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Privacy Statement
Please READ carefully
The Customer agrees that the Supplier may at any time collect, hold and use the Customers’ personal information in accordance with the Privacy Act 2020 and the Fletcher Building Privacy Policy (available at https://fletcherbuilding.com/privacy-statement/). These clauses summarise key information in the Fletcher Building Privacy Policy. The Privacy Policy may be updated from time to time by publishing the updated policy online. Any changes apply to all personal information collected before and after the publication date.
The Customer acknowledges that while they are not required to provide any personal information, the Supplier may not be able to open the account or provide certain services to the Customer without the requested information.
The Supplier will only collect personal information for a purpose connected with its business including (but not limited to):
The Supplier may collect personal information about the Customer from a third party if authorised. The Supplier may also collect personal information from, and share personal information with, any person appropriate for the purposes set out in the Fletcher Building Privacy Policy, including Related Companies, trade references, marketing and analytics agencies and other third parties.
The Supplier may use the services of credit and markets reporting and debt collection agencies on an ongoing basis. The Supplier may disclose the Customer’s credit information (including default and repayment history information) to credit reporters and debt collectors, who may hold that information on their systems and use it to provide their services.
Personal information collected by the Supplier will be held at 810 Great South Road, Penrose, Auckland or “in the cloud” in secured databases on our behalf by third parties. The use of these services and transfer of personal information overseas (if applicable) will not relieve the Supplier of any obligations under the Privacy Act 2020 or the Fletcher Building Privacy Policy.
The Customer can request access to (and request correction and deletion of) their personal information by contacting the Privacy Officer at 810 Great South Road, Penrose, Auckland.
The Customer agrees and confirms that if they provide the Supplier with personal information about another person, that that person has authorised the collection, use and disclosure of their personal information in accordance with this clause and has been informed of their rights to access and request correction of their personal information.
Supplier Terms of Sale
INCORPORATION
The Customer acknowledges that these Supplier Terms of Sale are to be read in conjunction with Fletcher Building Terms of Credit, and together with the Personal Guarantee, Privacy Policy, and Acknowledgement of Transaction Documents, form the Transaction Documents
1. GENERAL
1.1. For the purpose of these conditions of sale, the “Customer” is named in the attached document, “Goods” means all the particle board, medium density fibreboard, hardboard, softboard, melamine and other panels and laminates, solid surfaces, mouldings, doors, jambs and associated fittings, adhesives, abrasives, fittings, fastenings, hardware, machinery, plumbing, coatings, steel, lighting, timber and joinery, wood finishes, flooring, appliances, and other goods supplied by the Supplier and, in respect of each order of Goods from the Customer accepted by the Supplier, means the Goods described in the invoice issued by the Supplier in respect of the relevant order, and the “Supplier” means Fletcher Building Products Limited, trading as Laminex New Zealand.
1.2. If the Customer orders Goods, the Customer will be deemed to have accepted these Terms. Any variation to these Terms must be expressly agreed in writing.
2. ORDER CANCELLATION
2.1. Cancellation of an order for Goods manufactured by the Supplier may only be accepted by the Supplier if:
(a) the Supplier has received written notice of cancellation prior to the commencement of manufacture of the Goods; or
(b) the Goods form part of the Supplier’s stock in trade and are not custom made
2.2. Cancellation of an order for Goods not manufactured by the Supplier may only be accepted by the Supplier if:
(a) the price of the Goods has increased by more than 5% between the date of the order and the date of delivery of the Goods; and
(b) the Supplier has received written notice of cancellation before delivery of the Goods and within seven days of the increase in price.
3. PRICE
3.1. The price of the Goods will be the price contained in the Supplier’s price list current on the date the Goods are delivered to the Customer, unless otherwise expressly agreed in writing by the Supplier.
3.2. The price of the Goods excludes any amount payable in respect of goods and services tax (“GST”) (if any), which will be paid by the Customer in addition to the price.
4. DELIVERY
4.1. Unless otherwise agreed, the Supplier will arrange delivery of the Goods. Delivery may be by instalments.
4.2. Unless otherwise agreed by the Supplier prior to delivery, the price of the Goods excludes the costs of delivery of the Goods, which will be paid by the Customer in addition to the price.
4.3. If the price of Goods includes the costs of delivery, the following conditions apply, unless otherwise agreed by the Supplier prior to delivery:
(a) in respect of Goods delivered to a delivery point in New Zealand, the price of the Goods includes the costs of delivery of the Goods by the usual methods of transportation used by the Supplier, between the hours of 7.30am and 5pm Monday to Friday (excluding statutory holidays). The Supplier may, if the Customer requests, arrange Goods to be delivered by other means or at other times but will be entitled to charge the Customer for any additional costs the Supplier may incur;
(b) in respect of Goods delivered to a delivery point outside New Zealand, the price of the goods includes the costs of delivery of the usual route and methods of transportation used by the Supplier. The Supplier may, if the Customer requests, arrange Goods to be delivered by other means but will be entitled to charge the Customer for any additional costs the Supplier may incur.
4.4. The Supplier will endeavour to have Goods delivered on the agreed delivery dates but will not be held liable for late delivery. Late delivery does not entitle the Customer to cancel any order or part order.
4.5. Delivery will be deemed to have been made when Goods arrive at the delivery point agreed with the Customer or if the Customer is to arrange delivery of the Goods, when the Goods are available for collection by the Customer.The Customer or its authorised representative must sign the Supplier’s copy of the delivery docket or packing slip before the Goods are unloaded or collected.
4.6
(a) All claims for errors in delivery where it is the Supplier’s error and is valid and notified within 14 days from invoice date. A full credit will be raised at the cost of the Supplier. If outside the time frame, charges will apply. Refer clause 5.2.
