TERMS OF TRADE

 1. Introduction

1.1 These terms and conditions form the entire agreement between the parties, and no other conditions shall apply except where LOUVRE SPAN has agreed in writing to vary such terms and    conditions. These terms and conditions apply in respect of any purchase by a customer of products or services supplied by LOUVRE SPAN. By purchasing products or services from LOUVRE SPAN, you are accepting these terms and conditions. LOUVRE SPAN reserves the right to update or correct the terms and/or conditions, such change to take effect from the date the change is made, without the necessity of giving notice. Any existing order for product shall be governed by the terms and conditions current at the time the order was accepted by LOUVRE SPAN.

2. Products and Prices

2.1 The price of any product shall be the price quoted by LOUVRE SPAN at the time of making the order, and any cost associated with the getting the product to you (delivery costs etc). Any quote remains open for 30 days, provided that, if accepted, revisions may apply only to significant cost increases and LOUVRE SPAN will notify the customer before proceeding further. Orders are not binding upon LOUVRE SPAN until accepted by LOUVRE SPAN. All prices are exclusive of GST. 

2.2 In the event there is any “scope creep” reasonably deemed material by LOUVRE SPAN that work, or project shall be re-costed by LOUVRE SPAN and the parties shall use their best endeavors to reach agreement on the new price.  If no such agreement can be reached LOUVRE SPAN is under no obligation to complete such work or project and may, at its option, cease such work or project in which case the Customer shall remain liable for LOUVRE SPAN’s work in progress up to the date of such cessation. Any variation must be agreed in writing (email is sufficient) before work continues.

2.3 If any project is cancelled at any time, the Customer shall remain liable for   LOUVRE SPAN’s work in progress up to the time of such cancellation.

3. Payment

 3.1 LOUVRE SPAN and the Customer each agree payment for products is on the following basis:

(a) any contract between LOUVRE SPAN and the Customer is to be on a “cash sale” basis unless otherwise agreed and the Customer shall pay the amount owing prior to delivery of any products.

(b) where any work is undertaken, the Customer shall pay a non-refundable deposit of 50 percent of the total price, 25 percent the week prior to installation and a further 25 percent when the installation is complete.

3.2 Settlement of any invoice requires payment in full either by cash, electronic funds transfer or other method of payment which is first approved by LOUVRE SPAN into LOUVRE SPAN’s designated bank account (ASB 12-3489-0062381-02 unless otherwise stated).

3.3 In addition to the price, the Customer will pay any GST payable in respect of the supply of the product by LOUVRE SPAN to the Customer.

3.4 Payment of the amounts owing shall be in full and free of any counterclaims, set-off, deduction or other claim whatsoever against    LOUVRE SPAN.

 3.5 LOUVRE SPAN may suspend the supply of products if the Customer has not paid any amounts owed to    LOUVRE SPAN and such suspension is without prejudice to any other rights of   LOUVRE SPAN pursuant to this contract.

 3.6 LOUVRE SPAN may charge a storage fee of $100 per week for the products if the Customer refuses or fails to take delivery of the products or LOUVRE SPAN elects not to deliver the product in the event the Customer is in breach of this contract.

 3.7 LOUVRE SPAN is entitled to recover in full, any additional costs it incurs in recovering outstanding debts owed by the Customer or enforcing the terms of this Agreement.

3.8 If the Customer defaults in payment of any amount owing to LOUVRE SPAN, then the Customer shall pay interest on such amount owing at the rate equivalent to the overdraft rate charged from time to time by LOUVRE SPAN’s bank. That interest rate will apply from the date when payment was due for the product until the date of actual payment including payment of any accrued interest.

4. Ordinary Course of Business

4.1 The Customer acknowledges that LOUVRE SPAN supplies the Customer on condition that all payments made to and received by LOUVRE SPAN from the Customer are valid and made in the ordinary course of business. Any payments are agreed to be received in good faith and in the reasonably held belief that the payments are valid. The Customer acknowledges that LOUVRE SPAN may by accepting payment from the Customer, have altered its position and reliance on the validity of that payment.

