Trade Depot, Onehunga

TERMS AND CONDITIONS OF SALE

The following terms shall apply to all Goods and to the extent applicable, any services supplied to the Customer by the Company.

1. PRICE/ORDERS/QUOTES

1.1 The price shall be increased by the amount of any GST and other taxes and duties (if any) which may be applicable, expect to the extent that such taxes are expressly included in any quotation given by the Company. The price may increase by the amount of any increase or decrease in the cost of any items (including any changes in currency exchange rates) affecting the cost of supply, production and/or delivery of Goods between the date of the Company acceptance of the Customers order and the date of delivery.

1.2 Quotes will not be valid unless in writing. The Company may alter or withdraw a quote at any time before it receives the Customer's written acceptance of the quote. Unless otherwise specified in writing, quotes will expire after 30 days

1.3 The Price may be increased by the amount of any costs incurred by the Company as a result of the method of payment used by the Customer, including without limitation, any credit card transaction costs.

1.4 The Customer is bound to pay the price from the time that the Company accepts the Customers order; such acceptance is to be in writing. Each accepted order shall, subject to clause 3.2, constitute a separate contract. A quotation does not give rise to a binding contract until the Customer places an order which is subsequently accepted by the Company.

1.5 If the Customer cancels an order, the Company is entitled to charge the Customer for all costs and expenses reasonably incurred by the Company in fulfilling the order until the date the order is cancelled in accordance with this clause.

2. PAYMENT

2.1 Unless the Company agrees otherwise in writing, all Goods must be paid for in full at the time of Despatch pursuant to clause 3 of these terms. If the Company grants credit to the Customer, then the Customer must pay for all Goods supplied within 7 days following Despatch of the relevant Goods under clause 3.1.

2.2 The Customer will pay all GST payable on all amounts payable for the Goods as specified in the Company's tax invoice.

2.3 The Customer will make all payments to the Company in full either by cash, cheque or electronic funds transfer to a bank account nominated by the Company. Any other payment arrangements are at

the Company’s discretion and must be agreed by the Company in writing.

2.4 The Company may, at its discretion, impose a credit limit on the Customer and alter the credit limit from time to time without notice to the Customer. Where the credit limit is exceeded by the Customer at any time, the Company reserves the right to refuse the supply of any further Goods to the Customer (without prejudice to any other rights or remedies available to the Company).

2.5 The Customer will make all payments due to the Company free of any counterclaim, set-off, deduction or other claim whatsoever unless otherwise agreed in writing by the Company.

3. DELIVERY/DESPATCH

3.1 Delivery shall be made at the Company premises and shall take place at the time when the Goods are made available for despatch at the Company premises. If at the Customers request, the Company subsequently arranges transportation, storage or insurance of the Goods, the Company does this as the Customers Agent. The Customer shall indemnify the Company for any liability or cost incurred by the Company in providing this service, and shall pay the Company the amount such liability, or cost immediately upon receiving notice from the Company of such amount (except where the parties agree in writing that the Company is liable for such costs).

3.2 If the Customer fails to accept or take delivery of the Goods at the time of Dispatch (or any time of delivery to the Customer arranged by the Company under clause 3.1) the Goods will be invoiced to the Customer at the date of Dispatch and the Customer will pay the reasonable storage costs and any other additional costs incurred by the Company consequent on the Customer not taking the delivery.

3.3 The Company may Despatch (and where applicable, deliver) the Goods by instalments, and each instalment shall be treated as a separate contract of supply under these terms.

3.4 If the Company fails to Despatch or makes defective or late Despatch of the Goods (or any part of them), this does not entitle the Customer to cancel any order for the Goods (or any part of any order).

3.5 Any time stated for Despatch (and where applicable delivery) under clause 3.1 is an estimate only. The Company is not liable in any circumstances for any delay in Despatch or delivery.

4. RISK AND OWNERSHIP

4.1 Risk of any loss of, damage or deterioration of or to Goods passes to the Customer on Despatch.

4.2 Ownership of the Goods remains with the Company and does not pass to the Customer until the Customer pays the Company in full all Amounts Owing and any other moneys owing by the Customer to the Company from time to time.

4.3 While ownership of the Goods remains with the Company the Customer must store them separately and clearly identify them as belonging to the Company.

4.4 If the Customer commits an Event of Default or the Goods are otherwise "at risk" within the meaning of the PPSA, then without limiting any other provision in these terms, the Company may repossess and sell the Goods (subject to these terms and the PPSA ) and where reasonably necessary for such purpose, may enter the premises where the Goods are located and remove them. TheCompany will have no liability to the Customer or any third party in relation to the repossession and/or removal of the Goods pursuant to this clause 4.4 and the Customer will indemnify the Company against any claims, actions or costs that may arise as a result.

