PSPSTONECRAFT TERMS AND CONDITIONS
1. CONDITIONS OF SALE
1.1 These conditions of Sale apply from [ ].
Any changes will be notified to the buyer prior to implementation.
2.1 Prices shall be the standard price specified by PSP at
the date of delivery.
2.2 The price will 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 PSP.
2.3 The Buyer is bound to pay the price from the time that
an order is placed with PSP. No order may be cancelled without PSP's prior approval, and then only upon such terms as PSP may specify.
3.1 Unless otherwise agreed, the price must be paid by the
20th of the month following the date of invoice.
3.2 If the Buyer does not pay the price by due date, PSP will
charge a default penalty at a rate per annum equal to 4% above PSP's bank's indicator lending rate from time to time calculated on a daily basis on the unpaid portion of the price from due date until payment in full, plus GST.
3.3 If an Event of Default occurs, the amount owing will
immediately become due and payable notwithstanding that the due date has not arisen.
3.4 The Buyer may not withhold payment or make any
deductions from any amount owing without PSP's prior written consent.
3.5 PSP may require the Buyer to provide a guarantee for
payment or a deposit in a form satisfactory to PSP.
4.1 PSP will deliver, or arrange delivery of the goods to the
place specified in this contract. If no place of delivery is specified, delivery will be made at PSP's premises and will take place at the time when the goods physically leave PSP's premises.
4.2 If PSP arranges transportation, storage or insurance of
the goods by any third party:
(a) delivery will be made at the place from which PSP dispatches the goods, and
(b) PSP does this as the Buyer's agent.
4.3 Any time stated for delivery is an estimate only. PSP is
not liable for any delay in delivery.
4.4 If the Buyer refuses to accept delivery of any of the
goods the Buyer must still pay for them and PSP may charge the Buyer for any additional costs that PSP incurs as a result, including storage and transportation costs.
5.1 Where PSP provides installation services, the Buyer
acknowledges that any time stated for the work to be performed is an estimate only. PSP is not liable for any delay in performance of such services.
6. RISK AND OWNERSHIP
6.1 Risk of any loss, damage or deterioration of or to the
goods passes to the Buyer on delivery of the goods to the Buyer or its agent.
6.2 Ownership of the goods remains with PSP and does not
pass to the Buyer until the Buyer pays the Buyer's Indebtedness or resells the goods pursuant to these terms.
6.3 While ownership of the goods remains with PSP:
(a) the Buyer must store them separately and clearly identify them as belonging to PSP.
(b) PSP authorises the Buyer in the ordinary course of the Buyer's business to use the goods or sell them for full consideration. This authority is revoked from the time that:
(i) an Event of Default occurs; or
(ii) PSP notifies the Buyer in writing that this authority is revoked.
(c) as the Buyer's agent PSP may enter the premises where the goods are stored and remove them. To allow PSP to do that, the Buyer grants PSP an irrevocable right to enter the premises at any time and PSP will not be responsible for any damage caused in entering and removing the goods. The Buyer is liable for all costs incurred by PSP (including transportation and storage charges) in entering and removing the goods. PSP may resell any of the goods and apply the proceeds of sale in reduction of the Buyer's Indebtedness.
(d) The Buyer must advise PSP immediately of any Event of Default of any action by third parties (including any of the Buyer's creditors) affecting PSP's interest in the goods.
6.4 PSP may apply any payments received from or on
behalf of the Buyer in reduction of the Buyer's indebtedness as PSP thinks fit.
6.5 If the Buyer resells or uses the goods before ownership
of the goods has passed to the Buyer, the proceeds of
such sale or use will be received and held by the Buyer (in whatever form) in trust for both the Buyer and PSP. PSP's interest as beneficiary under that trust will be that portion of the proceeds which does not exceed the Buyer's indebtedness to PSP. PSP may at any time by notice in writing require the Buyer to convert the proceeds into money, to be paid into a bank account nominated by PSP for disbursement in accordance with these terms.
6.6 PSP may bring an action for the price of the goods sold
even where ownership of the goods may not have passed to the Buyer.