(b) All other claims for damaged and missing in transit/POD endorsements if valid must be made to the Supplier within two days of delivery in respect of goods delivered by courier and within seven days of delivery in respect of Goods delivered by any other means or Goods collected by the Customer, in accordance with the procedures advised by the Supplier from time to time. If valid, claims made within the time frames a full credit will be raised at the cost of the Supplier. If outside of the time frames, charges will apply. Refer clause 5.2.
4.7 Where the Supplier arranges delivery of the Goods, the Customer will ensure, at its own cost, that all agreed delivery points have the mechanical means and labour to unload the Goods promptly and have suitable access and area for unloading.
4.8 If the Customer fails or refuses to take delivery of any Goods at an agreed delivery time, the Supplier may (without limiting any other rights or remedies the Supplier may have) charge the Customer for any expenses or additional costs incurred by the Supplier as a result of delay.
5. RETURNS
5.1. Subject to clauses 4.6, 6.4 and 6.5, Goods may only be returned to the Supplier within 14 days of the date of invoice for those Goods if:
(a) the Goods form part of the Supplier’s stock in trade and are not custom made; and
(b) the condition of the Goods as not deteriorated, in the Supplier’s opinion, and subject to the following:
(c) the Customer pays for the cost of returning the Goods; and
(d) the Customer provides evidence of purchase from the Supplier to the Supplier’s satisfaction; and
(e) the Customer has sought prior approval from the Supplier for surplus to requirement Goods returns.
5.2. Where Goods are returned in accordance with clause 5.1, the Supplier will give a credit to the Customer of between 60% and 90% of the price of the Goods (at the date the Goods were delivered to the Customer).
6. WARRANTIES
6.1. The Supplier warrants that Goods manufactured by the Supplier will be free from defects in materials or workmanship and will substantially conform with the Supplier’s specifications. BUT this warranty will not apply:
(a) unless a written claim (other than a claim covered by clause 4.6, which will be dealt with under clause 4.6) is received by the Supplier within six months of delivery of the Goods to which the claim relates;
(b) unless the Supplier is given the opportunity to inspect the Goods immediately after the defect is discovered;
(c) if the Goods have been repaired by any person not authorised by the Supplier to do such repairs;
(d) if the Goods are used for any purpose other than the purpose for which they are intended;
(e) if the Goods have been modified or incorrectly stored, handled, installed or maintained;
(f) if the instructions as to use, installation or maintenance of the Goods as contained in current product data produced by the Supplier have not been adhered to (it being the responsibility of the Customer to obtain that information);
(g) to any Goods which have been sold by the Supplier as seconds, downgrades or otherwise outside the standard specifications for those Goods.
6.2. If the Customer is a consumer under the Consumer Guarantees Act 1993 (“CGA”) and/or the Fair Trading Act 1986 (“FTA”)
(a) and is acquiring or holding itself out as acquiring the Goods for a business purpose, the CGA will not apply; and
(b) Sections 9, 12A, 13 & 14 of the FTA will not apply; and
(c) the Supplier does not undertake that facilities for repair and parts for the Goods will be available.
6.3. If the Customer is acquiring the Goods for the purpose of re-supplying them (in the form in which they were delivered or otherwise) in trade and that re-supply is governed by New Zealand law, the Customer will:
(a) include in its conditions of sale a clause to the effect that the FTA & CGA will not apply where a customer of the Customer acquires or holds itself out as acquiring the Goods for a business purpose under the CGA & FTA;
(b) notify its customers of the effect of clause 6.3(a);
(c) take reasonable action to notify its customers at or before the time the Goods are supplied to such customers that the Supplier does not undertake that repair facilities and parts will be available for the Goods; and
(d) indemnify the Supplier against all losses, costs, damages or liabilities which the Supplier may incur or be liable to pay arising out of the Customer’s failure to take the action required under this clause 6.3.
6.4. Subject to clause 6.5 and to any express warranties given by the Supplier to the Customer in writing:
(a) all warranties (other than the warranty contained in clause 6.1), descriptions, representations, terms and conditions, advice or information (other than these Supplier Terms of Sale) whether implied by law, trade, custom or otherwise are, and all other liability of the Supplier, whether in tort (including negligence), contract or otherwise is, expressly excluded to the fullest extent permitted by law;
7. CONTAINERS AND PACKAGING
7.1. When a returnable container, case or crate is used for the delivery of Goods, the Customer will pay for the cost of the container case, or crate. The cost will be noted on the relevant invoice, and will be credited when the container, case or crate is returned (at the Customer’s cost) to the Supplier (at the premises from which the Goods were despatched or collected). All containers, cases or crates used for the delivery of the Goods will remain the property of the Supplier.
7.2. When a non-returnable container, case or crate is used for the delivery of Goods, the Customer will be responsible for disposing, at its own cost, of all materials used in the packaging or delivery of Goods.
8. TRADE MARKS
8.1. The Customer will use the Supplier’s trade marks in accordance with the terms and conditions advised by the Supplier from time to time.
9. CUSTOMER ONLINE ACCOUNTS AND ONLINE ORDERING
9.1. The Customer will ensure the Supplier is notified of any change of details of authorised users and the authorised users read and acknowledge they understand the content of the conditions of use for Online Users, detailed on the Supplier’s website.
10. GOVERNING LAW
10.1. These Terms will be governed by the laws of New Zealand. The Customer irrevocably agrees to submit to the non-exclusive jurisdiction of the New Zealand Courts.
10.2. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
11. MISCELLANEOUS
11.1. If at any time the Supplier does not enforce any of these conditions or grants the Customer time or other indulgence, the Supplier will not be construed as having waived that condition or its rights to later enforce that or any other condition.