4.4 The Customer must advise the Company in writing immediately of the occurrence of any Event of Default or any action by third parties (including any of the Customer's creditors) affecting the Company’s interest in the Goods.

4.5 The Company may apply any payments received from or on behalf of the Customer in reduction of the Customer’s indebtedness to the Company as the Company thinks fit.

5 SECURTY INTEREST/PPSA

5.1 The Customer agrees that these terms create a Security Interest in all Goods supplied by the Company to the Customer from time to time (and the proceeds of sale from all Goods), as security for:

1. 1. the due payment of all indebtedness of the Customer to the Company (including without limitation the Customer's obligation to pay the Company the Price of Goods supplied to the Customer by the Company); and
   2. the due performance and observance by the Customer of all the Customer's obligations to the Company (including, without limitation, the Customer's obligations under these terms).

5.2 The Customer agrees to do all things and execute or arrange for execution of all documents as the Company may reasonably require to ensure that the Company acquires a perfected first ranking Security Interest in the Goods (and all proceeds of sale of all Goods) under the PPSA.

5.3 The Customer waives its right to receive a copy of any verification statement(s) under the PPSA and agrees that as between the Company and the Customer, the Customer will have no rights under (or by reference to) sections 114(1)(a), 116, 117(1)(c), 119, 120(2), 121,125, 127, 129, 131, 132, 133 and 134 of the PPSA.

5.4 The Customer agrees that where the Company has rights in addition to those in Part 9 of the PPSA, those rights will continue to apply, and in particular, will not be limited by section 109 of the PPSA.

5.5 The Customer will indemnify the Company for any costs the Company incurs in registering, maintaining, discharging and/or enforcing the Security Interest created by these terms and conditions.

5.6 The Customer will immediately notify the Company in writing of any change in the Company’s name.

6 REPRESENTATIONS, WARRANTIES AND DEFECTS

6.1 If the Goods are acquired by the Customer for business purposes, the Customer agrees that the Consumer Guarantees Act 1993 does not apply in respect of the Goods.

6.2 Where the Customer on-supplies the Goods to a person acquiring them for business purposes, it must be a term of the Customer’s contract with that person that the Consumer Guarantees Act 1993 does not apply in respect of the Goods.

6.3 Except as stated in these terms or as otherwise required by law:

1. 1. If the Customer claims that any Goods are non-conforming or defective in any way the Customer must notify the Company in writing of the claim within seven (7) days following Despatch and give the Company the opportunity to inspect the Goods;

   2. if the Customer has complied with clause 6.3(a) above and the Company's investigation shows (in the Company's reasonable opinion) that the Goods are defective or do not comply with the relevant order then the Company will (at it’s option) either repair, replace or refund the invoiced price for the relevant Goods. The Company may, at its discretion, delay any such repair, replacement of, or refund of the invoiced price of, any such Goods for so long as the Customer is in default under these terms;

   3. and unless specifically provided to the Customer in a written guarantee or warranty, the Company does not give any representation, condition, guarantee or warranty in relation to the Goods (Warranties) and to the maximum extent permitted by law all such Warranties are excluded.

6.4 Except as stated otherwise in the terms and to the extent permitted by law, the Company has no liability to the Customer or any other person in respect of any Claim by the Customer or any other person (in contract, tort or otherwise), including without limitation any Claim relating to or arising from:

1. 1. any Goods which after Despatch are incorrectly stored, handled or used or subject to improper use, neglect or accident;
   2. any conditions, warranties, descriptions, representations, conditions as to fitness or suitability for purpose, tolerance to any conditions, merchantability or otherwise, whether express or implied by law, trade custom or otherwise; or
   3. any representations, warranties, conditions or agreement made by any agent or representative, or by the Customer, which are not provided by the Company in writing.

6.5 The Customer agrees to indemnify the Company upon demand against any liability, cost or expense incurred by the Company as a result of any breach by the Customer of any of its obligations pursuant to these terms.

