Terms of Trade
Hardie & Thomson Limited and Joint venture partnership Health Based Building– Terms & Conditions of Trade
1.1 “Seller” shall mean Hardie & Thomson Limited and assigns or any other person acting on behalf of and with the authority of Hardie & Thomson Limited.
1.2 “Buyer” shall mean the Buyer (or any person acting on behalf of and with the authority of the Buyer) as described on any quotation, work authorisation or other form as provided by the Seller to the Buyer.
1.3 “Guarantor” shall mean that person (or persons) who agrees to be liable for the debts of the Buyer on a principal debtor basis.
1.4 "Goods" shall mean all Goods supplied by the Seller to the Buyer (and where the context so permits, shall include any supply of Services as defined below) and includes Goods described on any invoices, quotation, work authorisation or any other forms as provided by the Seller to the Buyer.
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 price payable for the Goods as agreed between the Seller and the Buyer in accordance with Clause 3 of these terms and conditions.
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 these 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 binding and can only be amended with the written consent of the Seller.
2.5 Goods are supplied by the Seller only on these terms and conditions of trade, to the exclusion of anything to the contrary in these terms of the Buyer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
3 Price and Payment
Payment of goods before getting freight quote
3.1 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) the Seller's quoted Price (subject to clause 3.2) which shall be binding upon the Seller provided that the Buyer shall accept the Seller's quotation in writing within thirty (30) days.
3.2 The Seller reserves the right to change the Price in the event of a variation to the Seller's quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation due to unforeseen circumstances, or due to fluctuations in the currency exchange rate, as a result of increases to the Seller in the cost of materials and labour) will be paid 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.
3.3 The Seller may submit detailed progress payment claims in accordance with the Seller's specified payment schedule. Such payment claims may include the reasonable value of authorised variations and the value of any materials delivered to the site but not yet installed.
3.4 At the Seller’s sole discretion, a non-refundable deposit may be required.
3.5 At the Seller’s sole discretion:
(a) payment shall be due on delivery of the Goods; or
(b) payment shall be due before delivery of the Goods; or
(c) payment for approved Buyers shall be made by instalments in accordance with the Seller’s payment schedule; or
(d) payment for approved Buyers 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.
3.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card excluding American Express, or by direct credit, or by any other method as agreed to between the Buyer and the Seller.
3.7 GST and other taxes and duties that may be applicable shall be added to the Price except where they are expressly included in the Price.
4 Delivery of Goods
4.1 At the Seller’s sole discretion, delivery of the Goods shall take place when:
(a) the Buyer takes possession of the Goods at the Seller’s address; or
(b) the Buyer takes possession of the Goods at the Buyer’s nominated address (in the event that the Goods are delivered by the Seller or the Seller’s nominated carrier); or
(c) the Buyer’s nominated carrier takes possession of the Goods, in which event the carrier shall be deemed to be the Buyer’s agent.
4.2 At the Seller’s sole discretion, the costs of delivery are:
(a) in addition to the Price; or
(b) for the Buyer’s account.
4.3 The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Buyer is unable to take delivery of the Goods as arranged, then the Seller shall be entitled to charge a reasonable fee for redelivery.
4.4 Delivery of the Goods to a third party nominated by the Buyer is deemed to be delivery to the Buyer for the purposes of these terms and conditions.
4.5 The Seller may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
4.6 The Buyer acknowledges and agrees that timber cut to specific measurements is subject to availability and discrepancies in measurements may occur. The Buyer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser 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.
4.7 The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
4.8 Any quotations relating to the time for delivery of Goods are estimates only and not commitments. The Seller shall not be bound by, or liable for a failure to comply with any such quotations.
4.9 The Seller shall not be liable for any loss or damage whatsoever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of the Seller.
4.9.1 Delivery and Freight including ecommerce order delivery
5.1 If the Seller retains ownership of the Goods nonetheless, all risk for the Goods passes to the Buyer on delivery in accordance with clause 4.1.
6.1 The Seller and Buyer agree that ownership of the Goods shall not pass until:
(a) the Buyer has paid the Seller all amounts owing for the particular Goods; and
(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.
6.2 Receipt of 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 or rights in respect of the Goods shall continue.
6.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until the Seller shall have received payment and all other obligations of the Buyer are met; and
(b) 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 being given, the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease; and
(c) the Buyer is only a bailee of the Goods and until such time as the Seller has received payment in full for the Goods then the Buyer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Buyer owes to the Seller for the Goods, on trust for the Seller; and
(d) until such time that ownership in the Goods passes to the Buyer, if the Goods are converted into other products, the parties agree that the Seller will be the owner of the end products; and
(e) if the Buyer fails to return the Goods to the Seller then the Seller or the Seller’s agent may (as the invitees of the Buyer) enter upon and into land and premises owned, occupied or used by the Buyer, or any premises where the Goods are situated and take possession of the Goods, and the Seller will not be liable for any reasonable loss or damage suffered as a result of any action of the Seller under this clause. The Buyer will remain liable for any shortfall between the amount credited to the Buyer’s account and the amount owing to the Seller under these terms and conditions.
