TERMS & CONDITIONS OF TRADE OF LINEA STONE LIMITED

  1. Definitions
    1. "Seller" shall mean Linea Stone Limited and its successors and assigns.
    2. "Customer" shall mean the Customer or any person acting on behalf of and with the authority of the Customer.
    3. "Guarantor" means that person (or persons), or the entity who agrees herein to be liable for the debts of the Customer if a Limited Liability Customer on a principal debtor basis.
    4. "Goods" shall have the same meaning as in Section 119 of the Contract and Commercial Law Act 2017 and are Goods supplied by the Seller to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined).
    5. "Services" shall mean all services supplied by the Seller to the Customer and includes any advice or recommendation (and where the context permits shall include any supply of Goods as defined in 1.4 above).
    6. "Price" shall mean the cost of the Goods (and/or services) as agreed between the Seller and the Customer subject to clause 4 of this contract.
    7. "Working Day" means every day other than weekends and public holidays in Auckland.
  2. Acceptance
    1. Any instructions received by the Seller from the Customer for the supply of Goods shall constitute acceptance of the terms and conditions contained herein.
    2. Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
    3. Upon acceptance of these terms and conditions by the Customer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Seller.
    4. None of the Seller's agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Seller in writing nor is the Seller bound by any such unauthorised statements.
  3. Goods/Services
    The Goods and/or Services are as described on invoices, quotation, work authorisation or any other work commencement forms as provided by the Seller to the Customer.
  4. Price and Payment
    1. At the Seller's sole discretion:
      1. The Price shall be as indicated on invoices from the Seller to the Customer in respect of the Goods supplied;
      2. The Price of the Goods shall, subject to clause 4.2, be the Seller's quoted Price, which shall be binding upon the Seller.
    2. Any variation from the plan of scheduled works or specifications will be charged for in addition to the quoted price and will be shown as variations on the invoice. Payment for all variations must be made in full at the time they are completed.
    3. Payment of 50% of the Price  (including GST) is required 10 Working Days before either the date of templating the Goods by the Seller or delivery of the Goods , whichever is the earlier. Time for payment of the balance of the Price for the Goods/Services shall be on installation of the Goods.  Goods installed on a progressive basis shall be invoiced progressively, with each item invoiced progressively on  installation.
    4. Payment will be made by cash, or by direct credit.  Payments by direct credit will be deemed not to have been made until the payment is cleared. All payments shall be made without deduction or set-off.
    5. The Price shall be increased by the amount of any GST and other taxes and duties that may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Seller.
  5. Delivery of Goods
    1. Delivery of the Goods shall be made to the address specified by the Customer where the Seller shall install the Goods. The Customer shall make all arrangements necessary to take delivery of the Goods wherever they are tendered for delivery.
    2. Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer.
    3. The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
    4. The Seller shall not be liable for any loss or damage whatever due to the failure by the Seller to deliver the Goods (or any of them) promptly or at all.
    5. Delivery outside the Auckland City metropolitan urban limits will be at the additional cost of the Customer.
  6. Risk
    1. Risk in the Goods passes to the Customer when the Goods are installed. Property in the Goods remains with the Seller as per clause 10.
    2. The Customer shall be obliged from the time of installation and, pending payment in full, to insure the Goods in the name of the Seller and the Customer for their respective interests.
  7. Defects and Returns
    1. The Customer shall inspect the Goods on installation and shall within 48 hours of installation notify the Seller in writing of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
    2. For defective Goods which the Seller has agreed in writing that the Customer is entitled to reject, the Seller's liability is limited to either (at the Seller's discretion) replacing the Goods or repairing the Goods provided that:
      1. the Customer has complied with the provisions of clause 7.1;
      2. the Seller will not be liable for Goods which have not been used in a proper manner;
      3. the Seller will not be liable for Goods which have been damaged after the Seller has completed installation.
    3. The Customer acknowledges that the Goods supplied by the Seller may from time to time contain imperfections which, provided the Seller remedies to a reasonable standard having regard to general industry standards, will not entitle the Customer to any right of compensation, cancellation or other remedy available at law or under these Terms and Conditions.
  8. Warranty
    1. All warranties and representations by the Seller, other than those expressly set out in these Terms and Conditions, are excluded to the greatest extent permitted by law. Where the Goods are supplied for the purpose of the Customer's business, the warranties implied by the Consumer Guarantees Act are excluded. The Seller shall not be liable for any consequential, indirect or special loss whether under contract, tort or otherwise.