11.2 Where any provision of these conditions is rendered void, unenforceable or otherwise ineffective by operation of law that will not affect the enforceability or effectiveness of any other provision of these conditions
Fletcher Building Terms of Credit
Signing Authority
Any person agreeing to these Terms of Credit and signing the Agreement to Execute on behalf of the Customer confirms that they are expressly authorised by the Customer to agree to these Terms of Credit and to sign the Acknowledgement of Transaction Documents which will bind the Customer (including where the Customer is a company, partnership, joint venture or a trust).
The Customer must return the signed copy of the Acknowledgement of Transaction Documents and all the Transaction Documents (including these Terms of Credit and any Guarantee) to the Supplier by scanning and emailing the documents to onlinecreditapplication@fb.co.nz. The Customer must return by post the signed originals of the Transaction Documents as directed. Note, the return to the Supplier of the Transaction Documents by scanning and emailing constitutes a binding agreement and guarantee, irrespective of receipt by the Supplier of the original documents.
Payment
Unless otherwise agreed in writing, the terms of payment are payment in full (including, without limitation, all G.S.T. and other value added tax) in cleared funds on the 20th day of the month following delivery of the Goods (including where Goods are delivered by instalments).
The Customer will pay to the Supplier all G.S.T. or other value added tax payable on the Goods supplied.
If the Customer fails to make any payment to the Supplier by the due date, the Customer will be liable to pay to the Supplier at the Supplier’s discretion (and without prejudice to any other rights or remedies the Supplier may have) on demand, default interest at the rate of 1.5% per month annum calculated on a daily basis on all monies outstanding from the date that payment is due until the date payment is received in full by the Supplier.
The Customer will also be liable to pay all of the Supplier’s costs and expenses (including legal costs calculated as between solicitor and own client) in enforcing these terms and conditions. Base collection costs incurred in recovering outstanding monies will be the Customer’s liability and will be charged on a scale basis per table 1 below:
Table 1:
|
Table 1: |
$100 to $5,000 |
20% |
|
|
$5,001 to $10,000 |
15% |
|
|
$10,001 to $50,000 |
10% |
|
|
$50,001 or more |
5% |
The Supplier may refuse to deliver Goods if there are any outstanding moneys or other obligations owing to the Supplier or any Related Company by the Customer or if the Customer has breached any of these Terms of Credit.
The Customer will make all payments due to the Supplier whether in respect of the price of the Goods or otherwise, in full without deductions of any nature (whether by way of set off, counterclaim or other equitable or lawful claim or otherwise). Any payment received by the Supplier (or any amount withheld by the Supplier (whether by way of set off, counterclaim or other equitable or lawful claim or otherwise) may be applied in reduction of any amount owing to the Supplier or any Related Company, as determined by the Supplier.
The Supplier may deduct or withhold any amount (whether by way of set off, counterclaim or other equitable or lawful claim or otherwise) from any money owing by the Supplier or any Related Company to the Customer on any account whatsoever.
Ownership and risk
Ownership of the Goods supplied will remain with the Supplier and will not pass to the Customer until all amounts owing by the Customer to the Supplier in respect of the Goods or otherwise have been paid for in full and all the Customer’s other obligations to the Supplier have been met. Until ownership of the Goods passes to the Customer, the Customer agrees as follows:
(a) The Customer holds the Goods on trust for the Supplier as bailee.
(b) The Customer will store the Goods safely at the Customer’s cost so that they can be readily identified as belonging to the Supplier and shall not relinquish possession or remove the Goods from the Customer’s premises except in the ordinary course of business.
(c) The Customer will only use or sell the Goods in the ordinary course of business. This authority is revoked immediately if a default or Enforcement Event occurs.
(d) The Customer must keep full and complete records of the Goods and make such records available to the Supplier upon the Supplier’s reasonable request.
(e) The Customer will disclose to the Supplier all information reasonably required regarding the Goods and any on-sale of the Goods by the Customer.
(f) The Customer will immediately inform the Supplier of any attempt by any third party to exercise remedies against the Goods or of any circumstances that might jeopardise the Supplier’s rights or interest in the Goods.
(g) The Customer gives the Supplier the right to inspect the Goods or any part of them at all reasonable times.
(h) The Customer must not do or allow to be done anything that might contribute to a deterioration in the value of the Goods or otherwise adversely affect the Supplier’s rights or interest in the Goods.
(i) The Customer must return the Goods if requested to do so by the Supplier following non-payment of any amount owing by the Customer to the Supplier or any Related Company or non-fulfilment of any of the Customer’s other obligations to the Supplier or any Related Company, without limiting any other right the Supplier or Related Company may have.
If the Goods have not been paid for in full by the due payment date or are at risk (as defined in PPSA), the Supplier or its agent(s) may (in addition to the Supplier’s other rights but subject to the Credit Contracts and Consumer Finance Act 2003) enter the Customer’s premises (or other premises to which the Customer has access and where the Goods are stored or where the Supplier reasonably believes the Goods are stored) at any time, without notice, and search for and recover the Goods and may resell the Goods or retain the Goods for its own benefit, without incurring any liability to the Customer or any person claiming through the Customer. The Customer may not revoke the permission granted in this sub-clause.
Where the Customer provides material to the Supplier to be processed, then the Supplier will have a general and particular lien in respect of those goods (of which the aforementioned material may be a part) for all sums due at any time from the Customer to the Supplier. The Supplier may sell or dispose of such goods at the Customer’s expense and without liability to the Customer and may apply the proceeds in or towards such sums.
Notwithstanding that ownership of any Goods may remain with the Supplier all risk in respect of such Goods will pass to the Customer upon delivery. The Customer will insure (and keep insured) the Goods for full replacement value against all risks of loss or damage in the Customer’s and the Supplier’s name for the parties’ respective interests. The Supplier may, at any time, request a copy of the policy of insurance and the Customer will promptly provide the same to the Supplier.
