In the event that Value Timber Supplies Limited (“Value Timber Supplies”) approves this Application, the Customer acknowledges and agrees that:
1.1. Payment is due by the 20th of the month following the date of delivery of the Goods. The account is to be maintained on strictly 20th of the month following basis.
1.2. Any account remaining unpaid after the due date for payment shall be liable to incur an interest charge of 1.5% of the amount unpaid per month (or part thereof). The Customer will pay all expenses and costs (including legal costs) incurred by or on behalf of Value Timber Supplies recovering or attempting to recover the overdue amount.
1.3. Value Timber Supplies may impose a credit limit on the Customer’s account and alter the credit limit without notice. Where the credit limit is exceeded, Value Timber Supplies may refuse to supply Goods to the Customer.
1.4. The Customer may not withhold payment or make any deductions from or set off any amount against any Secured Indebtedness without Value Timber Supplies’ prior written consent.
1.5. Any disputes or credit requests by the Customer relating to an invoice issued by Value Timber Supplies for Goods supplied must be received in writing within 30 days from the date of invoice.
1.6. The pricing of the Goods is GST exclusive unless otherwise expressly indicated.
2.1. If, at any time and for any reason, an Event of Default occurs, then (without prejudice to any other remedies Value Timber Supplies may have):
2.2. Value Timber Supplies does not (and will not be deemed to) undertake any of the Customer’s obligations in respect of the Secured Property by virtue of these Terms.
2.3. Value Timber Supplies is not required to marshall, enforce or apply under any security interest, guarantee or other entitlement held by Value Timber Supplies at any time or any money or property that Value Timber Supplies at any time holds or is entitled to hold.
2.4. The remuneration of the Receiver may be fixed by Value Timber Supplies but is payable by the Customer and forms part of the Secured Indebtedness. To the fullest extent permitted by law, a Receiver will be the agent of
the Customer and the Customer will be solely responsible for that Receiver’s acts and defaults. Value Timber Supplies may remove any Receiver appointed by providing that Receiver with written notice that the Receiver’s appointment has thereby ceased, whereupon the Receiver shall immediately cease to act.
2.5. The Customer irrevocably appoints, and ratifies the actions or omissions of, Value Timber Supplies, each Receiver, each nominee of Value Timber Supplies in whose name any Secured Property is registered and each duly authorised officer or attorney of Value Timber Supplies severally, to be its attorney (“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 its 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 Value Timber Supplies the full benefit of its rights and intended rights under these Terms and any other contract with Value Timber Supplies to secure payment of the Secured Indebtedness and performance of the Customer’s obligations to Value Timber Supplies and any Related Company and any matters incidental thereto.
3.1. Title to any item sold under these Terms shall not pass to the Purchaser but remain with Value Timber Supplies until full payment for the Goods/Service has been received by Value Timber Supplies. The risk of any loss or damage to, or deterioration of, the Goods due to any cause whatsoever will pass to the Customer on delivery. If any Goods are damaged or destroyed prior to risk passing to the Customer, Value Timber Supplies may promptly repair the Goods or cancel the order in respect of those Goods without penalty or compensation to the Customer.
3.2. If the Goods are attached, fixed, or incorporated into any property of the Customer, by way of any building or assembly process by the Customer or any third party, title in the Goods shall remain with Value Timber Supplies until the Customer has made payment in full, and where those Goods are mixed with other property, title to these new goods shall be assigned to Value Timber Supplies as security for the full satisfaction of the amount owing.
(such personal property under (a) and (b) is together the “Secured Property”).
4.2. The Customer undertakes:
4.3. Each security interest created under these Terms 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 Indebtedness or any other obligations owing by the Customer to Value Timber Supplies or any Related Company.
4.4. The Customer waives its rights under the PPSA to receive a copy of any verification statement, financing statement or financing change statement (as those terms are defined in the PPSA) and agrees that:
4.5. The Customer acknowledges that it has received value as at the date of first delivery of the Goods and that Value Timber Supplies has not agreed to postpone the time for attachment of the security interest granted to Value Timber Supplies under these Terms.
4.6. The Customer must not:
4.7. The Customer will, upon demand, pay all Value Timber Supplies expenses and legal costs (on a solicitor-client basis) in relation to or in connection with the registration, maintenance and enforcement of Value Timber Supplies’ security interest.
5.1. The Customer must ensure that:
7.1. The Customer is solely responsible for the accuracy of plans, specifications and information supplied by (or on behalf of) the Customer upon which a quotation/estimate/order of materials is based. All customary building industry tolerances shall apply to the dimensions and measurements of Goods unless Value Timber Supplies and the Customer agree otherwise in writing.
8.1. Goods are offered subject to availability. Where Goods are not available, Value Timber Supplies has no obligation to supply those Goods to the Customer. Value Timber Supplies may at the time of supply substitute a similar Good to that ordered. It is the responsibility of the Customer to ensure that any Good substituted is acceptable. If not, the Customer must, before using the Good, advise Value Timber Supplies.