    2. For Goods not manufactured by the Seller the warranty shall be the current warranty provided by the supplier of the raw materials. The Seller shall be under no liability whatsoever except for the express conditions as detailed and stipulated in the supplier's warranty.
    3. To the extent permitted by law, the Customer agrees that no warranty or representation by the Seller (whether implied by law or otherwise) shall apply if the Customer has not made all payments when due in accordance with these Terms and Conditions.
  9. Default and Consequences of Default
    1. Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of three percent (3%) per month and shall accrue at such rate until payment is received.
    2. If the Customer defaults in payment of any invoices when due, the Customer and the Guarantor shall indemnify the Seller from and against all the Seller's costs and disbursements including legal costs on a solicitor and own client basis incurred in connection with the enforcement or attempted enforcement of the contract and collection of money due.
    3. Without prejudice to any other remedies the Seller may have, if at any time the Customer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Customer for any loss or damage the Customer suffers because the Seller exercised its rights under this clause.
  10. Retention of Title Clause
    1. Notwithstanding the subsequent provisions of this clause, risk in the Goods shall pass to the Customer when such Goods are installed by the Seller .
    2. Ownership (both legal and equitable) in all Goods supplied to the Customer shall be retained by the Seller until cleared payment in full is made for the Goods and for all other Goods supplied by the Seller to the Customer.
    3. Until such payment is made in full for all Goods supplied by the Seller to the Customer:
      1. the Customer acknowledges that the Customer is in possession of such Goods as bailee for the Seller pending payment in full;
      2. the Customer shall properly protect and insure the Goods;
      3. the Customer shall identify the Goods as being the property of the Seller; and
      4. the Customer hereby irrevocably gives the Seller its agents and servants, the free and uninterrupted right to enter any premises in which the Goods have been installed during normal business hours, to search for, inspect and remove the Goods supplied in which the Seller has retained ownership pursuant to this clause if:
        1. the Customer does any act or omits to do any act which would entitle or cause a receiver to be appointed; or
        2. which would entitle any person to present a petition to wind up the Customer or if the Customer goes into a voluntary winding up.
    4. The Seller shall not be held liable for any damage caused in respect of entering the premises where the Goods supplied to the Customer are located and repossessing the Goods.
    5. The Customer and the Seller are in a fiduciary relationship and subject to the terms of this agreement the Customer is licensed by the Seller to agree to on-sell the Seller's Goods, subject to the following conditions:
      1. in such an agreement to sell the Customer is acting as agent (save that the Customer shall not hold himself out as such) and bailee for the Seller, whether the Customer sells on his own account or not; and
      2. the entire proceeds of sale are held in trust for the Seller and are not mingled with other moneys or paid into any overdrawn bank account and shall be at all times identifiable as the Seller's moneys.
    6. If the Customer produces other goods using the Goods supplied by the Seller and goods owned by any other person including the Customer the Seller reserves an undivided interest in the legal title to the other goods being in proportion to the total cost of the Goods supplied by the Seller.
    7. If the Goods, the subject of this contract, have become the constituent of, mixed with or attached to any property or other goods, meaning goods other than those sold by the Seller and those goods are sold by the Customer prior to the Seller receiving payment, then a portion of the proceeds of that sale, attributable to the Seller, shall be the property of the Seller and the Customer will ensure that all proceeds are at all times held in the separate fund in trust for the Seller.
    8. The Seller shall at any time have the power to appropriate payments to such Goods and accounts as it thinks fit,  notwithstanding any purported appropriation by the Customer to the contrary.
    9. As a security for all obligations that the Customer may owe to the Seller from time to time the Customer hereby grants to the Seller a security interest under the PPSA in all Goods supplied by the Seller to the Customer from time to time and in the proceeds of all such Goods as well as in any negotiable instrument representing any such goods.
    10. The Customer will provide the Seller on request with all information necessary for the registration of the Seller's security interest in terms of the PPSA.
    11. The Customer hereby waives its rights in terms of section 148 of the PPSA to receive a copy of a verification statement.
  11. Guarantee
    1. If the Customer is a company, the Guarantor guarantees to the Seller that the Customer will pay all amounts payable to the Seller by the Customer when due.  As between the Guarantor and the Seller, the obligations of the Guarantor are those of a principal debtor. The guarantee under this clause is a continuing guarantee and shall not be abrogated or released by any variation, delay, insolvency event or other thing which may otherwise at law release a guarantee.
    2. The Guarantor agrees to pay promptly on request all the Seller's costs and disbursements including legal costs on a solicitor and own client basis incurred in connection with the enforcement or attempted enforcement of this guarantee.

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