 and 10.4 may affect the Seller's right to recover any loss arising from damage or non-delivery of the goods and therefore the Seller requires strict adherence to those clauses.

10.6 If the Buyer fails to comply with Clauses 10.3 and 10.4 then notwithstanding damage to Goods supplied or nondelivery of Goods the Seller shall be entitled to recover the purchase price without any deduction whatsoever. Payment shall be made in accordance with this contract.


11. STORAGE


11.1 If:

11.1.1 In the case of sales ex the Seller's premises, the Goods are not uplifted from the Sellers premises within 14 days of notification of availability or despatch; or

11.1.2 In any case, the Buyer is unable to take delivery of Goods, the Seller shall be entitled to arrange for the storage of goods, either at its own premises or elsewhere, on the Buyer's behalf and all charges for storage and insurance shall be payable by the Buyer upon demand being made by the Seller for those costs.


12. PASSING OF TITLE


12.1 Notwithstanding any period of credit, legal and beneficial ownership of any and all Goods supplied shall remain with the Seller until payment in full is made for them and for all other Goods supplied by the Seller to the Buyer.

12.2 If payment is overdue in whole or in part in respect of any goods supplied, the Seller may (without prejudice to any of its other rights) recover or resell them or any of them {notwithstanding any reasonably incidental consequential loss or damage in respect of Goods which have become constituents of other Goods) and may enter upon the Buyer's premises by its servants or agents for that purpose.

12.3 If the Goods are sold (either before or after they become constituents of other Goods, equipment or products) by the Buyer before full payment to the Seller in respect of them then the proceeds of sale thereof shall be the property of the Seller and the Buyer will ensure that such proceeds are at all times identifiable and can, at the request of the Seller, be paid to the Seller or held in a separate fund in trust, on account to Seller. The Buyer's relationship to the Seller in respect of the proceeds of the sale shall be a fiduciary one and the Seller shall have the right to trace the proceeds in accordance with the principle in Re Hallets Estate (1880) 13 CH.□ 696.

12.4 In the event that the Goods referred in Clause 12.3 have been sold or transferred by the Buyer with other Goods or services to a third person for an inclusive contract sum that does not isolate the value of the goods then the Buyer shall be liable to account from the contractual sum an amount equal to the price at which the Seller sold the Goods to the Buyer. That sum will be the property of the Seller. The Buyer's obligation to account for such sums shall be the same as those specified in Clause 12.3 and the Seller shall have the same rights conferred on it by Clause 12. 3 to trace such sums.

12.5 The Buyer shall within two (2) days of receiving a written request from the Seller supply all relevant information including the records of the Buyer to enable the Seller to identify all monies received by the Buyer either wholly or in part from the sale of the Goods.

12.6 The Seller may exercise its right to recover the Goods pursuant to Clause 12.2 at any time and the Seller has an irrevocable license to do so.


13. PRICE


13.1 Goods will be charged at the price appearing in the Seller's current price list at the date of despatch.

13.2 Goods manufactured to the Buyer's specifications will be charged at the price quoted, which price is subject to any revision of dimensions, design or other alterations made to the Goods which are made at the Buyer's request.

13.3 If Goods are required to be installed by the Seller in accordance with Clause 21.2, any expenses and/or losses associated with such installation that are incurred by the Seller shall be in addition to the price of Goods determined in accordance with this Clause 13 and shall be for the Buyer's account.


14. TERMS OF PAYMENT


14.1 Unless otherwise stated, all prices quoted or accepted are in New Zealand currency and are based upon cost factors ruling at the time of quotation or acceptance as the case may be. Prices are nett and payment in full should be made to the Seller on or before the 20th of the month following the date of invoice or progress claim in respect of the Goods provided that payment shall be immediately due when the Buyer receives the proceeds from sale of the Goods to another person.

14.2 The Seller reserves the right during the course of the contract to submit claims for progress payments against work completed and the value of materials to hand, to a value of 90% of the contract price.


15. INTEREST


Interest shall accrue on any money outstanding pursuant to this contract at the rate of 1.5% per month.

16. RECOVERY OF INCREASED COSTS



The Seller shall be entitled to increase the price of the Goods should any of the following events occur from the date of the Quotation and before delivery:

16.1 Any increase in costs due to the requirement to conform with any Act of Parliament, Order in Council or any order, regulation or by-law made with statutory authority by government departments or by local bodies or other authorities;

16.2 Variation in rates of exchange, custom or other duties, insurance and freight charges or the imposition of any levy, surcharge, duty of tax affecting the Goods or services;

16.3 Any adverse change in the availability or supply of materials or Goods;

16.4 Any rise or fall in the cost of materials, labour or general overhead expenses.

Any claim by the Seller for increased costs arising in accordance with Clauses 16.1, 16.2, 16.3 and 16.4will, at the Buyer's request, be supported by an auditors certificate, the cost of which certificate shall be for the Buyer's account. The certificate shall be accepted as conclusive proof of there being an increase in price, as to the amount thereof and as the reason for such increase.


