Terms of Business

 

EUROPEAN CERAMIC TILES LIMITED

TERMS AND CONDITIONS OF TRADE

 

  1. Application

 

1.1        The following terms and conditions of trade (Terms) shall apply to all and any goods and products (Goods) contained in a quote for purchase (Quote) accepted by you (Purchaser) from European Ceramic Tiles Limited (ECTL).

 

1.2        The Quote forms part of these Terms.

 

1.3        If there is any inconsistency between these Terms and any Quote, then the Quote will be interpreted in priority to the extent of that inconsistency. Otherwise, these Terms will prevail if there is any inconsistency with any other document.

 

1.4        Additional or different terms proposed by the Purchaser will not be applicable unless accepted in writing by ECTL.

 

  1. Authorisation

 

2.1        The Purchaser must obtain all necessary or prudent authorisation (including licences, permits and consents) in relation to the purchase of the Goods and at all times comply with all statutes, bylaws, regulations, relevant codes of practice, and other lawful requirements relating to the performance of obligations under these Terms.

 

  1. Placing Orders

 

3.1        Where the Purchaser wishes to purchase Goods, the Purchaser will issue ECTL with an order in writing specifying the Goods to be purchased (Order).

 

3.2        ECTL has no obligation to enquire into the authority of any Purchaser personnel placing Orders on the Purchaser’s behalf.

 

3.3        On receipt of an Order, ECTL will either:

 

  • provide the Purchaser with a Quote containing an estimate of the price for the Goods specified in the Order; or
  • notify the Purchaser that it is unable to complete the Order.

 

  1. Quotes

 

4.1        Upon acceptance of a Quote by the Purchaser, ECTL agrees to sell the Goods to the Purchaser, and the Purchaser agrees to purchase the Goods from ECTL, on the terms and conditions set out in these Terms and the Quote.

 

4.2        The Purchaser is solely responsible for the accuracy of any information provided to ECTL upon which a Quote is based and agrees that any:

 

  • changes to the quantities, measurements or specifications of the Goods notified to ECTL after the Quote has been accepted by the Purchaser; or
  • inaccuracies or misstatements in the information provided to ECTL by the Purchaser discovered by ECTL or notified by the Purchaser after acceptance of a Quote, shall constitute a variation and shall be paid for by the Purchaser in addition to the estimated price in the Quote.

 

4.3        ECTL may require the Purchaser to pay a deposit as specified in the Quote, which is non-refundable at in ECTL’s sole and absolute discretion.

 

  1. Price

 

5.1        Unless otherwise expressly recorded in writing by ECTL, the Purchaser acknowledges that any pricing information ECTL provides to the Purchaser for Goods in a Quote shall be deemed to be an estimate only and the Purchaser is liable for the actual price of those Goods as invoiced by ECTL. In this regard, ECTL at all times reserves the right to adjust prices without prior notice where external factors beyond its control affect its pricing of Goods. This includes, but is not limited to, external factors such as foreign exchange rates, Government duties and taxes.

 

5.2        Unless otherwise stated, all Quotes are exclusive of goods and services tax (GST).

 

5.3        The price specified in ECTL’s invoices excludes delivery costs (where applicable) unless otherwise stated.

 

  1. Indent Goods

 

6.1        The following terms and conditions shall apply to any Goods ordered by ECTL on the Purchaser’s behalf from suppliers or manufacturers located outside of New Zealand (Indent Goods):

 

  • Subject to clause 5.1, payment of Indent Goods shall be as specified in the accepted Quote.
  • Quotes remain valid for 60 days or the period otherwise specified in the Quote, whichever is earlier.
  • ECTL will, if requested, provide the Purchaser with shipping information and a projected estimated time of arrival provided that ECTL will have no liability whatsoever should delivery of Indent Goods not be made on this date due to shipping delays, strikes, breakdowns or any other reason beyond ECTL’s control. The Purchaser agrees that no compensation will be payable by ECTL or any discount given due to any delays in stock arriving for the above reasons.

 

  1. Delivery and Risk

 

7.1        Risk of damage to or loss of the Goods is at the Purchaser’s risk from the earlier of:

 

  • the date and time they are delivered to the Purchaser; or
  • the date and time that title has passed to the Purchaser in accordance with clause 7.6.