7 DEFAULT

7.1 If an Event of Default occurs, then without prejudice to any other rights or remedies the Company may have, the Company may:

1. 1. Cancel all or any part of any outstanding orders placed by the Customer;
   2. Suspend any further supplies of Goods to the Customer until the Event of Default is remedied;
   3. Declare that all amounts invoiced to the Customer are immediately due and payable;
   4. Revoke any discounts offered to the Customer for any period thought fit by the Company;
   5. Recover from the Customer on demand all debt collection and legal costs and expenses that the Company may incur on a solicitor/client basis in connection with enforcing or attempting to enforce these terms and collecting or attempting to collect any other monies owing by the Customer to the Company from time to time; and
   6. The Company may charge the Customer a penalty of 2.5% per month calculated on a daily basis on the unpaid portion of the amount owing from the due date until the payment is received in full.

7.2 Notwithstanding clauses 2.4 and 7.1. if at any time the Company considers (acting reasonably) that the Customer's credit is unsatisfactory, the Company may require payment of all further supplies of goods to be made in cash on or before despatch.

7.3 The Customer also agrees that the Company shall have the right and liberty to complete and have registered a Mortgage over any property owned by the Customer to secure monies owed to the Company by the Customer and the Company shall also have the right at its discretion to place a caveat on any such property for the purpose of this provision and the Customer hereby irrevocably appoints the Company as the attorney of the Customer for the purpose of executing such mortgage.

8 PAYMENT VALIDITY

8.1 The Customer acknowledges that the Company continues to supply the Customer on condition that all payments received by the Company from the Customer are valid and made in the ordinary course of the Customer’s business.

8.2 The Customer further acknowledges that the Company receives all payments in the ordinary course of the Customer’s business, in good faith and in the reasonably held belief as to the validity of
those payments unless and until the Customer gives notice in writing to the Company;

1. 1. of the Customer’s then inability to pay its due debts; or
   2. that the Customer’s intention or purpose in making any such payment is to enable the Company to receive more towards satisfaction of its debt than it would otherwise have received or have been likely to have received in any liquidation of the Customer, and until receipt of such notice, the Company shall be entitled to assume that all payments received from the Customer are made in the ordinary course of the Customer’s business.

9 FORCE MAJEURE

9.1 Without limiting any other provisions of these standard terms and conditions of sale, neither the Company nor the Customer shall be liable for any delay or failure in the performance of any obligation or the exercise of any right under these standard terms and conditions of sale or for any loss or damage (including indirect or consequential loss or damage) if such performance or exercise is prevented or hindered in whole, or in part by reason of a force majeure event. Nothing in this clause shall excuse payment of the amount owing as it becomes due under these standard terms and conditions of sale.

9.2 The rights and obligations of either party which are affected by a force majeure event shall be suspended during the continuance of the force majeure event, and either party claiming to be affected by the force majeure event shall give immediate notice to the other party containing full particulars of the force majeure event and either party under this clause shall take all reasonable steps to mitigate the effects of the force majeure event and remove such force majeure event provided that neither party shall be required to remove any such force majeure event if to do so would require it contrary to its judgement to settle a strike or labour dispute, or otherwise submit to the demands of opposing parties.

11 OTHER AGREEMENTS or TERMS

11.1 These terms and conditions will prevail over any purchase terms. The Customer's placement of an order for Goods will be deemed acceptance of these terms and conditions by the Customer. If the Customer places an order (whether in writing, verbally, or by Electronic Data Interchange (EDI) on terms inconsistent with these terms and conditions, then Despatch of the Goods by the Company under clause 3.1 pursuant to that order will be deemed to be a counter offer and the Customer's acceptance of the Goods Despatched will constitute acceptance of these terms and conditions in place of the terms in the Customer's order.

11.2 Notwithstanding clause 11.1, if the Company and the Customer agree in writing to enter into a credit arrangement on terms other than those detailed in clause 2.1 (“alternative credit arrangement”), then, to the extent the alternative credit arrangement is inconsistent with these terms and conditions, the alternative credit arrangement prevails.

12 WAIVER

12.1 If the Company delays exercising or fails to exercise any right or remedy available to it under these terms, this shall not limit or waive the Company’s right to subsequently exercise that or any other right or remedy available to the Company or to subsequently require strict compliance with these terms. To be effective, any waiver of any term of these terms must be recorded in writing and signed by an authorised officer of the Company.

13 DIMENSIONS, PLANS AND SPECIFICATIONS

13.1 All customary building industry tolerances shall apply to the dimensions and measurements of Goods unless the Company and the Customer agree otherwise in writing.

13.2 The Company shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer.

13.3 If the giving of an estimate or quotation for the supply of Goods involves the Company estimating measurements and quantities, it shall be the responsibility of the Customer to verify the accuracy of such estimate(s) before accepting any such quotation under these terms or placing any order based on such estimate(s).