7.1 Where the goods are of a kind ordinarily acquired for
personal, domestic or household use or consumption in accordance with the Consumer Guarantees Act 1993 and the Consumer Guarantees Act 1993 applies to this contract:
(a) if any of the goods fail to comply with any guarantee in the Consumer Guarantees Act, PSP will repair or replace those goods;
(b) without excluding PSP's obligations under the Consumer Guarantees Act 1993, the Buyer acknowledges that PSP does not provide any Express Guarantees (as defined in that Act) other than those expressly confirmed by PSP in writing;
(c) if the goods are acquired by the Buyer for business purposes, the Buyer agrees that the Consumer Guarantees Act 1993 does not apply;
(d) if the Buyer supplies the goods in trade to a person acquiring them for business purposes, it must be a term of the Buyer's contract that the Consumer Guarantees Act 1993 does not apply in respect of the goods; and
(e) if the Buyer supplies the goods to any person, the Buyer must not give or make any undertaking assertion or representation in relation to the goods without PSP's prior approval in writing, and the Buyer must give the person buying the goods such product information relating to the goods as PSP requires, and the Buyer agrees to indemnify PSP against any liability or cost incurred by PSP under the Consumer Guarantees Act 1993 as a result of any breach by the Buyer of these obligations.
7.2 The following terms apply wherever the Consumer
Guarantees Act 1993 does not apply to this contract, or where the following terms are not inconsistent with the Consumer Guarantees Act 1993:
(a) Defective goods or goods which do not comply with the contract may at PSP's discretion be repaired or replaced, or the price refunded.
(b) Any right which the Buyer may have to reject nonconforming or defective goods will only be effective if:
(i) the Buyer notifies PSP in writing within seven days following delivery and PSP is given the opportunity to inspect the goods; and
(ii) the goods are returned unused, re-saleable and/or in the condition the Buyer received them.
(c) PSP will not repair or replace, or refund the price of any goods for so long as the Buyer is in default in relation to any amount owing.
(d) PSP accepts no liability for any claim by the Buyer or any other person, including without limitation any claim relating to or arising from:
(i) any conditions, warranties, descriptions,
representations, conditions as to fitness or suitability for any purpose, tolerance to any conditions, or otherwise, whether express or implied by law, trade custom or otherwise; or
(ii) any representations, warranties, conditions or agreement made by any agent or representative which are not expressly confirmed by PSP in writing; or
(iii) any services forming part of the supply of the goods which have been performed by any third party; and the Buyer agrees to indemnify PSP against any such claim.
(e) In any event, PSP's liability under any claim shall not exceed the price of the goods.
7.3 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, and these terms are to be modified to the extent necessary to give effect to that intention.
8. NATURAL VARIATION
8.1 The Buyer acknowledges that where goods such as stone are subject to natural variations in colour, grain and texture:
(a) The actual goods purchased may vary considerably from any sample of such goods;
(b) Photographs of such goods are of a general nature only;
(c) PSP cannot guarantee that any shipment of such goods will be the same colour, grain or texture, as other shipments of the same type of goods;
(d) and in order to ensure that such goods meet with the buyer's requirements, the Buyer should personally select such goods for placing an order
9.1 If an Event of Default occurs PSP may suspend or
terminate this contract.
9.2 The Buyer agrees to indemnify PSP against any costs,
loss, damage or injury suffered or incurred by PSP as a result of an Event of Default, including legal costs on a solicitor/client basis.
10. USE OF INFORMATION
10.1 The Buyer agrees that PSP may obtain information
about the Buyer from the Buyer or any other person (including any credit or debt collection agencies) in the course of PSP's business, including credit assessment, debt collecting and direct marketing activities, and the Buyer consents to any person providing PSP with such information.
10.2 The Buyer agrees that PSP may give any information
PSP has about the Buyer to any other person, including any credit or debt-collecting agency.
10.3 The Buyer must notify PSP of any change in
circumstances that may affect the accuracy of the information provided by the Buyer to PSP.
10.4 If the Buyer is an individual, i.e. a natural person, the
Buyer has rights under the Privacy Act 1993 to access and correct any personal information, which PSP holds about the Buyer.
11.1 If there is any inconsistency between these terms and
any order submitted by the Buyer or any other arrangement between the parties, these terms prevail unless otherwise agreed in writing by the parties.
12.1 No failure by PSP to exercise, and no delay on its part in exercising, any right or remedy shall prevent PSP from subsequently exercising that right, power or remedy.
12.2 No statement by PSP that it shall delay, or refrain from, enforcing any term of this contract will be binding unless stated in writing and signed by an authorised officer of PSP.
13.1 The Buyer must not transfer or assign the Buyer's rights under this contract to anyone else without PSP's prior consent in writing.
14.1 The Buyer shall treat as confidential and not use for the benefit of any third party or disclose to any third party, during or after the termination of the Buyer's account with PSP any confidential information which is obtained from or provided by PSP pursuant to this agreement, or otherwise arising out of PSP's supply of goods to the Buyer including, without limitation, any price prepared by PSP.