 

7.2        ECTL will arrange delivery of the Goods to the place specified in the Quote.

 

7.3        Any date for delivery specified in a Quote is an estimated date only and time shall not be of the essence unless ECTL has agreed in writing to deliver Goods by a specified date. For the avoidance of doubt, the Purchaser will be obliged to accept and pay for Goods even if ECTL does not deliver the Goods by the date estimated in a Quote.

 

7.4        ECTL may deliver by instalment and the Purchaser will accept such instalment deliveries.

 

7.5        If the Purchaser refuses to accept delivery or uplift Goods from ECTL’s premises, ECTL may charge the Purchaser for any resulting extra cost (including storage fees (at the rate then applicable) and transportation costs).

 

7.6        Title to the Goods remains with ECTL and does not pass to the Purchaser until the Purchaser has paid the full amount of all moneys owing to ECTL in relation to the Goods.

 

7.7        While title to the Goods remains with ECTL:

 

  • if the Goods have been delivered to the Purchaser, the Purchaser must store them separately and keep them ascertainable from other goods on its premises;
  • the Purchaser must only use or sell the Goods if expressly permitted in writing by ECTL;
  • ECTL may enter the Purchaser’s premises to remove the Goods and/or take control or possession of the Goods in transit to the Purchaser’s premises;
  • the Purchaser will indemnify ECTL against any costs, losses, damages or claims incurred by ECTL arising as a result of ECTL entering the Purchaser’s premises and using reasonable force to remove Goods;
  • ECTL may resell any of the Goods (in its sole and absolute discretion) and apply the proceeds of sale in reduction of any indebtedness of the Purchaser;
  • the Purchaser must advise ECTL immediately of any action by any third party (including any of its creditors) that may affect ECTL’s interest in the Goods; and
  • the Purchaser must only use or sell the Goods in accordance with clause 7.8 if expressly permitted in writing by ECTL.

 

7.8        Subject to clause 7.7(g), if the Purchaser uses or resells the Goods before title to the Goods passes to the Purchaser, the portion of the proceeds equal to the Purchaser’s indebtedness to ECTL under these Terms shall be immediately paid to ECTL upon receipt by the Purchaser. Until such time as these proceeds have been received by the Purchaser, they will be deemed to be held by the Purchaser (in whatever form) on trust for ECTL. ECTL’s interest is as beneficiary under that trust and shall be the portion of the proceeds which does not exceed the Purchaser’s total indebtedness to ECTL. The balance of the proceeds (if any) shall be the Purchaser’s beneficial interest under that trust. ECTL may at any time by notice in writing require the Purchaser to pay the proceeds into a bank account nominated by ECTL for disbursement in accordance with these Terms.

 

7.9        The Purchaser must check and inspect all Goods delivered for any damage. ECTL shall not be liable for damage which it is not notified of within five days of delivery of the Goods to the destination specified in the Quote. If risk has passed in the Goods to the Purchaser, all claims for damaged goods must be made against the carrier of the Goods in the first instance and any subsequent claim made against ECTL must be accompanied by the claim and the response from the carrier.

 

  1. Limitation of Liability

 

8.1        ECTL will not be liable for any indirect or consequential loss or damage (including without limitation; economic loss, loss of profits or savings), however caused, arising directly or indirectly from these Terms or supplying the Goods.

 

8.2        Notwithstanding anything else in these Terms, and to the maximum extent permitted by law, ECTL’s maximum aggregate liability under or in connection with these Terms, arising from breach of contract, tort (including negligence) or otherwise is limited to the lesser of:

 

  • replacement or repair of the affected Goods;
  • payment of the reasonable cost of replacing or repairing the affected Goods; or
  • the price of the affected Goods paid by the Purchaser.

 

8.3        All claims must be made in writing and are subject to verification or acceptance by ECTL. No claim for any loss, damage or injury arising out of the supply of the Goods by ECTL, may be brought more than five days after the date of delivery of the Goods.

 

8.4        ECTL shall not be liable for any loss, damage or claim arising out of the supply of the Goods unless a claim is formally made within five days after the date of delivery of the Goods.

 

8.5        If the Purchaser or any third party has contributed to the loss of or damage to Goods, ECTL shall only be liable to the proportional extent of its own contribution.

