Terms & Conditions of Trade
1.1 "Seller" shall mean Falcon Engineering Ltd and its successors
1.2 "Buyer" shall mean the Buyer or any person acting on behalf of
with the authority of the Buyer.
1.3 "Guarantor" means that person (or persons), or entity that agrees
herein to be liable for the debts of the Buyer on a principal debtor
1.4 "Goods" shall have the same meaning as in section 2 of the Sale
of Goods Act 1908 and are goods supplied by the Seller to the Buyer
(and where the context so permits shall include any supply of Services
as hereinafter defined).
1.5 "Services" shall mean all services supplied by the Seller to the
Buyer and includes any advice or recommendations (and where the context
so permits shall include any supply of Goods as defined above).
1.6 "Price" shall mean the cost of the Goods as agreed between the Seller
and the Buyer subject to clause 4 of this contract.
2.1 Any instructions received by the Seller from the Buyer for the
supply of Goods and/or the Buyer's acceptance of Goods supplied by
the Seller shall constitute acceptance of the terms and conditions
2.2 Where more than one Buyer has entered into this
agreement, the Buyers shall be jointly and severally liable for all
payments of the Price.
2.3 Upon acceptance of these terms and conditions
by the Buyer 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be rescinded in accordance with these terms and conditions or with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 manager of the Seller.
2.4 None of the Seller's agents or representatives are authorised to
make any representations, statements, conditions or agreements not
expressed by the manager of the Seller in writing nor is the Seller
bound by any such unauthorised statements.
2.5 The parties agree that for the purposes of the Construction
Contracts Act 2002 where the Seller is a commercial subcontractor
this contract is not a commercial construction contract or a construction
contract whether for work on a commercial or residential property
and devise liability under this contract shall be in no way limited
by any contract that the Buyer may have entered into with a third
party in relation to the supply of Goods and/or Services to that third
party or the payment by the third party to the Buyer of any monies
whether by progress payments or otherwise.
3. Goods / Services
3.1 The Goods and/or Services are as described on the invoices, quotation,
work authorisation or any other work commencement forms as provided
by the Seller to the Buyer.
4. Price And Payment
4.1 At the Seller's sole discretion the Price shall be either;
(a) as indicated on invoices provided by the Seller to the Buyer
in respect of Goods supplied; or
(b) the Seller's current Price, at the date of delivery of the
Goods, according to the Seller's current Price list; or
(c) Seller's quoted Price (subject to clause 4.2) which shall be binding upon the
Seller provided that the Buyer shall accept in writing the Seller's
quotation within thirty (30) days.
4.2 Any variation from the plan of scheduled works or specifications will
be charged for on the basis of the Seller's quotation and will be shown
as variations on the invoice. Payment for all variations must be made in
full at their time of completion.
4.3 At the Seller's 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
4.4 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.
4.5 The Seller may withhold delivery of the Goods until the Buyer
has paid for them, in which event payment shall be made before the
4.6 At the Seller's sole discretion, payment for approved
Buyers shall be made by instalments in accordance with the Seller's
4.7 At the Seller's sole discretion, payment for approved Buyer's shall
be due twenty (20) days following the end of the month in which a
statement is posted to the Buyer's address or address for notices.
4.8 At the Seller's sole discretion, for certain approved Buyers payment
will be due seven (7) days following the date of the invoice.
4.9 Payment will be made by cash, or by cheque, or by bank cheque,
or by direct credit, or by credit card, or by any other method
as agreed to between the Buyer and the Seller.
4.10 The Price shall be increased by the amount of any GST and other taxes
and duties which may be applicable, except to the extent that such
taxes are expressly included in any quotation given by the Seller.
5. Delivery Of Goods
5.1 Delivery of the Goods shall be made to the Buyer's address.
The Buyer 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 Buyer at the Seller's address.
5.2 Delivery of the Goods to a carrier, either named by the
Buyer or failing such naming to a carrier at the discretion of the
Seller for the purpose of transmission to the Buyer, is deemed to
be a delivery of the Goods to the Buyer.
5.3 The costs of carriage and any insurance which the Buyer reasonably
directs the Seller to incur, shall be reimbursed by the Buyer
(without any set-off or other withholding whatever) and shall be due
on the date for payment of the Price. The carrier shall be
deemed to be the Buyer's agent.