17. RETENTIONS



No retention shall be made by the Buyer unless specifically agreed to in a Quotation.

18. RETURN OF GOODS



18.1 The Buyer shall not return the goods unless he first obtains the written consent of the Seller. 18.2 If the Buyer returns the Goods to the Seller without the written consent of the Seller then the following conditions shall apply:

18.2.1 The Buyer shall immediately arrange to uplift the Goods and the Seller may insist upon immediate payment for the Goods prior to uplifting.

18.2.2 Notwithstanding any rights which the Seller received pursuant to this clause and notwithstanding the fact that the Goods are in the possession of the Seller, the Seller is entitled to recover the price of the Goods from the Buyer pursuant to this contract as if the Goods had not been returned.

18.2.3 The Seller in its sole discretion shall decide when any Goods which have not been unlifted should be sold to a third party. Any proceeds of sale shall be applied firstly in reduction of any unpaid monies and secondly by a refund to the Buyer PROVIDED FURTHER that nothing in this clause shall operate as a defence or entitle the Buyer to set off in equity or otherwise any amount against any claim made pursuant to Clause 18.2.2.

18.3 If the Buyer receives the written consent of the Seller to return the Goods or the Seller decides to accept the Goods then the following conditions shall apply:

18.3.1 The Goods shall be returned by the Buyer at its own expense and at its own risk and shall be returned within 14 days of the Buyer receiving the Seller's written consent.

18.3.2 The Buyer shall ensure the Goods are returned undamaged, unused and with the integrity of the packaging preserved. 18.3.3 If the Buyer does not comply with 18.3.2 then the Seller may notify the Buyer in writing that it refuses to accept the return of the Goods whereupon Clause 18.2 applies OR the Seller may charge the Buyer an amount to compensate the Seller for any damage to the Goods or packaging. The amount shall be decided by the Seller in its sole discretion.
18.3.4 The Seller may charge an administration fee of 10% on the purchase price of the goods upon receipt of the Goods.


19. WARRANTY



19.1 The Seller will at its sole option repair or replace (subject to 19.4 of this clause) free of charge any goods or parts thereof, being of the Seller's own manufacture, which are found to be defective by reason of faulty material or workmanship, within 12 months of delivery to the Buyer provided that:
19.1.1 The Buyer gives written notice to the Seller of the alleged defect within 14 days of the defect becoming apparent, or if the defect is not readily apparent, within 14 days of the date when the defect ought to have become apparent to the Buyer; and

19.1.2 The Buyer returns the defective Goods or part thereof to the Seller at the Buyer's expense. 
19.2 The warranty contained in Clause 19.1 shall not apply: 
19.2.1 To Goods not manufactured by the Seller; 
19.2.2 To Goods altered or repaired by any person other than the seller so as in the Seller's sole judgement to adversely affect the goods,
19.2.3 To Goods which have been subject to excessive wear and tear to improper or abnormal operation, use or storage; 
19.2.4 With respect to goods or parts thereof not manufactured by the Seller the obligations of the Seller in those cases shall not extend beyond the terms of the written warranty given to the Seller (if any) by the manufacturer or supplier of such Goods or parts; 
19.4 If in any case, the Seller determines in its sole discretion that the nature of the defect precludes remedy by way of repair or replacement of the Goods or part thereof the Seller reserves the right to satisfy its warranty obligation in full by refunding the purchase price of the Goods but in no event shall the Seller's liability under this warranty exceed the purchase price for the Goods or part thereof.
19.5 The Seller gives no warranty expressly or impliedly as to description, quality, fitness for any particular purpose or any other feature of the Goods and all such warranties and any other warranties whether expressed or implied by law or otherwise are excluded from these Conditions and any contract arising from acceptance of a Quotation


20. CONSEQUENTIAL LOSS



Subject to anything expressly to the contrary in this contract, the Seller, its directors, officers, agents and employees shall not be liable for any liabilities, claims, demands, actions, suits, proceedings, damages, losses (including consequential financial or economic loss) costs and expenses suffered or incurred by the Buyer in any manner whatsoever whether in contract, tort to equity in respect of or arising out of or in any way connected with a purchase of Goods as contemplated by this contract.