 

  1. Purchaser Indemnity

 

9.1        The Purchaser will indemnify ECTL for any losses or damage (including, for the avoidance of doubt, any indirect or consequential loss (including legal expenses on a solicitor and client basis) arising as a result of:

 

  • any claims or proceedings against ECTL to the extent caused or contributed to by the Purchaser (or any of its agents or employees);
  • arising from a breach of these Terms; or
  • any negligent act or omission by the Purchaser in relation to the delivery/receipt of the Goods.

 

  1. Payment

 

10.1       The Purchaser agrees that:

 

  • ECTL will invoice the Purchaser for the price of the Goods in accordance with the Quote;
  • unless otherwise agreed in a Quote, the Purchaser must make payment to ECTL for the amount stated in ECTL’s invoice by the 20th of the month following the date of the invoice;
  • payment of any amounts owed to ECTL by the Purchaser must be free of any counterclaim, set-off, deduction or any other claim whatsoever;
  • if in ECTL’s sole opinion the Purchaser’s credit worthiness deteriorates before payment of the Goods, ECTL may require full or partial payment at any time or the provision of security in a form acceptable to ECTL. If such payment or security is not provided, ECTL may refuse to supply the Goods to the Purchaser;
  • failure by the Purchaser to pay an amount by its due date shall be a breach of these Terms and ECTL may:
  • without prejudice to any other rights or remedies, charge interest at the rate of 2.5% per calendar month plus GST calculated daily from the due date of the payment until the date payment of the outstanding sum is made. The Purchaser agrees that the interest payable is to cover the costs ECTL incur related to the late payment and is not a penalty charge; and
  • resell any of the Goods (in its sole and absolute discretion) and apply the proceeds of sale in reduction of any indebtedness of the Purchaser.
  • if the Purchaser disputes any invoice, the dispute must be bought to ECTL’s attention in writing within seven (7) days of the dispute arising and the parties will comply with clause 19 of these Terms. Notwithstanding the existence of the dispute, the invoice remains payable in accordance with its terms and default interest will be charged in accordance with clause 10.1(e) unless otherwise agreed in writing by ECTL;
  • any agreed trade discounts will no longer be applicable if the invoice is not paid by the 20th of the month following the date of the invoice; and
  • it will reimburse ECTL for all costs and expenses it incurs in instructing a solicitor and/or a debt collecting agency to recover any amount overdue for payment and such costs and expenses shall incur interest at the rate of 2.5% per calendar month plus GST calculated daily from the date the cost and/or expense is incurred until the date that ECTL is reimbursed for the cost and/or expense.

 

  1. Personal Guarantee of Company Directors

 

11.1       If the Purchaser is a company then its director(s), in consideration of ECTL’s supply of the Goods to the Purchaser, may also be required to sign the Quote in their personal capacity and, if so required, jointly and severally personally undertake as guarantor (Guarantor) to ECTL:

 

  • to guarantee the Purchaser’s payment of any and all moneys owing by the Purchaser to ECTL under or in connection with these Terms; and
  • to indemnify ECTL for all expenses (including legal expenses) against any non-payment as a Guarantor in accordance with this guarantee (Guarantee).

 

This Guarantee is a continuing guarantee and is irrevocable and shall remain in force until all moneys owed by the Purchaser to ECTL under these Terms are paid. The Guarantors are liable under this Guarantee as a principal debtor for all moneys owed by the Purchaser.

 

  1. Force Majeure

 

12.1       Neither party will be liable to the other party for any failure to perform its obligations under these Terms (other than the obligation of the Purchaser to pay an invoice), during the time and to the extent that such performance is prevented, wholly or substantially, by reason of any event beyond its reasonable control that it could not have prevented by the exercise of due diligence and care (Force Majeure Event). The party affected must:

 

  • notify the other party as soon as practicable after the Force Majeure Event occurs and provide full information concerning the Force Majeure Event, including the extent of its inability to perform, an estimate of the time likely to be required to overcome it and the steps the affected party will take to comply with clauses 12.1(b) and (c);
  • use all reasonable endeavours to remedy or mitigate the effect of the Force Majeure Event and minimise the impact on its obligations and the other party; and
  • use all reasonable endeavours to complete its obligations under these Terms as far as practicable.