5.4 Where there is no agreement that the Seller shall send the Goods to
the Buyer, delivery to a carrier at limited carrier's risk at the
expense of the Buyer is deemed to be delivery to the Buyer.
5.5 The Seller may deliver the Goods by separate instalments (in accordance
with the agreed delivery schedule). Each separate instalment shall
be invoiced and paid for in accordance with the provisions in this
contract of sale.
5.6 Delivery of the Goods to a third party nominated
by the Buyer is deemed to be delivery to the Buyer for the purposes
of this agreement.
5.7 The Buyer shall take delivery of the Goods
tendered notwithstanding that the quantity so delivered shall be either
greater or less than the quantity purchased provided that;
(a) such discrepancy in quantity shall not exceed 5%, and
(b) the Price shall be adjusted pro rata to the discrepancy.
5.8 The failure of the Seller
to deliver shall not entitle either party to treat this contract as
5.9 The Seller shall not be liable for any loss or damage
whatever due to failure by the Seller to deliver the Goods (or any
of them) promptly or at all.
6.1 If the Seller retains title to the Goods nonetheless all risk for
the Goods passes to the Buyer on delivery.
6.2 If any of the Goods are damaged or destroyed prior
to title to them passing to the Buyer, the Seller 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 for 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. The production of
these terms and conditions by the Seller is sufficient evidence of
the Seller's rights to receive the insurance proceeds without the
need for any person dealing with the Seller to make further enquiries.
7.1 The Buyer shall inspect the Goods on delivery
and shall within seven (7) days of delivery notify the Seller of any
alleged defect, shortage in quantity, damage or failure to comply
with the description or quote. The Buyer shall afford the Seller an
opportunity to inspect the Goods within a reasonable time following
delivery if the Buyer believes the Goods are defective in any way.
If the Buyer 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 defect or damage.
7.2 For defective
Goods, which the Seller has agreed in writing that the Buyer is entitled
to reject, the Seller's liability is limited to either (at the Seller's
discretion) replacing the Goods or repairing the Goods provided that:
(a) the Buyer has complied with the provisions of clause 7.1; (b)
the Goods are returned at the Buyer's cost within seven (7) days of
the delivery date;
(c) the Seller will not be liable for Goods which have not been
stored or used in a proper manner;
(d) the Goods are
returned in the condition in which they were delivered and with all
packaging material, brochures and instruction material in as new condition
as is reasonably possible in the circumstances.
7.3 The Seller may
(in its discretion) accept the Goods for credit but this may incur
a restocking fee of 10% of the value of the returned Goods plus any
8.1 For Goods not manufactured by the Seller,
the warranty shall be the current warranty provided by the manufacturer
of the Goods. The Seller shall not be bound by nor responsible for
any term, condition, representation or warranty given by the manufacturer
of the Goods.
8.2 In the case of second hand Goods, the Buyer acknowledges
that he has had full opportunity to inspect the same and that he accepts
the same with all faults and that no warranty is given by the Seller
as to the quality or suitability for any purpose and any implied warranty,
statutory or otherwise, is expressly excluded. The Seller shall not
be responsible for any loss or damage to the Goods, or caused by the
Goods, or any part thereof however arising.
9. Default & Consequences Of Default
9.1 Interest on overdue invoices shall accrue from the
date when payment becomes due daily until the date of payment at a
rate of 2.5% compounding per calendar month and shall accrue at such
a rate after as well as before any judgement.
9.2 If the Buyer defaults
in payment of any invoice when due, the Buyer shall indemnify the
Seller from and against all of the Seller's costs and disbursements
including on a solicitor and own client basis and in addition all
of the Seller's nominees costs of collection.
9.3 Without prejudice
to any other remedies the Seller may have, if at any time the Buyer
is in breach of any obligation (including those relating to payment),
the Seller may suspend or terminate the supply of Goods to the Buyer
and any of its other obligations under the terms and conditions. The
Seller will not be liable to the Buyer for any loss or damage the
Buyer suffers because the Seller exercised its rights under this clause.