15.1 PSP shall not be liable for failure or delay to perform its obligations if the delay or failure is beyond its control.
16.PERSONAL PROPERTY SECURITIES ACT 1999 15.1 The Buyer acknowledges that:
16.1.1 This contract constitutes a security agreement for the purpose of section 36 of the PPSA;
16.1.2 The Buyer grants to PSP a general security interest in all if its present and after acquired personal property to secure (with equal priority) payment of all amounts owed by the Buyer to PSP from time to time;
16.1.3 PSP retains title to any goods supplied until payment in full is received and takes a security interest in all goods that have previously been supplied to the Buyer (if any) and all goods that PSP provides services in respect of or will supply in the future, to secure (with equal priority) payment of all amounts owed by the Buyer from time to time;
16.1.4 The security interests will continue until the Buyer has paid all amounts owing; and
16.1.5 the Buyer waives its rights to receive a verification statement under section 148 of the PPSA
16.2 The Buyer covenants and undertakes that it:
16.2.1 will promptly sign any further documents, provide any further information, or do any other things that PSP reasonably requires to perfect and maintain the perfection on the security interests granted by this contract (including by registering a financing statement or financing change statement);
16.2.2 indemnifies (and if requested will reimburse) PSP for and against all expenses that PSP incurs in registering a financing statement or financing change statement or releasing property and goods charged by any financing statement; and
16.2.3 will give PSP 10 days prior written notice of any change in name, business practice or any other details, and use its best endeavours to ensure that any applicable financing change statement is registered disclosing the new details to the fullest extent permitted by law, the Buyer and PSP agree to contract out of section 114(1)(a) of the PPSA, and the Buyer out of the rights referred to in sections 107(2)(c), (d), (h) and (i) of the PPSA. If and for so long as PSP is not the secured party with priority over all other secured parties in respect to any particular Goods, section 109(1) of the PPSA does not apply to those particular goods.
16.3 The Buyer hereby waives its rights contained in sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131, and 132 of the PPSA.
17.1 If anything in this agreement is unenforceable, illegal or void it is severed and the rest of this agreement remains in force.
17.2 The Buyer may not claim any counter claim or set-off against any payments due by it to PSP.
17.3 Under no circumstances shall the liability of PSP exceed the price of the goods in the event of a breach of this contract.
17.4 PSP may license or sub-contract all or any part of its
rights and obligations without the Buyer's consent.
17.5 PSP reserves the right to review and change these terms and conditions at any time and will notify the Buyer of this in writing at which time the changes will take effect.
PSP STONECRAFT WARRANTY
1. This warranty applies to Granite and Marble stone products supplied for indoor use by PSP Stonecraft (“Products”). By accepting supply from PSP Stonecraft, you agree to the terms of this warranty.
2. PSP Stonecraft warrants to the customer that all Products will, immediately following installation, be free from defects arising from manufacture and workmanship in respect of the fabrication and installation of the Products.
3. Any warranty claim must be made within 14 days of the defect becoming apparent and no later than 12 months from the date of installation.
4. If a valid claim is made under this warranty, PSP Stonecraft’s liability is limited to the repair or replacement of the faulty Product which will be determined by PSP Stonecraft in its absolute discretion. PSP Stonecraft will not be liable for any consequential loss or damage of any kind and in no circumstance, will liability exceed the price paid by the customer for the Product.
5. This warranty will not apply:
a. Unless the Product has been paid for in full, and has been maintained in accordance with the Stone Care Information sheet provided at the time of installation (which can also be found on the website – www.pspstonecraft.co.nz under Stone Care);
b. If a person other than an employee or contractor to PSP Stonecraft performs any work on the Product;
c. If the Product has been used other than for the purpose disclosed to PSP Stonecraft prior to manufacture;
d. If the Product has been exposed UV radiation, chemicals, flames or excessive heat or weight, or has had hot items placed directly on it;
e. In respect of the naturally occurring characteristics of the Product which may include (without limitation) fissures, blemishes, variations in colour, veining, surface variations or pitting on the surface; or
f. To any fault or damage which, in the reasonable opinion of PSP Stonecraft, has been caused by misuse, neglect or accident.
6. To the extent permitted by law, all warranties implied by law, trade, custom or otherwise are excluded. The guarantees contained in the Consumer Guarantees Act 1993 are expressly excluded where the customer acquires the Product in trade.