The Customer will remain liable for all Goods which are ordered by the Customer notwithstanding that the Customer has not taken delivery of the Goods and/or has changed its mind as to whether the Customer wishes for those Goods to be delivered to it. If the Customer fails to take delivery of the Goods within 30 days of the date that the Goods are available for delivery then the Supplier will, at its sole discretion, sell and/or dispose of the Goods in any manner that it sees fit. It will also recover from the Customer the difference in the price the Supplier would have received from the Customer and the price that the Supplier received from the Goods disposal together with interest and costs, including the costs of recovery, in accordance with these Terms of Credit.
General Security Interest
To secure payment, first, of the purchase price for Goods until such amount is paid in full, and secondly, of all the other Secured Money, and to secure the performance of all other obligations owing by the Customer to the Supplier and any Related Company, the Customer grants the Supplier a Security Interest in:
a) A purchase money security interest (as defined in the PPSA) over all Goods supplied (and their proceeds); and
b) A general security interest over all of the Customer’s personal property (as defined in the PPSA), and a fixed charge over all of the Customer’s real property, wherever situated (such personal property and real property is, together, the “Secured Property”).
The Customer must not consent to or enter into any agreement which permits any supplier or other person to register a Security Interest in respect of any Collateral subject to the Supplier’s Security Interest, including, without limitation, the Goods (whether an accession or otherwise), which ranks in priority to the Supplier’s rights as first ranking security holder.
An “Enforcement Event” occurs if:
(a) The Customer fails to pay, or in the Supplier’s opinion is likely to fail to pay, any amount of the Secured Money when due; or
(b) The Customer breaches, or in the Supplier’s opinion is likely to breach, any non-monetary obligations owing to the Supplier or any Related Company; or
(c) The Customer ceases or threatens to cease business; or The Customer is unable to pay any debts as they fall due or is declared insolvent or bankrupt; or The Customer makes an arrangement or compromise with creditors; or any step is made to dissolve it; or an encumbrancer takes possession of any Goods or other Collateral; or a liquidator, manager, administrator, or receiver (or any similar person) is appointed to the Customer or any of the Customer’s property; or any analogous event occurs; or
(d) The Customer’s ownership or effective control is transferred, or in the Supplier’s opinion the nature of the Customer’s business is materially altered; or
(e) any Guarantor breaches any obligations owing to the Supplier
If an Enforcement Event occurs then (in addition to and without prejudice to any other remedies the Supplier may have):
(a) Each Security Interest created under these Terms of Credit will become immediately enforceable; and
(b) All of the Secured Money will be due and payable immediately; and
(c) the Supplier may at any time appoint in writing one or more Receivers (jointly and severally) in respect of any Secured Property on terms which the Supplier considers to be necessary or expedient; and
(d) The remuneration of a Receiver may be fixed by the Supplier but is payable by the Customer and forms part of the Secured Money. To the fullest extent permitted by law a Receiver will be the agent of the Customer and the Customer will be solely responsible for the Receiver’s acts and defaults; and
(e) The Supplier may remove any Receiver appointed by providing that Receiver with written notice that the Receiver’s appointment has ceased, upon which the Receiver will immediately cease to act; and
(f) The Customer irrevocably appoints and ratifies the actions or omissions of the Supplier each Receiver, each nominee of the Supplier in whose name the Secured Money is registered and each duly authorized officer of the Supplier severally to be The Customer’s attorney with full power to appoint substitutes and to sub-delegate) on behalf of the Customer and in the Customer’s name or otherwise and at the Customer’s expense to complete, execute and otherwise perfect all assignments, Security Interests and other agreements and documents, and generally to do all other things which the attorney may consider necessary or expedient to secure the full benefit to the Supplier of its rights and intended rights under these Terms of Credit, Transaction Documents and any other contract with the Supplier to secure payment of the Secured Money and performance of the Customer’s obligations to the Supplier and any other incidental matters; and
(g) The Supplier or a Receiver may take possession of the Goods and any other Secured Property (including any Goods that have become an accession under the PPSA) and may dispose of them or retain them for the Supplier’s own benefit and for that purpose the Supplier may, subject to the Credit Contracts and Consumer Finance Act 2003, without notice, enter directly or by its agents on any premises where the Supplier believes Goods may be stored, without in any way being liable to any person. In respect of other Secured Property the Supplier may in the name of the Customer or otherwise, at any time do anything and exercise any right which the Customer could do or exercise in relation to the Secured Property including the right to take possession of, demand, collect and get in any Secured Property, cancelling any contracts, borrowing any money, taking any proceedings in the Customer’s name and settling any disputes or proceedings; and
(h) A certificate signed by the Supplier as to an amount due by the Customer shall be conclusive evidence for all purposes, including for any proceedings; and
(i) The Supplier may suspend all payment credit arrangements offered to the Customer by the Supplier immediately, without notice, until the Enforcement Event is remedied to the Supplier’s satisfaction; and
(j) The Supplier may suspend or cancel (in whole or in part) any outstanding order from the Customer to it or all or any part of any contract or contracts with the Customer which remain unperformed; and
(k) the Supplier may require any future orders from the Customer to be paid in cash in full on placement of such order by the Customer.
The Customer acknowledges that it has received value as at the date of first delivery of Goods under these Terms of Credit and that nothing in these Terms of Credit is an agreement that a Security Interest created herein attaches at a later time than the time specified in section 40(1) of the PPSA, or an agreement to subordinate a Security Interest under these Terms of Credit in favour of any person.
Each Security Interest created under these Terms of Credit is a continuing security, notwithstanding any intermediate payments or settlements of accounts or anything else and is in addition to, and is not to be merged with, any other security or guarantee expressed or intended to be security for any Secured Money or any other obligations owing by the Customer to the Supplier.
