APPLICABLE TERMS AND ACCEPTANCE OF ORDER
These Terms and Conditions of Trade between SMITH ELEMENTS AND CONTROLS LIMITED (the "Company") and the customer (the "Buyer") shall apply to all orders for the supply of domestic, industrial, commercial and water heating elements, electronic controllers and thermostats, venting systems, stove elements, simmerstats and spares, parts, tools and materials (“Goods”) accepted by the Company from the Buyer and that these terms and conditions shall prevail and take precedence over any document or oral message from the Buyer. Where the Company fails to enforce any terms or conditions under this contract the Company will not be deemed to have waived these rights with respect to any term or condition or right. The Company shall confirm the price of Goods in its price list or as a quotation and the Buyer shall confirm acceptance of the price or quotation by signing the quotation or providing an order. Where no price is stated the price shall be the price ruling at the time of delivery. Orders up to one hundred dollars ($100) value will be freight free otherwise freight will be charged by the Company. The Company may change prices by applying the price of the original manufacturer and (where possible) giving thirty (30) days’ notice. The quotation or price may be increased if the Company suffers any cost increases which are beyond its control in the supply, production and delivery of Goods (including increases in import costs and changes in taxation or currency) between the date of contract (or, where the contract arises from a quotation the date of the quotation) and the date of delivery, where the Company can supply written evidence of such cost increases or if the Buyer varies or alters its requirements for the Goods. Variations and alterations may result from changes to instructions from the Buyer requiring a changed basis for the cost of Goods OR additional parts or materials. Any variations regarding price or supply to that agreed in the quotation or order that may be agreed between the parties during the period of supply shall be in writing and take precedence over that part of the quotation or order so affected. No quotation shall constitute an offer unless signed by the Company and the Company may withdraw any quotation before the Buyer's signed acceptance. The quotation price will be exclusive of GST and shall be valid for a period of thirty (30) days. Freight, insurance, and other handling charges shall be the responsibility of the Buyer.
No cancellation for Make to Order Goods
Upon notification in the Company quotation and invoice to the Buyer for Goods that are designed or procured specifically for the Buyer (meaning nonstandard or indented to order) cannot be cancelled without the Buyer paying the full cost of the procurement of the Goods to the time of cancellation.
Payment
Payment shall be made according to the terms stated in the Company invoice or terms of the Buyer order or confirmed in the quotation by the 30th of the month following date of invoice. The Buyer shall make payment of all amounts due to the Company without any delay or deduction whether by way of set-off or counterclaim even under dispute of the invoice. The Buyer shall agree that the Company has sole discretion to apply payments from the Buyer to any transaction or Company invoice notwithstanding that the Buyer may have applied the payment to a particular transaction or invoice.
Interest for Late Payment
The Company may charge the Buyer interest on any monies outstanding under this contract on a daily basis at a rate equal to 5% above the Company's bank indicator lending rate. Interest is payable from the date payment was due until the date the Company receives payment. The Company's right to charge interest is without prejudice to the Company's other rights or remedies for the Buyer's default in failing to pay on the due date.
Suspension of Contract for Non-Payment
If at any time the Company reasonably deems the credit of the Buyer to be unsatisfactory, it will require the Buyer to provide at the Buyer's cost, security for payment and/or the Company may suspend performance of its obligations including suspension of the supply of Goods under this contract. The Company may secure any or all Goods previously supplied by the Company and in possession of the Buyer under the Retention of Title clause to the value of the outstanding amount owed until payment is made in full OR until security is provided to the Company's satisfaction and the Company may require the Buyer to pay all costs incurred as a result of suspension and re-commencement of supply including debt collection and legal costs.
Delivery
The Buyer shall agree that risk in the Goods shall pass to the Buyer once the Goods are delivered. Delivery by the Company carrier to the premises of the Buyer shall constitute delivery and the Buyer shall agree that risk in the Goods shall pass to the Buyer once the Goods are delivered. The Buyer agrees to be responsible for the validity of the person accepting the Goods on behalf of the Buyer at the time of delivery. Goods that are finished items but only part of an order may be delivered in instalments at the Company's discretion and in such case each delivery will be regarded as a separate contract and any Goods delivered shall be paid by the Buyer in accordance with the terms of payment. The Company will make every effort to ensure delivery of Goods and Services on time but will not be liable for any loss or damage or consequential loss to the Buyer arising from delays in delivery.
Risk, Ownership, Retention of Title and Repossession
Risk of any loss, damage or deterioration of or to the Goods shall be borne by the Buyer from the time of delivery of the Goods into the Buyer's care and control and the Buyer shall properly insure the Goods from theft, fire or loss damage. Where the Buyer fails to insure the Goods upon delivery and suffers loss or damage to the Goods, and where the Goods remain unpaid, the Buyer shall agree to pay the Company for the full cost of the Goods. The Buyer agrees that the Company has legal and equitable right to title in all and any Goods supplied that remain unpaid and ownership shall only pass to the Buyer when the contract price is paid. For as long as ownership in the Goods is retained by the Company the Buyer may use the Goods in such a way that they are identifiable as the property of the Company. If the Goods, the subject of this contract, have become the constituent of mixed with or attached to any other goods or property of the Buyer, then a proportion of the value of those goods or property to the value of the Company’s Goods shall belong to the Company. Where the Goods remain unpaid the Buyer hereby irrevocably gives the Company, its agents or servants, the free and uninterrupted right to enter its premises during normal business hours in accordance with the Credit (repossession) Act, to search for, inspect and remove any of the Goods supplied in which the Company has retained ownership and the Buyer will not hold the Company responsible for any economic or consequential loss that the Buyer may suffer as a result of the Goods being removed or dismantled from the property of the Buyer. The Company may resell possessed Goods and credit the Buyer with the proceeds of sale (less depreciation, wear and tear) and the Buyer will still be liable for any outstanding monies.
