SOUTH AUCKLAND FORGINGS ENGINEERING LIMITED
TERMS AND CONDITIONS OF TRADE
APPLICABLE TERMS AND ACCEPTANCE OF ORDER
These Terms of Trade between SOUTH AUCKLAND FORGINGS ENGINEERING LIMITED (“SAFE") and the Buyer (the "Buyer") shall apply to all orders for engineering equipment and tools, forgings, machining and metallurgy, heat treatment and accessories and related services (“Goods”) accepted by SAFE from the Buyer and these terms and conditions shall prevail and take precedence over any document or oral message from the Buyer. Where SAFE fails to enforce any terms or conditions under this contract SAFE will not be deemed to have waived these rights with respect to any term or condition or right.
The Buyer and SAFE acknowledge that these Terms of Trade constitute a Security Agreement as defined by the Personal Property Securities Act 1999 (“PPSA”). For the purposes of the PPSA, Collateral shall include all and any Goods supplied by SAFE and the proceeds from the sale of all Goods. The Buyer also agrees not to allow any person to file a finance statement over any of the Collateral secured by this Security Agreement without the prior written consent of SAFE.
Quotation and Price
The description given of the Goods in any written or published form has been given by way of identification only to assist the Buyer in making an offer to SAFE and the use of such information does not constitute this contract as a sale by description and binding on SAFE, until SAFE has accepted an offer from the Buyer and has confirmed and signed a quotation listing a Description of Conditions which is declared as a sale by description and the signed quotation and warranty shall be part of this contract.
SAFE shall confirm the price of Goods in its price list or as a quotation or confirmation of the Buyer order and the Buyer shall confirm acceptance of the price or quotation by signing the quotation or providing an order. No quotation shall constitute an offer unless signed by SAFE and SAFE 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.
The quotation or price may be increased if SAFE suffers any cost increases which are beyond its control in the supply, production and delivery of Goods (due to currency changes or supplier price increases or taxation and duties) between the date of contract (or where the contract arises from a quotation, the date of the quotation and the date of delivery, or if the Buyer varies or alters the specifications of the quotation or the requirements for the Goods. All prices are exclusive of GST, insurance, freight and other handling charges.
No cancellation for Make to Order or Buyer owned Goods to be processed
Upon acceptance of a SAFE quotation by the Buyer or Buyer order to SAFE for Goods that are designed or procured specifically for the Buyer (meaning non standard or indented to order) cannot be cancelled without the Buyer paying the full cost of the manufacture or procurement of the Goods to the time of cancellation.
Upon acceptance of a SAFE quotation or Buyer order for Goods that are owned by the Buyer to be pre-manufactured, assembled, treated, machined or processed specifically for the Buyer (meaning the processing of the Buyers property) cannot be cancelled without the Buyer paying the full cost of the manufacture or processing or procurement of the Goods to the time of cancellation. Parts or materials provided by the Buyer to be used by SAFE in its supply of the Goods must be provided at the Buyers own risk and in quantities determined by SAFE and SAFE will not be liable where parts or materials are not in accordance with SAFE specifications or not to standards and tolerances stipulated by SAFE.
Where the Buyer or its agents has arranged for the supply of plans, specifications, drawings or permits and the correctness of settings required for the installation of the Goods or application of services OR where the Goods are to be applied to or mixed with second hand or existing goods being the property of the Buyer, by declaration in the quotation or Buyer order, it shall be the sole responsibility of the Buyer that supply is satisfactory for the purposes they are intended and if SAFE uses such supply and incurs costs where supply is not fit for the purpose intended by the Buyer, the Buyer shall pay SAFE for all costs incurred in its supply.
Payment shall be made according to the terms stated in the SAFE quotation or confirmation of Buyer order and shall generally be:
cash upon delivery or credit card remittance authority left with SAFE,
OR 50% deposit with the order for Goods AND
50% when delivery of Goods is completed, OR
full payment for Goods by the 20th of the month following the date of delivery.
The Buyer shall make payment of all amounts due to SAFE without any delay or deduction whether by way of set-off or counterclaim even under dispute of the invoice and the Buyer agrees that SAFE has sole discretion to apply payments from the Buyer to any transaction or SAFE invoice notwithstanding that the Buyer may have applied the payment to a particular transaction or invoice.
SAFE may charge the Buyer interest on any monies outstanding under this contract on a daily basis at a rate equal to 5% above SAFE's bank indicator lending rate. Interest is payable from the date payment was due until the date SAFE receives payment. SAFE's right to charge interest is without prejudice to SAFE'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 SAFE 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 SAFE may suspend performance of its obligations including suspension of the supply of Goods under this contract.
SAFE may secure any or all Goods previously supplied by SAFE 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 SAFE's satisfaction and SAFE 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. Where the Goods remain unpaid the Buyer hereby irrevocably gives SAFE, its agents or servants, the free and uninterrupted right to enter the Buyer’s 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 SAFE has retained ownership and SAFE may resell all and any of the Goods and apply the proceeds towards payment of the contract price and the Buyer will not hold SAFE 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 Buyer agrees that risk in the Goods shall pass to the Buyer once the Goods are delivered. Goods that are finished items but only part of an order may be delivered in instalments at SAFE'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.
Delivery by SAFE to the site of the Buyer or where the Buyer uplifts the Goods from the premises of SAFE and to +/- ten per cent (10%) quantity of that declared in the SAFE quotation or Buyer order shall constitute delivery.
Delivery by SAFE to a carrier normally used by SAFE shall also constitute delivery and the Buyer shall accept risk in the Goods once the Goods are in the care of the carrier and the Buyer agrees that SAFE shall not be liable for damage caused by the carrier.
The Buyer agrees that SAFE shall not be responsible for the validity of the person accepting the Goods on behalf of the Buyer at the time of delivery.