9.4 If any account remains unpaid at the end of the second month after
supply of the Goods or Services the following shall apply: An immediate
amount of the greater of $20.00 or 10.00% of the amount overdue shall
be levied for administration fees which sum shall become immediately
due and payable in addition to the interest payable under clause 9.1
9.5 In the event that:
(a) any money payable to the Seller
becomes overdue, or in the Seller's opinion the Buyer will be unable
to meet its payments as they fall due, or;
(b) the Buyer becomes insolvent,
convenes a meeting with its creditors or proposes or enters into an
arrangement with creditors, or makes an assignment for the benefit
of its creditors, or;
(c) a receiver, manager, liquidator (provisional
or otherwise) or similar person is appointed in respect of the Buyer
or any asset of the Buyer, then without prejudice to the Seller's other remedies at law:
(i) the Seller shall be entitled to cancel
all or any part of any order of the Buyer which remains unperformed
in addition to and without prejudice to any other remedies; and
(ii) all amounts owing to the Seller shall, whether or not due for payment,
immediately become due and payable.
10.1 It is the intention of the Seller and agreed by the Buyer that
property in the Goods shall not pass until:
(a) The Buyer has paid all amounts owing for the particular
(b) The Buyer has met all other obligations due by the
Buyer to the Seller in respect of all contracts between the Seller
and the Buyer, and that the Goods, or proceeds of the sale of the
Goods, shall be kept separate until the Seller shall have received
payment and all other obligations of the Buyer are met.
10.2 Receipt by the Seller of any form of payment other than cash shall not be
deemed to be payment until that form of payment has been honoured,
cleared or recognised and until then the Seller's ownership of rights
in respect of the Goods shall continue.
10.3 It is further agreed that:
(a) Until such time as ownership of the Goods shall pass from
the Seller to the Buyer the Seller may give notice in writing to the
Buyer to return the Goods or any of them to the Seller. Upon such
notice the rights of the Buyer to obtain ownership or any other interest
in the Goods shall cease.
(b) If the Buyer fails to return the Goods
to the Seller then the Seller or the Seller's agent may enter upon
and into land and premises owned, occupied or used by the Buyer, or
any premises as the invitee of the Buyer, where the Goods are situated
and take possession of the Goods.
11. Personal Property Securities Act 1999 ("PPSA")
11.1 Upon assenting to these terms and conditions
in writing the Buyer 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 Seller to the Buyer (if any) and all Goods that will
be supplied in the future by the Seller to the Buyer during the continuance
of the parties relationship.
11.2 The Buyer 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 Seller may reasonably require to register a financing statement
or financing change statement on the Personal Property Securities
(b) indemnify, and upon demand reimburse, the Seller for
all expenses incurred in registering a financing statement or financing
change statement on the Personal Property Securities Register or releasing
any Goods charged thereby;
(c) not register a financing change statement
or a change demand without the prior written consent of the Seller;
(d) give the Seller not less than fourteen (14) days prior written
notice of any proposed change in the Buyer's name and/or any other
change in the Buyer's details (including but not limited to, changes
in the Buyer's address, facsimile number, or business practice); and
(e) immediately advise the Seller 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.
11.3 The Seller and the
Buyer agree that nothing in sections 114(1)(a), 133 and 134 of the
PPSA shall apply to these Terms and Conditions.
11.4 The Buyer waives
its rights as a debtor under sections 116, 120(2), 121, 125, 126,
127, 129, 131 and 132 of the PPSA.
11.5 Unless otherwise agreed to
in writing by the Seller, the Buyer waives its right to receive a
verification statement in accordance with section 148 of the PPSA.
11.6 The Buyer unconditionally ratifies any actions taken by the Seller
under clauses 11.1 to 11.5. under and by virtue of the power of attorney
given by the Buyer to the Seller.
12. Security & Charge
12.1 Despite anything to the contrary contained herein or any other rights which
the Seller may have howsoever:
(a) Where the Buyer and/or the Guarantor
(if any) is the owner of land, realty or any other asset capable of
being charged, both the Buyer and/or the Guarantor agree to mortgage
and/or charge all of their joint and/or several interest in the said
land, realty or any other asset to the Seller or the Seller's nominee
to secure all amounts and other monetary obligations payable under
the terms and conditions. The Buyer and/or the Guarantor acknowledge
and agree that the Seller (or the Seller's 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 Seller elect to proceed in any manner
in accordance with this clause and/or its sub-clauses, the Buyer and/or
Guarantor shall indemnify the Seller from and against all the Seller's
costs and disbursements including legal costs on a solicitor and own
(c) To give effect to the provisions of clause [11,
12.1(a) to (b)] inclusive hereof the Buyer and/or the Guarantor (if
any) do hereby irrevocably nominate constitute and appoint the Seller
or the Seller's nominee as the Buyer's and/or Guarantor's true and
lawful attorney to execute mortgages and charges (whether registerable
or not) including such other terms and conditions as the Seller and/or
the Seller's nominee shall think fit in his/her/its/their absolute
discretion against the joint and/or several interest of the Buyer
and/or the Guarantor in any land, realty or asset in favour of the
Seller and in the Buyer's and/or Guarantor's name as may be necessary
to secure the said Buyer's and/or Guarantor's obligations and indebtedness
to the Seller and further to do and perform all necessary and other
acts including instituting any necessary legal proceedings, and further
to execute all or any documents in the Seller's absolute discretion
which may be necessary or advantageous to give effect to the provisions
of this clause.