Time is of the essence in respect of the Customer’s obligations under these Terms of Credit. However, no Security Interest created under these Terms of Credit is discharged, nor is the Customer’s obligations affected by any time, indulgence, waiver or consent at any time given to it or any other person; any amendment to, or the enforcement of or failure to enforce, these Terms of Credit or any other agreement; the insolvency, bankruptcy, liquidation, administration, amalgamation, change in status or reorganisation of the Customer or any other person; or anything else whatsoever.
The Supplier does not (and will not be deemed to) undertake any of the Customer’s obligations in respect of the Customer’s property (including any Secured Property) by virtue of these Terms of Credit.
The Supplier is not required to marshal, enforce or apply under any Security Interest, guarantee or other entitlement held by the Supplier at any time or any money or property that it at any time holds or is entitled to receive.
The Customer’s obligations and waivers
The Customer must not change its name, address or contact details without providing the Supplier with at least 30 days’ prior written notice. The Customer must immediately notify the Supplier if the Customer intends to, or becomes aware of any step to, appoint an administrator or liquidator.
The Customer will notify the Supplier in writing of any change in legal entity and the Customer will complete a new set of Transaction Documents for the new legal entity if requested by the Supplier.
The Customer waives its rights under the PPSA to receive a copy of any verification statement, financing statement or financing change statement and unconditionally and irrevocably agrees that:
(a) to the maximum extent permitted, the Customer will have no rights under or by reference to sections 114(1)(a), 116, 120(2), 121, 125, 129, 131 133 and 134 of the PPSA;
(b) where the Supplier 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, those rights will not be limited by section 109; and
(c) the Customer will not consent to or enter into any agreement which permits any supplier or other person to register a Security Interest in respect of the Goods (whether an accession or otherwise).
The Customer must not:
(a) give to the Supplier a written demand, or allow any other person to give to the Supplier a written demand, requiring the Supplier to register a financing change statement; or
(b) lodge a change demand or allow any other person to lodge a change demand, in each case in relation to a financing statement registered by the Supplier under the PPSA.
(c) enter into or accept, or allow any other person to enter into or accept, a financing change statement in relation to a financing statement registered by reference to such other person under the PPSA.
The Customer will upon demand pay all of the Supplier’s expenses and legal costs (including costs on a solicitor client basis) in relation to or in connection with the registration and maintenance of the Supplier’s Security Interest.
Security agency
From the date these Terms of Credit take effect, the Supplier will hold the benefit of all security created hereunder for all Related Companies (and, in such capacity, the Supplier is the Security Agent).
The Customer accepts and acknowledges that the Security Agent has been appointed by each Related Company to hold all security granted by the Customer on behalf of all Related Companies, and to exercise all powers, rights and discretions on behalf of all Related Companies (including without limitation, rights relating to the security created under these Terms of Credit, the Supplier’s Terms of Sale and under any related or ancillary document).
The Customer will not be concerned to enquire whether any instructions have been given to any such Security Agent by the Supplier and, as between the Customer and any such Security Agent, all actions taken by such Security Agent under these Terms of Credit, the Supplier’s Terms of Sale and any related or ancillary document will be deemed to be authorised.
Supporting guarantee
At the Supplier’s request, the Customer must procure that a Guarantee in the form attached as one of the Transaction Documents is executed and returned to the Supplier as directed as soon as possible, on the terms set out in the Guarantee (including as to seeking or waiving independent legal advice).
The Customer acknowledges and agrees that, to the extent that any Guarantee of any Secured Money or any other obligations owing by the Customer to the Supplier is in existence prior to the date that these Terms of Credit come into effect, the Customer will procure that such Guarantee will remain in full force and effect in respect of such Secured Money or other obligations.
Errors or Omissions
Clerical errors or omissions, whether in computation or otherwise in any quotation acknowledgements or invoice, will be subject to correction.
Compliance
The Customer will be solely responsible for obtaining any necessary permits under and for compliance with all legislation, regulations, by-laws or rules having the force of law in connection with the installation and operation of the Goods.
Indemnity from the Customer
The Customer hereby indemnifies and undertakes to keep the Supplier, its officers, employees and agents, each Receiver and any attorney appointed under these Terms of Credit (the “Indemnified Party”) at all times fully and effectively indemnified against all losses (including but not limited to direct loss, indirect loss, loss of profits (whether direct or indirect), consequential loss, liabilities, penalties, damages, claims, demands, actions, costs (including legal costs on a solicitor client basis), charges and expenses which the Indemnified Party (or any of them), may incur, or which may be made against the Indemnified Party (or any one of them) as a result of or in relation to:
(a) any act, omission, neglect or default by the Customer or any subsequent purchasers of Goods manufactured and/or supplied by the Supplier; or
(b) any breach by the Customer of any of the Customer’s obligations under these Terms of Credit or any warranty given by the Customer; or
(c) anything done or omitted to be done by the Supplier and/or the Receiver and/or attorney in the exercise of or purported exercise of rights under these Terms of Credit or conferred on the Supplier by law (and whether or not arising out of the Supplier’s Security Interest in any of the Secured Property); or
(d) any act or omission by the Customer which breaches or might breach any health and safety or environmental law.
The Supplier’s Liability
To the fullest extent permitted by law, the Supplier will not be liable for:
(a) loss caused by any factor beyond the Supplier’s control;
(b) failure to deliver to the Customer by any specified dates unless expressly agreed otherwise in this or any other agreement;
(c) damage from misuse, accident, neglect or improper operation of the Goods supplied;
(d) any Goods to be treated as becoming wastage or scrap;
(e) the Customer testing the Goods unless expressly agreed to and authorised by the Supplier;
(f) the loss of or damage to any of the Customer’s chattels left within the Supplier’s possession or control (whether such loss or damage results from the Supplier’s negligence or default or otherwise howsoever);
(g) the loss of or damage to Goods while in transit (whether such loss or damage results from the Supplier’s negligence or default or otherwise howsoever) unless expressly agreed otherwise;
(h) deterioration of Goods as a result of exposure to the elements, after delivery;
(i) any act or omission by the Customer, subcontractor or any third party, including but not limited to maintenance, installation, modification of adjustments of the Goods supplied;
(j) Goods that have been tampered with or modified by the Customer;
(k) Goods that have been stored in an improper manner by the Customer.
