Applicable Terms and Acceptance of Order
These terms of contract between CMI FASTENERS (the “company”) and the Buyer (the “Buyer”) shall apply to all orders for self tapping wood or machine screws (“Goods”) accepted by the company from the Buyer and that these Terms and Conditions shall prevail and take precedence over any document or oral message from the Buyer. Where the Company fails to enforce any terms and conditions under this contract the company will not be deemed to have waived these rights with respect to any term and condition or right.
Quotation and Price
The Company shall confirm the price of Goods in its price list or as a quotation and the Buyer shall confirm acceptance by signing the order. No quotation shall constitute an offer unless signed by the Company and the Company may withdraw any quotation before the Buyer’s signed acceptance. The quotation price may be increased if the Company suffers any cost increases which are beyond its control in the supply production and delivery of Goods (including increases in imported materials and duties) between the date of Contract (or where the contract arises from a quotation the date of quotation) and the date of delivery or if the Buyer varies or alters the requirements for the Goods. All prices are exclusive of GST insurance freight and other handling charges which shall be involved by the Company and payable by the Buyer.
The Buyer may not cancel any order of non- stock or non-standard Goods or Special Goods made on instructions of the Buyer and if cancellation occurs the Buyer shall pay the Company for all costs involved in manufacture including any special tooling or materials which may have been used to the time of cancellation.
Small quantity surcharges may apply to order quantities less than 30,000 (thirty thousand) units.
Payment shall be made upon delivery of Goods except where the Company has agreed to provide credit to the Buyer in which case payment shall be made by the 20th of the month following date of invoice. The Buyer shall make payment of all amounts due to the Company without any delay or deduction whether by way of set-off counterclaim or otherwise. If at any time the Company reasonably deems the credit of the Buyer to be unsatisfactory it may require the Buyer to provide at the Buyers cost security for payment and/or the Company may suspend performance of its obligations under this Contract until security is provided to the Company’s satisfaction and the Company may require the Buyer to pay all costs incurred as a result of suspension and re-commencement of supply.
Interest for Late Payment
The Company may charge the Buyer interest on any money’s outstanding under this Contract on a daily basis at a rate equal to 5% above the Company’s bank indicator lending rate. Interest is payable from the date payment was due until the date the Company receives payment. The Company’s right to charge interest without prejudice to the Company’s other rights to remedies for the Buyer’s default in failing to pay on the due date and the company may suspend performance of any of it’s obligations under this Agreement or any other Contract between the Company and the Customer and secure any Goods in it’s possession until payment is in made in full.
Delivery by the Company to a carrier accepted by the Buyer or delivery from the Company’s premises when the Company advises it is ready to deliver constitutes delivery. If the Buyer fails to take delivery the company has the right to charge the Buyer for the cost of storage or transport or both.
Freight will be charged by the Company’s nominated method of delivery dependant upon any special instructions from the Buyer. Freight will be charged by the Company for all shipments and for any special deliveries required by the Buyer.
Delivery of +/- 10% of the quantity of the Goods ordered by the Buyer constitutes performance of the Contract. The Buyer will accept a pro-rata cost for the quantity of Goods supplied.
Goods may be delivered in installments at the Company’s discretion and in such case each delivery will be regarded as a separate contract and Goods delivered shall be paid by the Buyer in accordance with the Terms of Payment.
The Company will make every effort to ensure delivery of Goods but will not be liable for any loss or damage or consequential loss to the Buyer arising from delays in delivery.
Passing of Property and Risk
The Buyer agrees that where the Company supplies intellectual property in the form of written instructions drawings design or manuals the ownership of such intellectual property shall remain with the Company and the Buyer further agrees that is shall not use the intellectual property in any manner whatsoever whether in complete form or in any way adapting or altering the intellectual property in dealings other than with the Company.
Risk of any loss damage or deterioration of or to the Goods shall be borne by the Buyer from the time of delivery of the goods into the Buyer’s care and control.
The Buyer agrees that the Company has legal and equitable right to title in the Goods and ownership shall only pass to the Buyer when contract price is paid. For as long as ownership in the Goods is retained by the Company the Buyer will store the Goods separately and in such way that they are identifiable as the property of the Company and shall properly store protect and insure the Goods from fires and loss damage.
Not withstanding that property in the Goods is retained by the Company the Buyer is hereby authorized to sell the Goods in the ordinary course of business and to deal with such proceeds as fiduciary agent of Company until the Buyer pay the Company in full without deduction or setoff provided that such authority may be revoked by written notice at any time if the Company deems the credit of the Buyer to be unsatisfactory or if the Buyer is in default of its obligations under the contract or any other contract between the Company and the Buyer and shall be deemed automatically revoked if the Buyer shall commit any act of bankruptcy enter into any composition or arrangements with creditors or (in the case of a Company) do any act which would render it liable to be liquidated or if a resolution is passed or proceedings commenced for the liquidation of the Buyer or a Receiver is appointed in respect of all or any assets of the Buyer.