5. Delivery and Installation

5.1 Delivery shall be deemed to take place at the time when the products are made available for dispatch at LOUVRE SPAN’s premises and shall be made at LOUVRE SPAN’s premises unless otherwise agreed to in writing between LOUVRE SPAN and the Customer. If LOUVRE SPAN subsequently arranges transportation, shipping, storage or insurance of the products, LOUVRE SPAN does this as the Customer’s agent. The Customer shall indemnify   LOUVRE SPAN for any liability incurred by LOUVRE SPAN in providing this service and pay any transportation costs incurred as a result (except where the contract specifies that LOUVRE SPAN is responsible for such transportation costs).  LOUVRE SPAN may deliver the products by instalments, and each instalment shall be treated as a separate contract under the terms of the contract. If  LOUVRE SPAN fails to deliver or makes defective delivery of part of the products, this does not entitle the Customer to cancel the contract. Any time stated for delivery is an estimate only.  LOUVRE SPAN is not liable for any delay in delivery. Except where expressly agreed in writing by  LOUVRE SPAN, the Customer is responsible for insurance of the product. Insurance shall be for full replacement value and include cover for delivery of the products.  LOUVRE SPAN will endeavour to meet the Customer’s delivery requirements at all times, but gives no guarantee it will do so.  LOUVRE SPAN will use its best endeavours to advise the Customer of any delays due to product unavailability or any other reason. All products are at the Customer’s own risk as soon as they are made available for dispatch.  LOUVRE SPAN reserves the right to deliver after the requested date/time due to traffic /shipping delays or any delays beyond   LOUVRE SPAN’s control. Where practical LOUVRE SPAN will inform you prior to delivery.

5.2 LOUVRE SPAN is under no obligation to commence work until any deposit has been paid, or to continue work while any outstanding invoices are in arrears.

6. Product Returns AND REMEDIAL WORK

6.1 Products that are procured or made to specific customer requirements are not returnable. Any freight or delivery charges on products returned are non-refundable. Where LOUVRE SPAN at its discretion allows the Customer to return products other than defective or non-complying products, LOUVRE SPAN reserves the right to charge a return fee equal to 25% of the price of such products. Any product accepted for return must be in original order and in the same condition as when delivered/collected. Where product is being returned the Customer is responsible for arranging the return of the product at their cost.

7. Warranties

7.1 Products supplied by LOUVRE SPAN will be of a specification that is suitable for general industrial purposes and complies with all applicable laws. Where the Customer has provided specifications for any products, the products supplied by LOUVRE SPAN will meet those specifications. Where the Customer believes for any reason that any products supplied by LOUVRE SPAN breach this provision, the Customer shall immediately advise   LOUVRE SPAN and give LOUVRE SPAN the option to remedy such products at LOUVRE SPAN’s cost should LOUVRE SPAN accept that there has been a breach.  In the event the Customer engages a third party to attend such remedial work, the full price for the products shall remain payable by the Customer and LOUVRE SPAN will have no liability for any loss in respect thereof that the Customer may claim.

7.2 LOUVRE SPAN may rely on any plans, specifications, information or quality and/or other standard of any manufactured product used and supplied by the Customer in which case LOUVRE SPAN makes no warranty as to the suitability for purpose of the products and has no liability whatsoever for any loss or damage caused or contributed to by the provision of such information or any other act or instructions of the Customer.

8. Limitation of Liability

8.1 To the maximum extent permitted by law, LOUVRE SPAN is not liable for any indirect, incidental, or consequential loss or damage. This includes (but is not limited to) loss of profits, loss of revenue, loss of savings, loss of data, or any similar loss, regardless of the cause or whether the possibility of such loss was known to either party.

8.2 Subject to Clause 8.1, LOUVRE SPAN’s total liability to the Customer for any claim arising out of or in connection with this Agreement (whether in contract, tort, equity, or otherwise) is limited in aggregate to the total price paid by the Customer for the products or services to which the claim relates.

8.3 Any claim the Customer wishes to make must be notified to LOUVRE SPAN in writing within 7 days of delivery for defects, and in all cases no later than 6 months after the Customer takes delivery of the products, unless LOUVRE SPAN agrees in writing to extend this period.

8.4 Where products are acquired for business purposes, the Customer agrees that the Consumer Guarantees Act 1993 does not apply. If the Customer supplies the products to any other person for business purposes, the Customer must also contract out of the Consumer Guarantees Act 1993 with that person and indemnify LOUVRE SPAN for any failure to do so.

8.5 If the Customer believes any products are defective or do not comply with this Agreement, the Customer must notify LOUVRE SPAN immediately and give LOUVRE SPAN a reasonable opportunity to inspect and remedy the issue. LOUVRE SPAN may, at its discretion:

(a) repair the products;

(b) replace the products; or

(c) refund the price paid.

8.6 LOUVRE SPAN is not liable for any loss or damage arising from:

(a) any specifications, plans, measurements, or information provided by the Customer.

(b) any instructions, acts, or omissions of the Customer or any third party; or

(c) any modifications, misuse, or installation carried out by persons other than LOUVRE SPAN (where applicable).