To the fullest extent permitted by law, the Supplier has no liability (whether statutory, in contract or tort (including negligence), (or howsoever)) to the Customer or any of the Customer’s agents or employees for any special damage, direct loss, indirect loss, loss of profits (whether direct or indirect), economic loss of any kind (including loss of profits and expectation loss),consequential loss or any other loss or costs (including legal costs on a solicitor client basis) caused or contributed to by the Supplier or any of its agents or employees in respect of any Goods, credit or services supplied.
To the fullest extent permitted by law the Supplier excludes its liability for business-to-business transactions under the Consumer Guarantees Act, Fair Trading Act, in particular sections 9,12A,13 and 14 of the Fair Trading Act and any other applicable consumer law. Where the Customer is a “Consumer” under the provisions of the Consumer Guarantees Act, the Consumer Guarantees Act is to apply.
Subject to the above and to any express warranties given by the Supplier or any other manufacturer of the Goods in writing, all conditions, warranties, descriptions, representations and statements as to fitness or suitability for purpose, workmanship, tolerance to any conditions, merchantability or otherwise, advice, recommendation or information express or implied are expressly excluded to the fullest extent permitted by law.
To the fullest extent permitted by law, the Supplier has no responsibility or liability for any dangerous good(s) or any contaminant, ozone depleting or hazardous substance in or emitted by any Goods.
Subject to any limitation on the Supplier’s liability which may be expressed within these Terms of Credit, other Transaction Documents or which may be permitted by operation of the law, the Supplier’s total liability whether in tort (including negligence), contract or otherwise for any loss or damage or injury arising directly or indirectly from any defect in or non-compliance of any Goods or any other breach of the Supplier’s obligations is, limited to, at the Supplier’s option:
(a) replacing, at the Supplier’s premises, the relevant Goods; or
(b) refunding the sale price of the relevant Goods; or
(c) repairing the Goods; or
(d) paying the actual loss or damage suffered by the Customer.
No claim based on defective Goods will be allowed unless:
(a) the claim is notified to the Supplier within seven days of delivery to the Customer; and
(b) the Supplier is given a reasonable opportunity to investigate the claim.
In respect of defective Goods not manufactured by the Supplier, the Supplier will in no event be liable to pay to the Customer any amount in excess of such amount (if any) as the Supplier has received from its supplier in respect of the Goods.
The Supplier’s liability for shortages in quantity and loss consequential to shortages in quantity is, subject to the application of the Consumer Guarantees Act 1993, limited to making up shortages. No claim for shortages in quantity will be allowed unless:
(a) the claim is notified to the Supplier within seven days of receipt of the Goods by the Customer; and
(b) the Supplier is given reasonable opportunity and time to investigate the claim.
Right to Caveat and Register a Mortgage
The Customer and/or the Guarantor(s) charge in favour of the Supplier, as security for the Customer’s obligations to the Supplier, all rights, title and interest (whether a beneficial or legal interest owned jointly or alone, and as trustee or otherwise) in any property held by the Customer and/or the Guarantor(s) either alone or jointly with anyone or acquired by the Customer and/or the Guarantor(s) now or in the future.
For the purposes of this clause, ‘property’ shall include property owned by the beneficiaries of any trust where Goods have been supplied to the property and may have become affixed to and/or formed part of any structure on that property (which may include above or below ground services to the property). In signing these Terms of Credit the trustee(s) acknowledge that they have the express authority to bind the beneficiaries to this obligation, and that the provisions of Section 24 Property Law Act 2007 (or its amendments) are satisfied, and that the Supplier is not required to make any further investigation as to the trustee(s) authorisation to bind the beneficiaries to this obligation.
The creation of the charge is the creation of an agreement to mortgage which shall mean that at the Supplier’s discretion it shall be entitled to register a mortgage (“the Mortgage”), such Mortgage to be in the form of an All Obligations Auckland District Law Society Memorandum of General Terms and Condition (or at the Supplier’s discretion, any such equivalent form). The Customer and/or Guarantor(s) irrevocably appoints the Supplier as its lawful attorney for the purposes of executing and registering such Mortgage.
The Customer and/or Guarantor(s) also specifically authorises the Supplier to lodge a caveat against any such property or land owned by the Guarantor(s) (whether owned alone or jointly or as trustees now or in the future).
Assignment
The Supplier may at any time assign or transfer to any other person (including without limitation to a Related Company, whether or not acting as a Security Agent or security trustee of the security created under these Terms of Credit) all or any part of the Supplier’s rights, remedies and obligations under these terms and any related or ancillary document including the other Transaction Documents without the Customer’s consent. Each of the Supplier’s assignees and transferees will have the same rights and remedies against the Customer as the Supplier has under these Terms of Credit and the other Transaction Documents. The Customer must not assign or transfer any of the Customer’s rights or obligations under these Terms of Credit or the other Transaction Documents.
Privacy Act
The Customer agrees that the Supplier may at any time collect, hold and use the Customers’ personal information in accordance with the Privacy Act 2020 and the Fletcher Building Privacy Policy (available at https://fletcherbuilding.com/privacy-statement/). These clauses summarise key information in the Fletcher Building Privacy Policy. The Privacy Policy may be updated from time to time by publishing the updated policy online. Any changes apply to all personal information collected before and after the publication date.
The Customer acknowledges that while they are not required to provide any personal information, the Supplier may not be able to open the account or provide certain services to the Customer without the requested information.