21. INSTALLATION



21.1 Unless otherwise stated in a Quotation no provision is made for erection, installation or commissioning of any Goods

21.2 Where provision is made in a Quotation for installation of Goods, the following conditions shall apply:

21.2.1  Lock-up facilities shall be provided free of cost by the Buyer for the safe storage of clothing, tools and effects belonging to the Seller's employees or licensees;
21.2.2 The Buyer shall provide at its expenses and risk, such skilled and unskilled workmen to assist the Seller's employees as the Seller may from time to time request;
21.2.3 The time of completion and prices quoted for any installation are subject to suitable foundations, buildings, scaffolding, water, steam, power, lighting facilities and all other services being ready and free for the Seller's uninterrupted use in good time and to satisfactory and continuous means of access to the site with clear passage for all vehicles and materials being provided by the Buyer together with adequate protection for all materials from the time of delivery on-site.


22. SALES TAX, GOODS AND SERVICES TAX AND CUSTOMS DUTY



A Quotation is exclusive of sales tax, goods and services tax and customs duty. It is also exclusive of any other cost to the Seller resulting from legislation or regulation which may be brought into force after the submission of a Quotation or during the currency of any contract arising from acceptance of it and any such added cost to the Seller will be chargeable to the Buyer's account in addition to the price quoted.

23. IMPORT CONTROL



In the event of any contract relating to the sale for the manufacture of Goods requiring importation into New Zealand of any Goods, then the contract is conditional upon the grant of the necessary licence to import such Goods or parts thereof. If import licences are supplied by the Buyer, the Buyer shall make good to the Seller any loss, damage or expenditure which the Seller may suffer or incur as a result of any postponement, revocation or refusal to renew such licences.


24. PATENTS



24.1 The Buyer warrants that any design or instruction furnished or given by it shall not be such as will cause the Seller to infringe any letters patent, registered design, trademark, copyright or other intellectual property right in the performance of the contract.
24.2 Nothing in this contract shall be construed as a transfer or assignment of any patent, trademark, design, or copyright to other intellectual property right covering the Goods and all such rights are expressly reserved to the true owners thereof.


25. FORCE MAJEURE



The Seller shall not be liable for failure to perform or complete any of its obligations hereunder due to any causes beyond the reasonable control of the Seller including but without limiting the generality of the foregoing, prohibition or restriction on importing, refusal to issue import licence, governmental direction, strike, lockout, refusal to load, unload or handle Goods, labour disputes, fire, flood, typhoon, tidal wave, landslide, lightning, explosion, Act of God, war, riot or civil commotion.


26. LEGAL CONSTRUCTION



This contract shall in all respects be construed in accordance with and be governed by the laws of New Zealand. The Seller shall be entitled to enforce this contract and exercise its remedies arising from this contract in a New Zealand court nearest the Sellers Registered Office. This contract is deemed to have been entered into in Palmerston North.


27. ARBITRATION



If at any time any question, dispute or difference shall arise between the Seller and the Buyer upon, in relation to, or in connection with this contract or any contract arising from a Quotation either party may give to the other, notice in writing of the existence of such question, dispute or difference and the same shall thereupon be referred to the arbitration in New Zealand or a person to be mutually agreed upon, or failing agreement within 30 days of the receipt of such notice of some person appointed on the application of either party by the President of the New Zealand Institution of Engineers. The submission shall be deemed to be a submission to arbitration within the meaning of the terms of the Arbitration Act 1908 and any amendment thereof.


28. GUARANTOR



The Guarantor irrevocably and unconditionally in all circumstances without exception guarantees payment by the Buyer of all amounts due by the Buyer to the Seller and unconditionally and irrevocably and in all circumstances indemnifies the Seller from any loss, cost, or expense incurred by the Seller as a consequence of any default on behalf of the Buyer or the Guarantor pursuant to this contract.


29. SECURITY INTEREST AND PPSA




29.1 The Buyer agrees to do anything that the Seller reasonably requires to ensure that the Seller has a perfected security interest in all the goods and in the Buyers' interest and after acquired property, and a purchase money security interest in each part of the goods to the extent of the purchase price for that part.
29.2 The Seller may allocate amounts received from the Buyer in any manner it determines, including any manner required to preserve any purchase money security interest it has in any goods.
29.3 The Buyer agrees that nothing in Sections 114(1)(a), 133 and 134 of the Personal Property Securities Act 1999 shall apply to this contract for the security under this contract and waives the Buyer's rights under Sections 121, 125, 129, 131 and 132 of the Personal Property Securities Act 1999.
29.4 The Buyer acknowledges receipt of a copy of these conditions and waives any right it may have to receive from the Seller a copy of any financing statement, financing change statement or verification statement that is registered, issued, or received at any time in relation to these conditions.