 

  1. Termination

 

13.1       If any of the events set out in clause 13.2 occur ECTL may, without prejudice to and in addition to any other rights or remedies ECTL may have, by notice to the Purchaser:

 

  • delay delivery of any Goods or progression of any Order until the matter is resolved to ECTL’s satisfaction;
  • suspend or terminate in whole or in part these Terms or any other contract with the Purchaser; or
  • require that all amounts owed to ECTL whether due or not are paid immediately.

 

13.2       The events are:

 

  • any breach of the Purchaser’s obligations (including payment obligations) under these Terms or any other contract with ECTL;
  • a Force Majeure Event prevents ECTL from performing its obligations under these Terms for a continuous period of one month;
  • the Purchaser enters into a scheme of arrangement, composition or compromise with its creditors;
  • the Purchaser, in ECTL’s sole opinion, being unable to pay its debts (including contingent liabilities) as they fall due or is deemed to be unable to pay its debts within the meaning of section 4(1)(a) of the Companies Act 1993;
  • the Purchaser (or a Guarantor) goes into liquidation, bankruptcy or receivership or has a receiver, trustee, administrator or statutory manager appointed over any or all of its assets (or it appears that any of these events is likely to happen);
  • the Purchaser has a receiver or a receiver or manager appointed over the whole or part of its property or undertaking; or
  • the Purchaser becomes bankrupt or commits an act of bankruptcy.

 

13.3       If ECTL exercises its rights under the provisions of clause 13.1:

 

  • the Purchaser shall pay to ECTL the costs ECTL has already incurred in accordance with the Quote including to the date of termination; and
  • the provisions of these Terms which expressly, or by their nature, survive termination or expiry will not be effected.

 

  1. Personal Property Securities Act 1999

 

14.1       The Purchaser acknowledges that these Terms create, and for this purpose the Purchaser grants in favour of ECTL, a security interest in any Goods ECTL supplies to the Purchaser as security for the Purchaser’s payment obligations under these Terms and a financing statement is registrable by ECTL on the Personal Property Securities Register in relation to this security interest.

 

14.2       The Purchaser must sign and deliver any documents and do anything else that ECTL requires to ensure that ECTL has a perfected first ranking security interest in the Goods under the Personal Properties Securities Act 1999 (PPSA).

 

14.3       The Purchaser waives any right to receive a copy of a verification statement under the PPSA and agrees to the extent permitted by law that:

 

  • where ECTL has rights in addition to, or existing separately from 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;
  • sections 114(1)(a), 133 and 134 of the PPSA will not apply; and
  • the Purchaser will have none of the rights referred to in sections 116, 117(1)(c), 119, 120(2), 125, 129 and 131 of the PPSA and it waives its rights to object under section 121 and to redeem under section 132.

 

14.4       The Purchaser will not enter into any transaction that would entitle any other person to register a financing statement in relation to a security interest on the Personal Property Security Register over the Goods in priority to the security interest ECTL has relating to the Goods.

 

  1. Consumer Guarantees Act 1993

 

15.1       The Purchaser agrees that where the Goods are being supplied for the purposes of a business that the Consumer Guarantees Act 1993 will not apply.

 

  1. Warranties

 

16.1       All statutory, express or implied warranties by ECTL including without limitation the implied warranties of merchantability and fitness for any particular purpose are expressly excluded (to the maximum extent permitted by law).

 

  1. Privacy Information

 

17.1       The Purchaser and any Guarantor agree that any information provided to ECTL may be used by ECTL at any time for any purposes connected with ECTL’s business including but not limited to direct marketing, debt collection and credit reporting or assessment. The Purchaser and each Guarantor authorise ECTL to provide such information to any external agency or any party for credit information and assessment purposes and that agency or party are hereby authorised to use and continue to use such information as part of their business services. Any personal information will be held at 8 George Street, Parnell, Auckland or other address notified in writing by ECTL from time to time and the Purchaser and each Guarantor have certain rights of access to their personal information under the Privacy Act 1993.

 

  1. Confidentiality

 

18.1       Neither party may reveal any information concerning these Terms or its subject matter to any third party other than:

 

  • as required by law or the rules of any applicable stock exchange;
  • in good faith and in proper furtherance of the objects of these Terms;
  • to its professional advisors, bankers, financial advisors, and financiers, if those persons undertake to keep the information disclosed confidential;
  • to any of its employees to whom it is necessary to disclose the information if those employees undertake to keep the information confidential; or
  • information already in the public domain through no act or omission by a party to these Terms (Confidential Information).