SAFE will make every effort to ensure delivery of Goods 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 and Title
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 agrees to pay SAFE for the full cost of the Goods.
The Buyer agrees that SAFE 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 SAFE the Buyer may use the Goods in such a way that they are identifiable as the property of SAFE.
This reservation of title and ownership is effective whether or not the Goods have been altered from that supplied or mixed with other goods or materials or fixed to a building or property owned by the Buyer. Where such Goods are altered or mixed and are severable but not identifiable or where it is impractical to remove the Goods without incurring loss to an innocent third party, the Buyer shall agree to give SAFE an ownership interest in the property of the Buyer in proportion to the contribution made by the Goods to the value of the Buyer's property.
Title upon Sale to a Third Party
Notwithstanding that property in the Goods is retained by SAFE, 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 SAFE until the Buyer pays SAFE in full without deduction or setoff: provided that such authority may be revoked by written notice at any time if SAFE deems the credit of the Buyer to be unsatisfactory or if the Buyer is in default of its obligations under this contract or any other contract between SAFE and the Buyer.
If the Goods the subject of this contract, have become the constituent of mixed with or attached to any other goods, meaning Goods that are sold by SAFE and those goods are sold by the Buyer prior to SAFE receiving payment, then a portion of the proceeds of that sale, attributable to SAFE’s Goods shall be the property of SAFE, and the Buyer shall ensure that such proceeds are at all times held in a separate fund in trust for SAFE by the Buyer. Proceeds of sale so received by the Buyer shall be placed in a separate bank account held as a separate fund in trust for SAFE and shall first be applied towards the satisfaction of all indebtedness of the Buyer to SAFE.
Personal Property Securities Act
The Buyer shall inform its creditors of the terms upon which it buys Goods from SAFE and that SAFE may create and register a Purchase Money Security Interest under the PPSA for any and all Goods and that the Buyer agrees to waive the right to receive a verification statement for purposes of s.148 of the Act. The Buyer shall inform any Trustee in Bankruptcy or Liquidator of the Buyer or any Receiver of the Buyer’s business or assets of the rights of SAFE and title to the proceeds of sale.
The Security Agreement is a continuing security and will operate irrespective of any intervening payment or settlement of account until a release has been signed by SAFE. The security interest granted in the Collateral has the same priority in relation to any and all of the Goods supplied to the Buyer at any time.
SAFE Warranty & Liability
For Goods sold by SAFE but not manufactured by SAFE shall be the warranty of the original manufacturer and will apply from the date of delivery to the Buyer. For Goods manufactured by SAFE the warranty shall be declared in the quotation or confirmation of order.
SAFE'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 SAFE. If the Buyer uses the Goods for other purposes than that specified by SAFE in its publications the Buyer agrees to be responsible for the fitness of the Goods for the purposes required by the Buyer for use, fatigue, loads and operating conditions and SAFE 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.
SAFE shall not be liable for any economic or consequential loss to the Buyer arising out of any breach of the obligations of SAFE and the liability of SAFE whether in contract or pursuant to any cancellation of the contract or in act or otherwise in respect to all claims for loss, damage or injury the Buyer may regard, shall be linked at the option of SAFE to the repair or replacement of the Goods or to the price of the Goods.
SAFE 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 lock-out, act of God, fire, governmental regulations or directions, or any other cause force majeure beyond SAFE's reasonable control. The occurrence of such an event shall not give the Buyer a right of cancellation of the contract.
Claims for Damaged or Defective Goods, Discrepancies and Shortages
SAFE may, at its discretion, repair or replace any damaged or defective Goods provided that the Buyer advises SAFE 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 SAFE with seven (7) days of delivery.
When Claims will not be considered
SAFE's liability in respect of any claim shall relate only to specific manufacturing defects in the Goods. The Buyer agrees that SAFE 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 SAFE publications or testing results
(v) have been altered from the description condition in which they were supplied or repaired by persons other than SAFE
(vi) have not been maintained according to information in SAFE publications or testing
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 SAFE will not incur any liability whatsoever in relation to the Goods.
Application of the Consumer Guarantees Act
Where the Buyer acquires the Goods for the business purposes of a business the parties agree to contract out of the provisions of the Consumer Guarantees Act 1993 to the extent permitted by that Act.
The Buyer agrees that where SAFE supplies intellectual property in the form of patents, trademarks and copyrights or written instructions, drawings, plans, manuals and other technical information the ownership of such intellectual property shall always remain with SAFE and the Buyer further agrees that it shall not use the intellectual property in any manner whatsoever whether in complete form or in any way adapting or altering except for its purposes in operating the Goods.
Where SAFE has followed plans, drawings, designs, specifications and instructions being oral or written provided by the Buyer, the Buyer shall indemnify SAFE against damages, costs and expenses in respect of which SAFE may become liable by following such plans, drawings, designs, specifications and instructions and including those arising from the infringement of patents, copyrights or trademarks by the Buyer.
Grounds for Termination by SAFE
Immediately on written notice to the Buyer, SAFE may terminate this contract if an Event of Default of payments due to SAFE by the Buyer occurs for any reason. Upon the termination of this agreement for any reason, all rights of the Buyer granted by this agreement shall terminate. Terminations of this contract shall not relieve the Buyer of its obligations to pay all money owed by it to SAFE on any account whatsoever, which money shall be payable immediately notwithstanding that the date for payment of the money may not have arrived. Termination of this contract shall not relieve the Buyer from liability arising from any antecedent breach of the terms and conditions of this contract.
Dispute and Arbitration
In the event of any dispute between SAFE 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.
Upon signing the SAFE Credit Application OR signing acceptance of a SAFE quotation OR providing an order to SAFE, the Buyer agrees that these Terms and Conditions of Trade shall apply.