13.4 Should the Customer require any changes to the Company’s estimated measurements and quantities, the Customer shall request such changes in writing, in the case of an estimate, before placing an order based on that estimate, and in the case of a quotation, before the Customer's acceptance of that quotation.

13.5 Where the Customer requests changes to be made to estimated quantities or measurements after the Company has accepted the Customer’s order in writing, the Company will be entitled to adjust the price of the Goods to take into account the requested changes and to reschedule any estimated Despatch date.

14 PRODUCT RETURNS

14.1 Except as provided in these terms, Goods may not be returned without the Company's consent. Where the Company at its discretion allows the Customer to return Goods, the Company reserves the right to charge the Customer a return fee equal to 10% of the invoiced price of such Goods.

14.2 Where a Customer orders any Goods using the Company’s special order form, then, to the extent the special order form is inconsistent with these terms, the special order form prevails provided that the Company has accepted in writing the order contained in the special order form.

15 ASSIGNMENT

15.1 The Company is entitled at any time to assign to any other person all or part of the debt owing by the Customer to the Company.

15.2 The Customer may not assign or transfer any of its rights or obligations under these terms (or any contract formed subject to these terms) without the Company's prior written consent.

16 REVIEW OF TERMS

16.1 The Company reserves the right to amend these terms at any time and from time to time on written notice to the Customer and the modified terms will apply to all orders and supplies of Goods after such notice is given (or the date specified in such notice). No other changes may be made to these terms without the Company's written consent.

17 TRUSTEE LIABILITY

17.1 If the Customer is a trust, and that trust has a professional trustee or trustees, then the liability of the professional trustee(s) shall be limited to the assets of the relevant trust. However, this clause 17.1 shall not limit or affect the liability of a professional trustee who has guaranteed the Customer’s obligations under these terms in his or her personal capacity.

18 WORDS USED IN THESE TERMS

18.1 “Company” means Trade Depot including its successors and assigns.
18.2 “Amounts Owing” means the Price charged by the Company for the Goods, and any other sums which the Company is entitled to charge under these terms. 18.3 “Claim” includes any claim;

1. 1. for damages of any kind, including, but not limited to damages for breach of contract;
   2. for loss of profits; or
   3. for any consequential, indirect or special loss, damage or injury of any kind suffered by the Customer or any other person arising directly or indirectly from:
      1. any breach of the Company’s obligations under these terms; or
      2. any cancellation of any order; or
      3. any negligence, misrepresentation or other act or omission by the Company, or its employees, agents or contractors’; or
   4. for compensation, demand, remedy, liability or action.

18.4 “Customer” means the person, company or other entity which orders or requests the supply of Goods from the Company (and includes that Customer's successors and permitted assigns). If any Customer comprises more than one person, each person will be jointly and severally liable for the obligation of the Customer under these terms. 18.5 An “Event of Default” means an event where:

1. 1. the Customer fails to comply with these terms or any other contract with the Company; or
   2. the Customer commits an act of bankruptcy; or
   3. the Customer enters into any composition or arrangement with all or any of its creditors; or
   4. if the Customer is a company;
      1. the Customer does anything which would make it liable to be put into liquidation; or
      2. a resolution is passed or an application is made for the liquidation of the Customer;
      3. a receiver or statutory or official manager is appointed over all or any of the Customer’s assets; or
      4. the Customer is placed into voluntary administration.

18.6 Despatch has the meaning set out in clause 3.1.

18.7 “Force Majeure Event” means any event or circumstance which is beyond the reasonable control of the affected party, provided that lack of funds shall not be interpreted as a cause beyond the reasonable control of either party.

18.8 “Goods” means all hardware, building products and related goods ordered by the Customer and supplied by the Company from time to time (as detailed on the relevant invoice issued to the Customer) and includes any services forming part of the supply of such goods and all other proceeds of the collateral including money, consumer goods, equipment, motor vehicles, chattels, intangibles, negotiable instruments, documents of title and investment securities.

18.9 “Person” includes a corporation, association, firm, company, partnership or individual.

18.10 “Price” means the purchase price of the Goods and any costs payable by the Customer under clauses 1 and 3.1 of these terms.

18.11 “PPSA” means the Personal Property Securities Act 1999.

18.12 “Security Interest” means a security interest as defined in the PPSA.

18.13 References to the PPSA, the Consumer Guarantees Act 1993, and the Privacy Act 1993 include such legislation from time to time amended, re-enacted or substituted and any statutory instruments, for compensation, demand, remedy, liability or action. regulations and orders issued under such legislation.