 

18.2       The Purchaser and each Guarantor must treat as confidential all Confidential Information of ECTL which comes into possession of the Purchaser and each Guarantor, pursuant to or as a result of or in the performance of these Terms, whether such information relates to the business, sales, marketing or technical operations of ECTL, or the intellectual property rights or industrial property rights of ECTL, or otherwise, and may only disclose such details to those employees of the Purchaser who need to know such Confidential Information of ECTL to enable them to carry out their duties to the Purchaser for performance of the obligations of the Purchaser under these Terms.

 

18.3       Subject to clause 18.1, the Purchaser must not, without the written permission of ECTL, copy or cause to be copied or disclose Confidential Information of ECTL to a third party.

 

18.4       The Purchaser agrees that the existence of and terms of these Terms are Confidential Information of ECTL.

 

18.5       The obligations of each party under this clause shall survive the termination of these Terms.

 

  1. Disputes

 

19.1       Subject to the final subclause of this clause, where any question, dispute, or difference arises between the parties concerning or in any way arising out of these Terms or the performance by either party of these Terms, or the circumstances, representations, and conduct giving rise thereto, (Dispute) neither party may commence any court or arbitration proceedings relating to the Dispute unless that party has complied with the procedures set out in this clause.

 

19.2       The party initiating the Dispute (the first party) must provide written notice of the same to the other party (the other party) and nominate in that notice the first party’s representative for the negotiations. The other party must within seven days give written notice to the first party naming the other party’s representative for the negotiations. Each representative nominated will have authority to settle or resolve the Dispute.

 

19.3       If the parties are unable to resolve the Dispute by discussion and negotiation within seven days of receipt of the written notice from the first party, then the parties must immediately refer the Dispute to mediation.

 

19.4       The mediation must be conducted in terms of the LEADR New Zealand Inc. standard mediation agreement. The mediation must be conducted by a mediator and at a fee agreed by the parties.

Failing agreement between the parties, the mediator will be selected and his/her fee determined by the Chair for the time being of LEADR New Zealand Inc.

 

19.5       If the parties fail to resolve the Dispute through mediation within a maximum period of 30 days from the date of the written notice for mediation, then either party may commence or initiate appropriate legal proceedings.

 

19.6       Nothing in this clause will prevent any party from taking immediate steps to seek urgent interlocutory relief before an appropriate court.

 

  1. Copyright and Intellectual Property

 

20.1       ECTL owns and has copyright in all Goods that it has designed and produced including, but not limited to, all drawings, specifications, models, photographs and documents.

 

  1. Unsolicited Electronic Messages Act 2007

 

21.1       Under the Unsolicited Electronic Messages Act 2007, the Purchaser consents to receiving commercial emails from ECTL. Consent can either be explicit, inferred or deemed. ECTL will infer that the Purchaser has given its consent to receive commercial emails from time to time unless it informs ECTL otherwise by letter or email. The email address for unsubscribing to commercial emails is info@euroceramics.co.nz.

 

  1. General

22.1       The Purchaser agrees that time is of the essence in respect of its obligations to ECTL.

 

22.2       ECTL will not be prevented from enforcing any of its rights or remedies under these Terms because on an earlier occasion it failed to, or delayed in, enforcing those rights and remedies.

 

22.3       All notices to be given pursuant to these Terms will be given in accordance with sections 185 to 189 of the Personal Properties Securities Act 1999.

 

22.4       Subject to clause 19, to the extent permitted by law, ECTL may issue proceedings in any jurisdiction it chooses. If ECTL is not permitted by law to choose in its sole discretion, the parties agree the Courts of New Zealand shall have the non-exclusive jurisdiction in any proceedings relating to these Terms. The law that governs these Terms is New Zealand law.

 

22.5       Any provision of these Terms that is held to be invalid or unenforceable for any reason shall be severed from and shall not affect the remaining provisions of these Terms.

 

22.6       The Purchaser agrees that these Terms express the entire understanding between ECTL and the Purchaser and that there have been no representations made by or on behalf of ECTL that have been relied upon by the Purchaser that are not contained in these Terms.

 

22.7       The Purchaser shall not assign all or any of its rights or obligations under these Terms without ECTL’s prior written consent.