Terms and Conditions of Trade | Fusion Fabrication Limited
1.1 ‘Supplier’ shall mean Fusion Fabrication Limited and its successors and assigns or any person acting on behalf of with the authority of Fusion Fabrication Limited.
1.2 ‘Services’ shall mean all services supplied by the Supplier to the Customer and includes any advice or recommendations.
1.3 ‘Customer’ shall mean the Customer or any person acting on behalf of and with the authority of the Customer.
1.4 ‘Price’ shall means the price payable for the Goods as agreed between the Supplier and Customer in accordance with clause 4. of this contract.
1.5 ‘Goods’ shall have the same meaning as in section 2 of the Sale of Goods Act 1908 and are Goods supplied by the Supplier to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined).
2.1 Any instructions received by the Supplier from the Customer for the supply of Goods and/or Services the Customer’s acceptance of Goods supplied by the Supplier shall constitute acceptance of the terms and conditions contained herein.
2.2 If more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the Fusion Fabrication Limited Directors.
2.4 None of the Supplier’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Supplier in writing nor is the Supplier bound by any such unauthorised statements.
3.1 The Goods and/or Services are as described on the invoices, estimate, quotation, work authorisation or any other work commencement forms as provided by the Supplier to the Customer.
4. Price and Payment
4.1 At Supplier’s sole discretion the Price shall be either;
(a) as indicated on invoices provided by Supplier to the Customer in respect of Goods supplied; or
(b) Supplier’s quoted Price (subject to clause 4.4) which shall be binding upon the Supplier provided that the Customer shall accept in writing the Supplier’s quotation within thirty (30) days.
4.2 All prices are in NZD and are the total price for the Goods and/or Services exclusive of any relevant goods and services tax or other sales taxes, packaging and freight.
4.3 Prices may change at the Suppliers discretion and the Supplier will take reasonable efforts to inform the customer of any pricing change and will advise the correct price at the time an order is placed or a special quote is given.
4.4 Any variation from the plan of scheduled works or specifications will be charged for on the basis of the Supplier’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at the time of completion.
4.5 Supplier may request sole discretion a deposit may be required. The deposit amount or percentage of the Price will be stipulated at the time of the order of the Goods and shall become immediately due and payable.
4.6 Time for payment for the Goods shall be of the essence and will be stated on the invoice, quotation or any other order forms. If no time is stated then payment shall be on delivery of the Goods.
4.7 At the Supplier’s sole discretion, payment for approved Customers shall be made by instalments in accordance with the Supplier’s delivery/payment schedule.
4.8 Supplier reserves the right to request 100% upfront payment prior to commencing work.
4.9 At the Supplier’s sole discretion, payment for approved Customer’s shall be due twenty (20) days following the end of the month in which a statement is emailed to the Customer’s email address. (Credit trade terms are available only to approved customers upon application to, and the approval of an account by the Supplier.)
4.10 Payment will be made by cash, by bank cheque, or by direct credit.
4.11 In the event that payments are not made by the due date Supplier may, at its discretion, suspend the completion of any further Goods/services for the Customer. Any expenses incurred by Supplier in recovering any outstanding monies, including debt collection agency fees and legal fees (on a solicitor client basis), shall be recoverable from the customer. Penalty interest will accrue on overdue amounts at 2% per month).
5. Completion and Delivery Of Goods
5.1 The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery, or delivery of the Goods shall be made to the Customer from Supplier’s address.
5.2 The Supplier may deliver the Goods/services by separate instalments, if so, each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.3 Any time or date given by the Supplier to the Customer is an estimate only. The Customer must still accept delivery of the Goods even if late and the Supplier will not be liable for any loss or damage incurred by the Customer as result of the delivery being late. (Supplier will provide Customer with clear ‘estimated’ dates). Some outsourced Goods and/or services may be late which is out of the Suppliers control.
6.1 The Customer; accepting delivery of the Goods, shall be deemed to have unconditionally and irrevocably accepted the Goods as being of merchantable quality.
6.2 If the Supplier retains title to the Goods nonetheless all risk for the Goods passes to the Customer on Delivery.
6.3 If the Customer requests the Supplier to leave Goods at an specific unattended location then such Goods shall be left at the Customer's sole risk.
6.4 If any of the Goods are damaged or destroyed prior to title to them passing to the Customer, the Supplier is entitled, without prejudice to any of its other rights or remedies under these terms and conditions (including the right to receive payment of the balance of the Price of the Goods), to receive all insurance proceeds payable in respect of the Goods. This applies whether or not the Price has become payable under these terms and conditions.