Title upon Sale to a Third Party
Notwithstanding that property in the Goods is retained by the Company, the Buyer is hereby authorised to sell the Goods in the ordinary course of business and to deal with such proceeds as fiduciary agent and bailee of the Company until the Buyer pays the Company in full without deduction or setoff. Such authority may be revoked by written notice at any time if the Company deems the credit of the Buyer to be unsatisfactory or if the Buyer is in default of its obligations under the Contract or any other contract between the Company and the Buyer. Where any Goods in respect of which title has not passed to the Buyer are sold by the Buyer pursuant to the authority granted, any book debt created upon sale of such Goods and the proceeds of sale of such Goods when received by the Buyer shall be held upon trust by the Buyer for the Company. Proceeds of sale so received by the Buyer shall be placed in a separate bank account held as a separate fund in trust for the Company and shall first be applied towards the satisfaction of all indebtedness of the Buyer to the Company.
Company Warranty & Liability
The description given of the Goods in any of its publications or packaging or technical advice provided by any Company staff has been given by way of identification only to assist the Customer in making an offer to the Company and the use of such information does not constitute the description as binding on the Company. Goods may not correspond precisely with published dimensions and specifications and reasonable tolerances apply. The Buyer agrees to be responsible for the fitness of the Goods for the purposes required by the Buyer and the Company shall not be responsible and the warranty will not apply to Goods where the Buyer fails to ascertain the correctness of the Goods for purposes intended by the Buyer. The Company's liability in respect of any claim shall relate only to specific defects in the Goods arising from faulty manufacture or from damage proven to occur before delivery by the Company. The warranty of the Goods shall be the warranty of the original manufacturer or where this is not available the warranty on Goods shall be twelve (12) months from the date of delivery to the Buyer. Where the Company accepts liability for damage or defect under its warranty and elects to repair or replace Goods it shall repair or replace the Goods to their original condition (excluding the cost of labour, travel and mileage disbursements) but where this cannot be done the Company will refund the purchase price in full. The Company shall not be liable for any loss of profits or any consequential, indirect or special loss, damage or injury of any kind whatsoever suffered by the Buyer or any other person arising directly or indirectly from any breach of any of the Company's obligations arising under or in connection with the contract including delays in the delivery of Goods or from any cancellation of the contract or from any negligence, misrepresentation or other act or omission on the part of the Company, its servants, agents or contractors. The Company shall not be liable for any breach or failure to perform any of its obligations under this contract where such breach or failure is caused by war, civil commotion, hostilities, strike or lockout, act of God, fire, governmental regulations or directions, or any other cause force majeure beyond the Company's reasonable control. The occurrence of such an event shall not give the Buyer a right of cancellation of the contract.
Claims for Defective Goods or Services, Discrepancies and Shortages
The Company may, at its discretion, repair or replace any damaged or defective Goods provided that the Buyer advises the Company of the claim within seven (7) days of the defect occurring together with a claim specifically identifying the damage or defect(s); and provided that the Buyer does not continue to use the Goods once the defect is known. Discrepancies and shortages must be notified to the Company with seven (7) days of delivery.
When Claims will not be considered
The Company's liability in respect of any claim shall relate only to specific manufacturing defects in the Goods. The Buyer agrees that the Company will not consider claims from the Buyer in respect of Goods which: (i) are not intact and in original condition subject to normal wear and tear. (ii) have been improperly stored and suffered damage (iii) have been used for other than purposes specified in Company publications or packaging (iv) have not been maintained according to information in Company publications or packaging (v) have been incorrectly installed or not installed by a registered electrician or plumber (vi) have been altered from the condition in which they were supplied or repaired by persons other than the Company If the Buyer does not comply with the above requirements for warranty and claims the Buyer will be deemed to have accepted the Goods and the Company will not incur any liability whatsoever in relation to the Goods.
Claims for Goods Incorrectly Ordered
The Company reserves the right to allow claims for Goods that are incorrectly ordered by the Buyer (provided that they are not made to order) by retaining fifteen per cent (15%) of the invoice price as an administrative charge and handling fee. Claims for Goods incorrectly ordered will not be recognised by the Company unless the Goods are in original condition and unless the Buyer advises the Company within seven (7) days of delivery.
Consumer Guarantees Act 1993
Nothing in these terms is intended to have the effect of contracting out of the provisions of the Consumer Guarantees Act 1993 except to the extent permitted by that Act where the Buyer acquires the Goods in a business situation for the business purposes of a business and all provisions of these terms shall be read as modified to the extent necessary to give effect to that intention.
Dispute and Arbitration
In the event of any dispute between the Company and the Buyer arising out of this Contract, the Buyer agrees to pay the undisputed part of the outstanding monies owed and such dispute shall be referred to a Mediator to be agreed between the parties and the costs shall be equally shared and upon failure to agree to the outcomes of mediation the dispute shall be referred to an Arbitrator and arbitration conducted in accordance with the Arbitration Act 1996 and any amendments thereof.
Guarantor(s)
Where the Buyer is a company or partnership or trust the person(s) referred to as guarantor(s) in the Credit Application forming part of this contract shall personally jointly and severally guarantee the obligations of the Buyer to pay outstanding monies to the Company and to indemnify the Company against non-payment by the Buyer. Any personal liability of a signatory hereto shall not exclude the Buyer from liability and obligations of this contract
Upon signing the Company Credit Application OR signing acceptance of a Company quotation OR providing an order to the Company, the Buyer agrees that these Terms and Conditions of Trade shall apply.