13. Intellectual property
13.1 Where the Seller has
designed or drawn Goods for the Buyer, then the copyright in those
designs and drawings shall remain vested in the Seller, and shall
only be used by the Buyer at the Seller's discretion.
13.2 The Buyer
warrants that all designs or instructions to the Seller will not cause
the Seller to infringe any patent, registered design or trademark
in the execution of the Buyer's order.
14.1 The Seller
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 Seller shall promptly repay
to the Buyer any sums paid in respect of the Price for those Goods.
The Seller shall not be liable for any loss or damage whatsoever arising
from such cancellation.
15. Privacy Act 1993
15.1 The Buyer and the
Guarantor/s (if separate to the Buyer) authorises the Seller to:
(a) collect, retain and use any information about the Buyer, for the purpose
of assessing the Buyer's creditworthiness or marketing products and
(b) to disclose information about the Buyer, whether
collected by the Seller from the Buyer directly or obtained by the
Seller 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
15.2 Where the Buyer is a natural person the authorities under
(clause 15.1) are authorities or consents for the purposes of the
Privacy Act 1993.
15.3 The Buyer shall have the right to request the
Seller for a copy of the information about the Buyer retained by the
Seller and the right to request the Seller to correct any incorrect
information about the Buyer held by the Seller.
16. Buyer's Disclaimer
16.1 The Buyer hereby disclaims any right to rescind, or cancel the
contract or to sue for damages or to claim restitution arising out
of any misrepresentation made to him by any servant or agent of the
Seller and the Buyer acknowledges that he buys the Goods relying solely
upon his own skill and judgement.
17. Contractual Remedies Act 1979
17.1 The provisions of the Contractual Remedies Act 1979 shall apply
to this contract as if section 15(d) of the Contractual Remedies Act
which states that nothing in the Contractual Remedies Act shall affect
the Sale of Goods Act 1908, were omitted from the Contractual Remedies
18. Unpaid Seller's Rights
18.1 Where the Buyer has left
any item with Seller for repair, modification, exchange or for the
Seller to perform any other Service in relation to the item and Seller
has not received or been tendered the whole of the Price, or the payment
has been dishonoured, the Seller shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while the Seller is
in possession of them;
(c) a right of resale,
(d) the foregoing right
of disposal, provided that the lien of the Seller shall continue despite
the commencement of proceedings or judgement for the Price having
19. Consumer Guarantees Act 1993
19.1 This agreement
is subject to the provisions of the Consumer Guarantees Act 1993 in
all cases except where the Buyer is contracting within the terms of
a trade/business (which cases are specifically excluded).
20.1 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.
20.2 All Goods and Services supplied by the
Seller are supplied subject to the laws of New Zealand and the Seller
takes no responsibility for changes in the law that affect the Goods
or Services supplied.
20.3 The Seller shall be under no liability
whatsoever to the Buyer for any indirect loss and/or expense (including
loss of profit) suffered by the Buyer arising out of a breach by the
Seller of these terms and conditions.
20.4 In the event of any breach
of this contract by the Seller the remedies of the Buyer shall be
limited to damages. Under no circumstances shall the liability of
the Seller exceed the Price of the Goods.
20.5 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 control of either party.
20.6 The Buyer shall not set off against the Price amounts due from the Seller.
20.7 The Seller may license or sub-contract all or any part of
its rights and obligations without the Buyer's consent.
20.8 The Seller reserves the right to
review these terms and conditions at any time and from time to time.
If, following any such review, there is to be any change in such terms
and conditions, that change will take effect from the date on which
the Seller notifies the Buyer of such change.