7 Personal Property Securities Act 1999 (“PPSA”)
7.1 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, and their proceeds.
7.2 All payments received by the Seller may be applied in such manner as is desirable to preserve any purchase money security interest in the property described in 7.1 (b).
7.3 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 Register;
(b) indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement or financing charge statement on the Personal Property Securities Register or releasing any Goods charged;
(c) not register a financing change statement or a change demand without the prior written consent of the Seller;
(d) 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; and
(e) not allow security interests to be created or registered over the Goods in priority to the security interest(s) held by the Seller.
7.4 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.
7.5 The Buyer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.
7.6 Unless otherwise agreed in writing by the Seller, the Buyer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
7.7 The Buyer shall unconditionally ratify any actions taken by the Seller under clauses 7.1 to 7. 6.
8 Buyer’s Disclaimer
8.1 The Buyer disclaims any right to rescind, or cancel any contract with the Seller or to sue for damages or to claim restitution arising out of the any inadvertent misrepresentation made to the Buyer by the Seller and the Buyer acknowledges that the Goods are bought relying solely upon the Buyer’s skill and judgment.
9 Defects and returns
9.1 The Buyer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. If the Buyer shall fail to comply with these provisions, the Goods shall be presumed to be free from any defect or damage. 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.
9.2 Goods will not be accepted for return other than in accordance with 9.1 above.
9.3 Defective goods received from E-commerce trading
Returns of timber in good condition are not accepted. No excess or unused timber will be accepted for return.
-All orders are deemed correct and in good condition upon signing the packing slip and receiving the goods.
-If there are an defects, the buyer is to notify the seller prior to signing the packing slip of receiving
-it is the buyers responsibility to inspect the goods upon receipt
-the Seller does not accept returns of glue, paint, joint filler, liquid flashing, oils and any other product that is liquid and requires specific storage conditions and comes in a sealed container
-the seller does not accept returns of excess quantity
-the seller does not accept returns of Timber or Magnum board should the buyer have changed his or her mind after purchase
-the Seller will accept defective goods upon proof of defect PRIOR to installation.
-upon proof of defective goods, the seller is required to provide photos and tallies of timber (or other product) that is defective. The seller will then review, determine whether this is within the specifications of the product quality (based on product sheet that is publicly available).
-Upon determining and confirming that the product is defective the seller can offer to refund the equivalent of the defective product or opt to have the product returned at the sellers expense.
-The seller does not accept returns of timber as storage (chain of custody) cannot be established after the product is delivered and signed for. Due to the fact that timber requires specific care in storage the seller cannot rightfully accept timber as a return and in good conscience on sell it to another customer.
-If the buyer wishes to return timber it must be in its original packaging and the buyer assumes the cost of freight as well as a 10% restocking and administrative fee which will be deducted from the refund.
-refunds will be returned to the method of payment that the buyer used. Whether by Credit Card or by Direct Bank Deposit.
- If a product is accepted to be returned, the product must be returned to seller within 7 days of purchase or receipt of product.
- If buyer arranges their own freight, the return policy is that they have 1 day to notify the seller of any defect
10.1 Subject to the conditions of warranty set out in Clause 10.2, the Seller warrants that if any defects in any workmanship of the Seller becomes apparent and is reported to the Seller within twelve (12) months of the date of delivery (time being of the essence) then the Seller will either (at the Seller’s sole discretion) replace or remedy the workmanship.
10.2 The conditions applicable to the warranty given by Clause 10.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(b) the warranty shall cease and the Seller shall in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Seller’s consent.
(c) in respect of all claims, the Seller shall not be liable to compensate the Buyer for any delay in either replacing or remedying the workmanship or in properly assessing the Buyer’s claim.
10.3 If the Seller is required under these terms and conditions to repair any defective Goods, the repair shall be undertaken at such place as the Seller may specify and the Buyer shall be responsible for delivery of the defective Goods to and from such place of repair.
11 Consumer Guarantees Act 1993
11.1 If the Buyer is acquiring Goods for the purposes of a trade or business, the Buyer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by the Seller to the Buyer.
12 Intellectual Property
12.1 Where the Seller has designed, drawn or written Goods for the Buyer, then the copyright and intellectual property rights in those designs and drawings and documents shall remain vested in the Seller, and shall only be used by the Buyer at the Seller’s discretion.
12.2 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 and the Buyer agrees to indemnify the Seller against any action taken by a third party against the Seller in respect of any such infringement.
12.3 The Buyer agrees that the Seller may use any documents, designs, drawings or Goods created by the Seller for the purposes of advertising, marketing, or entry into any competition.
13 Default and Consequences of Default
13.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Seller’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
13.2 In the event that the Buyer’s payment is dishonoured for any reason the Buyer shall be liable for any dishonour fees incurred by the Seller.
13.3 If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in pursuing the debt including legal costs on a solicitor and own client basis and the Seller’s collection agency costs.