9.1. The parties agree that if the Goods provided are supplied and acquired in trade then in that case the parties agree to contract out of:
such agreement being acknowledged as fair and reasonable for the parties to be bound by this clause. Nothing in these Terms is intended to contract out of the provisions of the Consumer Guarantees Act 1993 or the Fair Trading Act 1986, except to the extent permitted by those Acts.
9.2. Subject to clause 9.1, and to any express warranties confirmed by Value Timber Supplies (or the manufacturer of the Goods) to the Customer in writing, to the maximum extent permitted by law, Value Timber Supplies expressly excludes all other conditions, warranties, guarantees, descriptions, representations, conditions as to fitness or suitability or fitness for any purpose, tolerance to any conditions, merchantability, appearance, safety, durability or otherwise (whether of a like nature or not) and whether express or implied by law, trade custom or otherwise.
9.3. The sale of any Goods shall not, unless expressly agreed in writing, give the Customer the right to use, sell, disseminate or duplicate any Value Timber Supplies trademark, copyright, design or any other intellectual property right.
9.4. Value Timber Supplies will not be liable in respect of Goods that have been tampered with or modified without Value Timber Supplies approval or which have been stored in an improper manner.
9.5. For Goods that the Customer is entitled to reject (pursuant to clause 6(f) or Value Timber Supplies liability for breach of a non-excludable condition,
warranty or any other liability, is limited at Value Timber Supplies option to:
9.6. Notwithstanding any other provision of these Terms, but subject to clause 9.1, under no circumstances shall Value Timber Supplies be liable to the Customer or any other person (whether in contract, tort, including negligence, statute or otherwise) for any:
9.7. To the maximum extent permitted by law, but subject to clause 9.1, Value Timber Supplies’ total liability (whether in contract, statute, tort, including negligence, or otherwise howsoever arising) for any claim by the Customer, its agents, employees or subcontractors, or any other person, relating to or arising from the supply of Goods or any quotation or estimate given shall not exceed the price of the Goods to which the Claim relates.
The Customer hereby indemnifies Value Timber Supplies, its employees, officers, and agents, (“Indemnified Parties”) against all losses, liabilities, damages, claims, actions costs or expenses including administration costs and other legal fees and expense on a solicitor and client basis) which the Indemnified Parties may incur, of which have been made against an Indemnified Party as a result of or relating to any claim by a third party to the extent caused or contributed to by the Customer .
9.9. If the Customer is a company, then unless otherwise agreed by Value Timber Supplies, it must procure that the Deed of Guarantee included in the Application is executed by each director of the company and returned to Value Timber Supplies as soon as possible.
The Customer is liable for all purchases made in its account name. It is not Value Timber Supplies responsibility to confirm authority for the purposes of supplying or delivering Goods to the Customer or its agents. It is the sole responsibility of the Customer to ensure there is no unauthorised use of its account.
11.1.Timber is a hygroscopic material subject to expansion and contraction; therefore Value Timber Supplies will accept no responsibility for timber exposed to the elements after delivery.
11.2.The Customer acknowledges that Goods supplied may exhibit variations in shade, colour, texture, surface, finish, markings and may contain natural fissures, occlusions, lines, indentations and may fade or change colour over time. They may also expand, contract or distort as result of exposure to moisture, heat, cold, weather; and become damaged or disfigured by impact or scratching.
In the event that any sale by Value Timber Supplies is of a Good that means the supply is a “construction contract” within the meaning of the Construction Contracts Act 2002 (CCA) so that the CCA applies to these Terms or any sale under them, then there shall be no progress payments and the Goods shall be paid for in one lump sum on the due date.
13.1 Notwithstanding any other provisions of these Terms, neither Value Timber Supplies nor the Customer shall be liable for any delay or failure in the performance of any obligation or the exercise of any right under these Terms or for any loss or damage if such performance or exercise is prevented or hindered by a Force
Majeure Event. Nothing in this clause shall excuse payment of the Secured Indebtedness as it becomes due under these Terms.
13.2 The rights and obligations of either party which are affected by a Force Majeure Event shall be suspended during the continuance of the event with either party claiming to be affected by the event giving immediate notice to the other party containing full particulars of the event. The party giving notice under this clause shall take all reasonable steps to mitigate the effects of the event.
14.1 Value Timber Supplies may at any time collect, hold and use information relating to this credit application
for any purpose connected with its business including (but not limited to) direct marketing, debt recovery, credit reporting or assessment, and to register any security interest, including collecting information from, and disclosing information to, external credit reporting agencies, debt collection agencies and trade referees. Information disclosed by Value Timber Supplies to credit reporting agencies will be disclosed on the basis that it will be held and used by such agencies to provide credit reporting services. Under the Privacy Act 2020, individuals have rights to access to, and request correction of, their personal information by contacting Value Timber Supplies.
14.2 The Customer, any director signing on behalf of the Customer and any Guarantor authorises Value Timber Supplies to collect, hold and use information from any person or entity for any of the above purposes, and for such person or entity to disclose information to Value Timber Supplies, and the Customer further authorises Value Timber Supplies to disclose information to any person or entity for any of the above purposes and such person or entity to collect, hold and use
information from Value Timber Supplies.