Where Goods in respect of which property has not passed to the proceeds of sale of such Goods when received by the Purchaser shall be held upon trust by the Buyer for the Company and any proceeds of sale so received by the Buyer shall be placed in a separate bank account and shall first be applied towards the satisfaction of all indebtedness of the Buyer to the Company.
If the Goods the subject of this contract have become the constituent of mixed with or attached to any other goods meaning Goods that are sold by the Company and those Goods sold by the Buyer prior to the Company receiving payment then a portion of the proceeds of that sale attributable to the Company’s Goods shall be property of the Company and the Buyer shall ensure that such proceeds are at all times held in a separate fund in trust for the Company.
The Buyer hereby irrevocable gives the Company it’s agents or servants the free and uninterrupted right to enter its premises during normal business hours in accordance with the Credit (repossession) Act to search for inspect and remove any of the Goods supplied in which the company has retained ownership and the Buyer will not hold the Company responsible for any economic or consequential loss that the Buyer may suffer as a result.
Claims for Returned, Damaged or Defective Goods
The Company may at its discretion replace any damaged or defective Goods or make a reasonable allowance on the purchase of goods to replace the Goods provided:
(a) The Buyer returns the Goods within thirty (30) days of delivery at the Buyers cost together with a copy of the invoice and a claim specifically identifying
the damage or defect(s) and
(ii) The Company has reasonable opportunity to investigate the claim.
If the Buyer does not comply with the above requirements the Buyer will be deemed to have accepted the Goods and the Company will not incur any liability whatsoever in relation to the Goods.
The Company may at its discretion give credit for returned Goods which has been incorrectly ordered by the Buyer provided the Goods are returned at the Buyers cost in the same condition and packaging in which they were dispatched with a copy of the invoice. The Company may retain 20% of the value of the credit for administration and handling charges.
The Buyer agrees that claims shall not be considered in respect of Goods which:
(i) are not intact and in original condition
(ii) have been abused or improperly stored or suffered damage
(iii) have been sold to the Buyer on a non-refundable basis
(iv) have been sold to the Buyer on tender or in non standard lots or special labeling
(v) are more than (3) three months after the date of delivery
(vi) in the case of discrepancies in order quantity or type of Goods where the claim is not in writing within (5) five working days of receipt of the order.
Company Guarantee & Liability
The Company’s liability in respect of any claim shall relate only to specific defects in the Goods arising from faulty materials or workmanship of the Company
Where the Company accepts liability for damage or defect and elects to replace Goods it shall replace the Goods to their original condition but where materials or compounds used in manufacture are not available or where the Company has imported Goods for re-sale to the Buyer which are not manufactured by the Company it may replace by other articles of similar description and value (but can be of a standard type) and such substituted articles shall become subject to the provisions of this Agreement.
The Company shall not be liable for any breach or failure to perform any of its obligations under this contract where such breach or failure is caused by war civil commotion hostilities strike or lock out act of God fire governmental regulations or directions or any other cause of force majeure beyond the Company’s reasonable control. The occurrence of such an event shall not give the Buyer a right of cancellation of the contract.
Consumer Guarantees Act 1983 (and its amendments)
Nothing in these terms is intended to have the affect of contracting out of the provisions of the Consumer Guarantees Act 1983 (and its amendments) except to the extent permitted by that Act where the Buyer acquires the Goods in a business to business situation in terms of sections 2 43 of the Act and all provisions of these terms shall be read as modified to the extent necessary to give effect to that intention.
The Buyer shall not in relation to the supply by the Purchaser of the Goods give or make any understanding assertion or representation in relation to the Goods without the prior approval in writing of the Company and the Buyer shall indemnify the Company against any liability or cost incurred by the Company as a result of any breach by the Buyer of this provisions.
All the original rights powers exemptions and remedies of the Company shall remain in full force notwithstanding any neglect forbearance or delay in the enforcement thereof. The Company shall not be deemed to have waived any condition unless such waive shall be writing under signature of the Company or an authorized officer thereof and any such waiver unless the contrary shall be expressly stated shall apply to and operate only in a particular transaction dealing or matter.
In the event of any dispute between the parties arising out to this Agreement such dispute shall be referred to an arbitrator to be agreed between the parties and the undisputed portion of the account shall be payable by the Customer without deduction or setoff. Upon failure to reach agreement within three (3) months of notice in writing by one party to the other arbitration will be conducted in accordance with the Arbitration Act and any amendments thereof.
Where the Buyer is a Company the person(s) referred to as guarantor(s) in this Agreement shall personally guarantee the obligation of the Buyer.