The Supplier will only collect personal information for a purpose connected with its business including (but not limited to):
The Supplier may collect personal information about the Customer from a third party if authorised. The Supplier may also collect personal information from, and share personal information with, any person appropriate for the purposes set out in the Fletcher Building Privacy Policy, including Related Companies, trade references, marketing and analytics agencies and other third parties.
The Supplier may use the services of credit and markets reporting and debt collection agencies on an ongoing basis. The Supplier may disclose the Customer’s credit information (including default and repayment history information) to credit reporters and debt collectors, who may hold that information on their systems and use it to provide their services.
Personal information collected by the Supplier will be held at 810 Great South Road, Penrose, Auckland or “in the cloud” in secured databases on our behalf by third parties. The use of these services and transfer of personal information overseas (if applicable) will not relieve the Supplier of any obligations under the Privacy Act 2020 or the Fletcher Building Privacy Policy.
The Customer can request access to (and request correction and deletion of) their personal information by contacting the Privacy Officer at 810 Great South Road, Penrose, Auckland.
The Customer agrees and confirms that if they provide the Supplier with personal information about another person, that that person has authorised the collection, use and disclosure of their personal information in accordance with this clause and has been informed of their rights to access and request correction of their personal information.
Agreement Precedence
These Terms of Credit will prevail against the Supplier’s Terms of Sale to the extent of any inconsistency unless otherwise determined by the Supplier at its sole discretion.
Entire Agreement
These Terms of Credit, together with the other Transaction Documents, records the entire understanding and agreement of the parties relating to the supply of Goods and credit by the Supplier. These Terms of Credit, together with the other Transaction Documents, supersede all previous understandings or agreements (whether written or oral or both) between the parties relating to these matters.
Governing Law
These Terms of Credit will be governed by the laws of New Zealand. The Customer irrevocably agrees to submit to the non-exclusive jurisdiction of the New Zealand Courts.
Defined terms
(a) “Application Form” means the Fletcher Building online credit application form
(b) “Collateral” has the meaning given to it in the PPSA;
(c) “Customer” means the customer as legal entity and party to the Transaction Documents (including these Terms of Credit);
(d) “Enforcement Event” has the meaning given to it in these Terms of Credit;
(e) “Fletcher Building” means Fletcher Building Limited (including its related companies (as defined in the Companies Act 1993, including a “holding company” and a “subsidiary” as defined in that Act)
(f) “Goods” means any product or thing purchased from the Supplier, as listed in the Supplier’s Terms of Sale which the Customer acknowledged on the Supplier’s website;
(g) “G.S.T”. means any amounts levied or charged pursuant to the Goods and Services Tax Act 1985;
(h) “Guarantee” means the guarantee as executed in the Transaction Documents;
(i) “Guarantor” means the party listed as the Guarantor in the Guarantee;
(j) “PPSA” means the Personal Property Securities Act 1999;
(k) “Receiver” means any person appointed as a receiver or receiver and manager under these Terms of Credit or any Collateral security;
(l) “Related Company” has the meaning given to it in the Companies Act 1993, and includes a “holding company” and a “subsidiary” as defined in the Companies Act 1993 and, when used in these Terms of Credit, will mean each Related Company of Fletcher Building Limited from time to time;
(m) “Security Interest” has the meaning given to it in the PPSA;
(n) “Secured Money” means all amounts from time to time due from the Customer to the Supplier and any Related Company including, without limitation, under these Terms of Credit (including, for the purposes of sections 71 and 72 of the PPSA, future advances under or in connection with these Terms of Credit or any related or ancillary documents);
(o) “Secured Property” has the meaning given to it in these Terms of Credit;
(p) “Supplier” means the applicable Fletcher Building Limited Related Company entity selected by the Customer in the Application Form, and which the Customer acknowledged to be the supplier of the Goods in the Terms of Sale on that Related Company’s website, as party to the Transaction Documents (including these Terms of Credit);
(q) “Transaction Documents” means, together, these Terms of Credit, Guarantee, the Supplier’s Terms of Sale (under which the Customer is supplied Goods and credit from time to time and which the Customer selected on the Supplier’s website), Privacy Statement and Acknowledgement of Transaction Documents.
References to any legislation include that legislation as amended, and any replacement of that legislation, from time to time.
References to a time or time period applicable to the Customer’s obligations are deemed to mean that the time or time period is of the essence.
Headings do not form part of these Terms of Credit and are for convenience only.
Guarantee and Indemnity
TO: The applicable Fletcher Building Limited Related Company entity selected by the Customer in the Application Form as the supplier of credit and Goods to the Customer, and which the Customer acknowledged to be the supplier of the Goods in the Terms of Sale on that Related Company’s website, as party to the Transaction Documents (“the Supplier”)
HEREBY UNCONDITIONALLY AND IRREVOCABLY GUARANTEE to the Supplier the due payment of all moneys currently owing and from time to time owing by, and the performance of all other obligations from time to time of, the Principal Debtor to the Supplier or to any Related Company of the Supplier under the Terms of Credit or the Supplier’s Terms of Sale and other Transaction Documents between the Principal Debtor and the Supplier, and/or any applicable terms of trade or sales to the Principal Debtor , AND FURTHER AGREE that:
CONFIRMATION
The Guarantor(s) ACKNOWLEDGE AND CONFIRM that:
By signing this Guarantee, and not deleting paragraph (d) in the CONFIRMATION section above, you confirm that you have either waived your right to independent legal advice, or have obtained such independent legal advice. However, we strongly recommend that you seek independent legal advice before signing this Guarantee to ensure that you understand the terms of this Guarantee and the extent of your obligations as guarantor.
Laminex E-Commerce Terms
Users are authorised to access and use the Website on behalf of the Customer, in accordance with the conditions of use. All Users should read and understand the conditions of use.
No additional registration form is required for Users. The registration form by the Customer covers their Users.