15.1 These Terms contain the entire agreement between the parties and replace any previous arrangements or understandings relating to supply by Value Timber Supplies to the Customer. Unless otherwise
specifically agreed in writing by Value Timber Supplies, where any terms and conditions of the Customer’s order or any request for supply are inconsistent with these terms, then these terms and conditions will prevail. Any variations or additions to these terms and conditions not expressly agreed in writing by Value Timber Supplies are expressly rejected by it. Value Timber Supplies may vary these Terms at any time by publishing the varied terms on it’s website
www.valuebuilding.co.nz provided it first notifies the Customer in writing that these Terms have been amended and are on the website. Subsequent purchases by the Customer on the account will signify acceptance of such changes.
15.2 If Value Timber Supplies exercises or fails to exercise any right or remedy available to it, this shall not prejudice Value Timber Supplies’ rights in exercising that or any other right or remedy unless expressly waived by Value Timber Supplies in writing.
15.3 Value Timber Supplies may assign these Terms and all or any contracts created pursuant to them to any other person. Without limiting the foregoing, Value Timber Supplies may assign to any other person all or part of the Secured Indebtedness owing by the Customer to Value Timber Supplies.
15.4 The Customer agrees that Value Timber Supplies may subcontract the performance of the Services to any other person.
15.5 Every provision of these Terms remains binding unless it is held to be illegal, invalid, unenforceable or void, in whole or part, in which case such provision or part of such provision shall be severed from the agreement, which will continue in full effect.
15.6 These Terms shall be subject to the laws of New Zealand and the courts of New Zealand shall have exclusive jurisdiction.DEFINITIONS: In these Terms: (a) Application means the credit account application, these Terms, and the Deed of Guarantee;
(b) Claim means any demand or assertion of right to compensation or other legal or equitable remedy (whether in contract, tort, including negligence, statute or otherwise) arising out of or relating to the supply of Goods, including any proceeding in any tribunal, court or other forum arising out of or relating to the supply of Goods;
(c) Customer means the party(s) stated in the credit application form as the customer (together with its successors), or any other person whose order for the purchase of Goods is accepted by Value Timber Supplies in writing. If the Customer comprises more than one person, each of those person’s liability and agreement is joint and several. Where the Customer is a trust, the trustees’ liability shall not be limited to the assets of the trust;
(d) Deed of Guarantee means the deed of guarantee included in the Application;
(e) Delivery means delivery of the Goods under clause 6;
(f) Event of Default means:
(i) where the Customer fails to pay, or in Value Timber Supplies opinion is likely to fail to pay, any moneys owing when due; or
(ii) where the Customer breaches, or in Value Timber Supplies opinion is likely to breach, any non monetary obligations owing to Value Timber Supplies or any Related Company whether under these Terms or otherwise; or
(iii) the Customer commits an act of bankruptcy; (iv) the Customer’s ownership or effective control is transferred without the consent of Value Timber Supplies;
(v) if the Customer:
A becomes insolvent or is unable to pay its debts as they fall due or is deemed or presumed to be so under any law;
B makes, or proposes to make, an assignment, arrangement, composition or compromise with, for the benefit of, or affecting its creditors in relation to any of its indebtedness; or
C a receiver, liquidator, trustee, manager, administrator or statutory or official manager or similar officer is or has been appointed in respect of the Customer or over all or any of the Customer’s assets;
(g) Force Majeure Event means any event or circumstance which is beyond the reasonable control of the affected party (including, without limitation an , act of God or public enemy, flood, earthquake, storm, cyclone, tornado, hurricane, lightning, fire, explosion, epidemic, war, embargo, riot or civil disturbance, strike or other labour dispute, sabotage, expropriation, confiscation or requisitioning of facilities, or by orders or temporary or permanent injunctions of any duly constituted court of competent jurisdiction) and which results in or causes the failure of that party to perform any of its obligations under these Terms;
(h) Goods means all building materials and hardware, tools and accessories supplied by Value Timber Supplies to the Customer (together with any Services forming part of the supply of Goods) and in respect of each order of Goods placed by the Customer and accepted by Value Timber Supplies in writing, the Goods described in the invoice issued by Value Timber Supplies in respect of such order;
(i) GST means any amounts levied or charged pursuant to the Goods and Services Tax Act 1985;
(j) PPSA means the Personal Property Securities Act 1999 (as amended from time to time);
(k) Proceeds has the meaning given to it in the PPSA; (l) PMSI has the meaning given to “Purchase Money Security Interest” in the PPSA;
(m) Related Company has the meaning given to it in the Companies Act 1993;
(n) Receiver means any person appointed as a receiver or manager under these Terms or any security;
(o) Secured Indebtedness means all indebtedness, of whatever nature, which the Customer is now or at any subsequent time actually, prospectively or contingently liable to pay to Value Timber Supplies or any Related Company (including, for the purposes of the PPSA, future advances under or in connection with these Terms or any related or ancillary document);
(p) Secured Property has the meaning given in clause 4; (q) Services means any services performed by Value Timber Supplies (its employees, agents or subcontractors) as part of supplying the Goods; (r) Terms means these terms and conditions, as amended from time to time under clause 15.1.