13.4 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 has exercised its rights under this clause.
13.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00) shall be levied for administration fees which sum shall become immediately due and payable.
13.6 Without prejudice to the Seller’s other remedies at law, the Seller shall be entitled to cancel all or any part of any order of the Buyer which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable 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; or
(d) any Goods are at risk; or
(e) any other event occurs which the Seller considers (acting reasonably) may materially adversely affect the ability of the Buyer to perform any of its obligations under the terms and conditions.
13.7 The Buyer will indemnify the Seller against any liability or cost in connection with any unauthorised use of the Goods by the Buyer and against any liability or cost incurred by the Seller as a result of any breach by the Buyer of any provision of these terms and conditions.
14 Security And Charge
14.1 Despite anything to the contrary contained in these terms and conditions 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 such land, realty or any other asset to the Seller or the Seller’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. Such a mortgage shall be in an all obligations form published by the Auckland District Law Society under number 2015/4328 or, at the option of the Seller, any form to the same or similar effect reasonably required by the Seller. 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 withdrawn once all payments and other monetary obligations payable 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 client basis.
(c) the Buyer and/or the Guarantor (if any) agree to 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 perform all necessary acts to give effect to the provisions of this clause 14.1.
15.1 The Seller may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving notice to the Buyer. On giving such notice, the Seller shall repay to the Buyer any sums paid in respect of the Price. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.2 In the event that the Buyer cancels delivery of the Goods, the Buyer shall be liable for any loss incurred by the Seller (including, but not limited to, any loss of profits) up to the time of cancellation.
15.3 Cancellation of orders for Goods made to the Buyer’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.
15.4 Cancellation of Orders from e-commerce trading relating to stock and non stock items
Cancellation of Web Orders
-Cancellation can be made prior to payment online
-Cancellation can be made prior to product leaving the warehouse at which case a 10% administration and restocking fee will be incurred
Non Stock items, speciality machined products or products which have been altered in any way (tinted paints), may not be returned under any circumstances.
16 Privacy Act 1993
16.1 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 and/or Guarantors, for the purpose of assessing the Buyer’s and/or Guarantor’s creditworthiness or marketing products and services to the Buyer and/or Guarantors; and
(b) disclose information about the Buyer and/or Guarantors, whether collected by the Seller from the Buyer and/or Guarantors 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 Buyer and/or Guarantors.
16.2 Where the Buyer and/or Guarantors are an individual, the authorities under clause 16.1 are authorities or consents for the purposes of the Privacy Act 1993.
16.3 The Buyer and/or Guarantors shall have the right to request the Seller for a copy of the information about the Buyer and/or Guarantors retained by the Seller and the right to request the Seller to correct any incorrect information about the Buyer and/or Guarantors held by the Seller.
16.4 Ecommerce Privacy
16.5 For all e-commerce transactions the seller does not hold credit card or personal details
16.6 All purchases are facilitated by Payment express and all payments are handled by a secure, PCI compliant third party
16.7 Export Terms and conditions
-all prices are in New Zealand dollars on the website and in store
-any additional charges incurred after product leaves Colombo street warehouse are the responsibility of the buyer. Including but not limited to: Tarriffs, overseas shipping (outside of New Zealand), damage during shipping, insurance, legalities and inspections for boarder control.
-Any documentation required for export is also the responsibility of the purchaser, the buyer will provide all documents they are required to within New Zealand.
-the seller is not required to provide additional compliance documentation for any country outside of New Zealand
- Any incurred cost of getting required documents will be the cost of the purchaser
17 Unpaid Seller’s Rights
17.1 Where the Buyer has left any item with the Seller for repair, modification, exchange or for the Seller to perform any other Service in relation to the item and the 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 the item;
(c) a right to sell the item.
17.2 The lien of the Seller shall continue despite the commencement of proceedings, or judgement for the Price having been obtained.
18 Construction Contract Act 2002
18.1 The Buyer expressly acknowledges that:
(a) The Seller has the right to suspend work within five (5) working days of written notice of its intent to do so if a payment claim is served on the Buyer, and
(b) If the Seller suspends work, it:
(c) If the Seller exercises the right to suspend work, the exercise of that right does not:
19.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
19.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.
19.3 The Seller shall be under no liability whatsoever to the Buyer for any indirect and/or consequential 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.
19.4 In the event of any breach of these terms and conditions by the Seller, the remedies of the Buyer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
19.5 The Buyer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Buyer by the Seller nor to withhold payment of any invoice because part of that invoice is in dispute.
19.6 The Seller may license or sub-contract all or any part of its rights and obligations without the Buyer’s consent. The Buyer must not assign or purport to assign (whether in whole or in part) its interest in this contract without the prior written consent of the Seller.
19.7 The Seller reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Seller notifies the Buyer of such change.
19.8 The provisions of the Contractual Remedies Act 1979 shall apply to this contract as if section 15(d) were omitted from the Contractual Remedies Act 1979.
19.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
19.10 The failure by the Seller to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Seller’s right to subsequently enforce that provision.