The Customer will nominate an Authorised Administrator on the registration form.
The Authorised Administrator will be given the log-in name and password by Laminex New Zealand. The log-in name and password are confidential to the Authorised Administrator and must not be shared with any other person.
The Authorised Administrator will request in writing to the ECommerce Administrator any new Users set up requests detailing specific access for the Users and change maintenance requests for Users when required. A template form is available on request.
Log-in names and passwords are confidential to a User and must not be shared with any other person.
The Customer will notify Laminex New Zealand if there is a change in the person nominated as the Authorised Administrator. Notification must be in writing and addressed to:
Attn: Web Order Team
ECommerce Administrator
Laminex New Zealand
PO Box 12270
Auckland 1642
Or email: weborder@laminex.co.nz
Notifications for additional Users and changes must include the information detailed on the Add and Change ECommerce User Forms.
A new master log-in name and password will be allocated when there is any change to the Authorised Administrator.
Definitions: In these conditions of use:
Applicability of Conditions of Use:These conditions of use apply to the Customer and all other Users of the Website.
Registration Data: The Customer confirms that the data it provided to Laminex New Zealand on the relevant Website registration form was at the time the Customer provided it current, complete and accurate. The Customer will notify Laminex New Zealand immediately, in writing, of any changes to that data (including the person named as the Authorised Administrator) so that it remains, at all times, current, complete and accurate. Laminex New Zealand is entitled to rely on any written information received from the Customer under this clause 3.
Security: The Customer must ensure that its password is kept secure and confidential and not revealed to any other person. The Customer must ensure that every User keeps his or her password secure and confidential and does not reveal it to any other person and that the Authorised Administrator and Users only use their passwords for purposes authorised by the Customer. The Customer is entirely responsible for all activities that occur under or through the use of its password and the password of each User. The Customer agrees to notify Laminex New Zealand immediately of any breach of security or improper use. The Customer is responsible for its own anti-virus measures.
Indemnity: The Customer agrees to indemnify Laminex New Zealand and its officers and employees against all losses, costs (including legal costs), damages and liabilities which Laminex New Zealand may incur or be liable to pay arising out of (a) Laminex New Zealand’s reasonable reliance on use of the Customer’s password and on Laminex New Zealand’s reasonable reliance on use of each User’s password; or (b) a breach by Customer or any User of clause 4.
Order goods: Any goods supplied to the Customer by Laminex New Zealand will be supplied to the Customer on Laminex New Zealand’s standard conditions of sale as per the Terms of Use on the website. The Customer confirms that each User who orders goods is authorised by the Customer to order goods for and on behalf of the Customer.
Users to comply with these Conditions of Use: The Customer will ensure that each User complies with these conditions of use as if the User was named in the relevant Website registration form as the Customer.
Copyright and Limited Reproduction Notices: The design of, and all content appearing on, the Website are the copyright of Laminex New Zealand. No part of the Website may be:
distributed or copied for any commercial purpose, nor incorporated in any other work or publication (whether in hard copy, electronic or any other form); or
resold, published, copied, reproduced, transmitted or stored (including in any other website or other electronic form) except that the Customer may print, or download to the Customer’s hard drive, extracts from the Website, for the Customer’s own use only, without the express permission of Laminex New Zealand.
Trade Marks: Laminex New Zealand trademarks must not be used by the Customer without Laminex New Zealand’s express written authorisation.
Hyperlinking: Laminex New Zealand reserves the right to prohibit links to the Website and the Customer agrees to remove or cease any link on Laminex New Zealand’s Request. The Customer may not frame any part of the Website material by including advertising or other revenue generating material.
Links Provided: The contents of the Website may include links to third party materials (linked sites). Laminex New Zealand will not be responsible for the contents of any linked site or liable for any direct or indirect loss or damage suffered by the Customer or any other person from accessing, using, relying on or trading with third parties. These links are provided to the Customer only as a convenience, and the inclusion of any link does not imply Laminex New Zealand’s endorsement of the site or any association with its operators.
Advertisers: Any dealings with any advertiser or other third party appearing on the Website are solely between the Customer and the advertiser or other third party Laminex New Zealand is not responsible or liable for any part of any such dealings.
Disclaimer: Laminex New Zealand makes the Website available to the Customer as a service. Whilst reasonable care has been taken to ensure the facts stated in the Website are accurate and the opinions given are fair and reasonable, Laminex New Zealand does not give any warranty of accuracy or reliability of information to the Customer or any other person. Use of and reliance on information contained on the Website is at the Customer’s own risk. Laminex New Zealand is not responsible for any adverse consequences arising out of such use or reliance.
Exclusion of Liability: To the fullest extent permitted by law, Laminex New Zealand will not be liable, whether in contract, tort (including negligence) or otherwise for any loss or damage (whether direct, indirect, consequential, special, or loss of profits) arising directly or indirectly from any use whatsoever of the Website (including, without limitation, any loss or damage arising from contracting any virus).
Changes to Conditions of Use: Laminex New Zealand reserves the right to change these conditions of use at any time by notifying the Customer and other users of the existence of revised conditions through the Website. By continuing to access the Website, the Customer agrees to be bound by the amended conditions.
Law: These conditions of use are governed by and will be construed in accordance with the laws of New Zealand and the Customer submits to the non-exclusive jurisdiction of the courts of New Zealand.
Termination: The Customer or Laminex New Zealand may terminate this agreement and the Customer’s registration at any time, for any reason (including, without limitation, the Customer’s failure to or any User’s failure to comply with these conditions of use). Once terminated the Customer and each User cannot access the Website in any manner or for any reason whatsoever (without Laminex New Zealand’s consent).
Any questions or concerns please email us atweborder@laminex.co.nz, or write to us at:
Attn: Web Order Team
ECommerce Administrator
Laminex New Zealand
PO Box 12270
Auckland 1642