7.1 The Customer shall inspect the Goods on delivery and shall within seven (7) business days of delivery notify the Supplier of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote/estimate. The Customer shall afford the Supplier an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any shortage, defect or damage.
7.2 For defective Goods, which the Supplier has agreed in writing that the Customer is entitled to reject, the Supplier’s liability is limited to either (at the Supplier’s discretion) replacing the Goods or repairing the Goods provided that:
(a) the Customer has complied with the provisions of clause 7.1;
(b) the Supplier will not be liable for Goods which have not been stored or used in a proper manner;
(c) the Goods are returned at the Customer’s cost within fourteen (14) business days of the delivery date;
(d) the Goods are returned in the condition in which they were delivered and with all packaging material and instructional material in as new condition as is reasonably possible in the circumstances.
8.1 Subject to the conditions of the warranty set out in Clause 8.2 the Supplier warrants that if any defect in any workmanship of the Supplier becomes apparent and is reported to the Supplier within three (3) months of the date of delivery (time being of the essence) then the Supplier will either (at the Supplier’s sole discretion repair the defect or remedy the workmanship)
8.2 The conditions applicable to the warranty given by Clause 8.1 are:
The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
Failure on the part of the Customer to properly maintain any Goods; or
Failure on the part of the Customer to follow any instructions or guidelines provided by the Supplier; or
Any use of any Goods otherwise than for any application specified on a quote/estimate or order form; or
The Continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
Fair wear and tear, any accident or act of God; or
(b) The warranty shall cease and the Supplier shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Supplier’s consent.
(c) in respect of all claims the Supplier shall not be liable to compensate the Customer for any delay in either replacing or repairing the workmanship/Goods or in properly assessing the Customer’s claim.
8.3 For Goods not manufactured by the Supplier, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Supplier shall not be bound by nor responsible for any term, condition, representation or warranty given by the manufacturer of the Goods.
8.4 In the case of second hand Goods, the Customer acknowledges that he has had full opportunity to inspect the same and that he accepts the same with all faults and that no warranty if given by the Supplier as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Supplier shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
9.1 It is the intention of the Supplier and agreed by the Customer that the property in the Goods shall not pass until:
(a) The Customer has paid all amounts owing for the particular Goods, and
(b) The Customer has met all other obligations due by the Customer to the Supplier in respect of all contracts between the Supplier and the Customer, and that Goods, or proceeds of the sale of the Goods, shall be kept seperate until the Supplier shall have received payment and all other obligations of the Customer are met.
9.2 Receipt by the Supplier of any form of payment other than cash shall not be deemed payment until that form of payment has been honoured, cleared or recognised and until then the Suppliers ownership of rights in respect of the Goods shall continue.
9.3 It is further agreed that:
(a) until ownership of the Goods passes to the Customer in accordance with clause 9.1 that the Customer is only a bailee of the Goods and must return the Goods to the Supplier on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for the Supplier and must pay to the Supplier the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for the Supplier and must pay or deliver the proceeds to the Supplier on demand.
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Supplier and must sell, dispose of or return the resulting product to the Supplier as it so directs.
(e) the Customer irrevocably authorises the Supplier to enter any premises where the Supplier believes the Goods are kept and recover possession of the Goods.
(f) the Supplier may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Supplier.
(h) the Supplier may commence proceedings to recover the Price notwithstanding that ownership of the Goods has not passed to the Customer.
10. Personal Property Securities Act 1999 (“PPSA”)
10.1 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:
a) These terms and conditions constitute a security agreement for the purposes of the PPSA; and
b) A security interest is taken in all Goods previously supplied by the Supplier to the Customer (if any) and all Goods that will be supplied in the future by the Supplier to the Customer during the continuance of the parties relationship.
10.2 The Customer undertakes to
a) Sign any further documents and/or provide any further information, such information to be complete accurate and up to date in all respects, which the Supplier may reasonably require to register a financing statement or financing change statement on the Personal Property Securities register;
b) Indemnify, and upon demand reimburse, the Supplier for all expenses incurred in;
c) Not register a financing change statement or a change demand without the prior written consent of the Supplier;
d) Give the Suppliers not less than fourteen (14) business days prior written notice of any proposed change in the Customer’s name and or any other change in the Customer’s details (including but not limited to changes in the Customer’s address, or business practice); and
Immediately advise the Supplier of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
10.3 The Supplier and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms and Conditions.
11. Security Interest
11.1 A security interest in favour of the Supplier is created upon each sale between the Customer and the Supplier.
11.2 Notwithstanding anything to the contrary contained herein or any other rights which the Supplier may have however:
(a) Where the Customer is the owner of any reality, land or any other asset capable of being charged the Customer agrees to mortgage and/or charge all of their joint and /or several interest in the said land, reality or any other asset to the Suppliers or the Suppliers nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer acknowledges and agrees that the Supplier (or the Suppliers nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) Should the Supplier elect to proceed in any manner in accordance with this clause and/or its sub-clauses the Customer shall indemnify the Supplier from and against all of the Suppliers costs and disbursements including legal costs on a solicitor and own client basis.
(c) The Customer does hereby irrevocably nominate constitute and appoint the Supplier or the Suppliers nominee as the Customers true and lawful attorney to execute mortgages and charges (whether registerable or not) including such other terms and conditions as the Supplier and/or the Suppliers nominee shall think fit in their absolute discretion against the joint and or several interest of the Customer in any land, reality or asset in favour of the Supplier and in the Customer's name as may be necessary to secure the said Customers obligations and indebtedness to the Supplier and further to do and perform all necessary and other acts including instituting any necessary legal proceeding, and further to execute all or any documents in the Suppliers absolute discretion which may be necessary or advantages to give effect to the provisions of this clause.
12. Intellectual Property
12.1 Where the Supplier has designed or drawn Goods for the Customer, then the copyright in those design drawings shall remain vested in the Supplier, and shall only be used by the Customer at the Supplier’s discretion.
12.2 The Customer warrants that all designs or instructions to the Supplier will not cause the Supplier to infringe any patent, registered design or trademark in the execution of the Customer's order.
13. Accuracy of Customer’s Plans and Measurements
13.1 The Supplier shall be entitled to rely on the accuracy of any plans, and other information provided by the Customer. The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate or limited to information, the Supplier accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans or other information.
13.2 Where the Customer is to supply the the Supplier with any design specifications (included, but not limited to CAD drawings) the Customer shall be responsible for providing accurate data. The Supplier shall not be liable whatsoever for any errors in the Goods that are caused by incorrect, missing or inaccurate data being supplied by the Customer.
14.1 The Supplier may cancel these terms and conditions or cancel delivery of Goods and Services at any time before the Goods are delivered by giving written notice. On giving such notice the Supplier shall promptly repay to the Customer any sums pre-paid in respect of the price of those goods. The Supplier shall not be liable for any loss or damage whatsoever arising from such cancellation.
14.2 At the Supplier’s sole discretion the Customer may cancel delivery of Goods and/or Services. In the event that the Customer cancels delivery of Goods and/or Services the Customer shall be liable for any costs incurred by the Supplier up to the time of cancellation.
15. Privacy Act 1993
15.1 The Customer and the Guarantor/s (if separate to the customer) authorises the Supplier to:
Collect, retain and use any information about the Customer, for the purpose of assessing the Customer’s credit worthiness or marketing, products and services, and;
To disclose information about the Customer, whether collected by the Supplier from the Customer directly or obtained by the Supplier from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.
15.2 The Customer shall have the right to request the Supplier for a copy of the information about the Customer retained by the Supplier and the right to request the Supplier to correct any incorrect information about the Customer held by the Supplier.
16. Consumer Guarantees Act 1993
16.1 This agreement is subject to the provisions of the Consumer Guarantees Act 1993 in all cases except where the Customer is contracting within the terms of trade/business (which cases are specifically excluded).
17.1 If any provision of these Terms and Conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
17.2 All Goods and Services supplied by the Supplier are supplied subject to the laws of New Zealand and the Supplier takes no responsibility for changes in the law that affect the Goods and Services supplied.
17.3 The Supplier shall be under no liability whatsoever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Supplier of these terms and conditions.
17.4 In the event of any breach of this contract by the Supplier the remedies of the Customer shall be limited to damages. Under no circumstances shall the liability of the Supplier exceed the Price of the Goods.
17.5 Neither party shall be liable for any default due to any act of God, terrorism, war, strike, lock out, industrial action, flood, storm or other event beyond the reasonable contract of either party.
17.6 The Customer shall not set off against the price amounts due from the Supplier.
17.7 The Supplier may license or subcontract all or any part of its rights and obligations without the Customer’s consent.
17.8 The Supplier reserves the right to review these terms and conditions any time and from time to time. If, following any such review there is to be change in such terms and conditions that change will take effect from the date on which the Supplier notifies the Customer of such change.
18. New Zealand Law
18.1 These Terms and Conditions are governed by the Laws of New Zealand.