8.7 Nothing in this clause is intended to contract out of the Consumer Guarantees Act 1993 except to the extent permitted by law. These terms must be modified only to the extent necessary to give effect to that intention.

9. Customer Liability

9.1 Orders of all products must be in accordance with LOUVRE SPAN’s instructions or otherwise advised in writing by   LOUVRE SPAN. All orders must be paid for by authorising  LOUVRE SPAN to charge a nominated payment facility. The Customer is liable for all orders accepted by LOUVRE SPAN. The Customer agrees to indemnify   LOUVRE SPAN against any claims or damages arising from the use or misuse of the Customer’s account by any other person. The Customer agrees to indemnify LOUVRE SPAN for any physical, direct or indirect damage, loss (including consequential loss and loss of profit) or cost (including legal and lawyer/client costs) to LOUVRE SPAN resulting from an omission or act (including the Customer failing to pay for the product) of the Customer. The Customer will protect LOUVRE SPAN from any claim or proceedings against   LOUVRE SPAN to the extent caused or contributed to by the Customer in respect of this contract or by a product after risk or title has passed to the Customer. The Customer shall be responsible for the safe custody of any product and shall take steps to ensure any product is maintained in good condition (fair wear and tear excepted).

10. Title and Security

10.1 Title in any products supplied by LOUVRE SPAN passes to the Customer only when the Customer has made payment in full for all products provided by LOUVRE SPAN and of all other sums due to LOUVRE SPAN by the Customer on any account whatsoever. Until all sums due to LOUVRE SPAN by the Customer have been paid in full, LOUVRE SPAN has a Purchase Money Security Interest as that term is defined in the Personal Property Security Act 1999 (“PPSA”) in all products and all proceeds of sale of the products. Title to any product rented by the Customer from LOUVRE SPAN shall remain with LOUVRESPAN despite the term of any rental agreement. If the products are attached, fixed or incorporated into any property or premises of the Customer, by way of any manufacturing or assembly process by the Customer or any third party, title in the products shall remain with  LOUVRE SPAN until the Customer has made payment for all products, and where those products are mixed with other property so as to be part of or a constituent of any new products, title to these new products shall be deemed to be assigned to  LOUVRE SPAN as security for the full satisfaction by the Customer of the full amount owing between  LOUVRE SPAN and the Customer. The Customer gives irrevocable authority to  LOUVRE SPAN to enter any property or premises occupied by the Customer or on which products are situated at any reasonable time after default by the Customer or before default if   LOUVRE SPAN believes a default is likely and to remove and repossess any products and any other property to which products are attached or in which products are incorporated.  LOUVRE SPAN shall not be liable for any costs, damages, expenses or losses incurred by the Customer or any third party as a result of this action, nor liable in contract or in tort or otherwise in any way whatsoever unless by statute such liability cannot be excluded.   LOUVRE SPAN may either resell any repossessed products and credit the Customer’s account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs) or may retain any repossessed products and credit the Customer’s account with the invoice value thereof less such sum as  LOUVRE SPAN reasonably determined on account of wear and tear, depreciation, obsolescence, loss or profit and costs. Where products are retained by   LOUVRE SPAN pursuant to this clause, the Customer waives the right to receive notice under s.120 of the PPSA and to object under s.121 of the PPSA. The following shall constitute defaults by the Customer:

(a) Non-payment of any sum by the due date.

(b) The Customer intimates that it will not pay any sum by the due date.

(c) Any products are seized by any other creditor of the Customer or any other creditor intimates that it intends to seize products.

(d) Any products in the possession of the Customer are removed from the Customer’s premises or damaged while any sum due from the Customer to   LOUVRE SPAN remains unpaid.

(e) The Customer is bankrupted or put into liquidation or a receiver or administrator is appointed to any of the Customer’s assets or a landlord distrains against any of the Customer’s assets.

(f) A Court judgment is entered against the Customer and remains unsatisfied for 7 days.

(g) Any material adverse change in the financial position of the Customer.

(h) The Customer grants or attempts to grant a security interest in the products to a party other than LOUVRE SPAN.

(i) The Customer fails to ensure the product and note LOUVRE SPAN as an entitled party on such insurance.

10.2 The Customer acknowledges that LOUVRE SPAN may register a financing statement within the meaning of the PPSA in respect of any security interest created under these terms and conditions.

10.3 The Customer agrees it has no rights under, or by reference to sections 114(1)(a), 133 and 134. The Customer hereby waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA and waives its rights to receive a verification statement in respect of any financing statement or financing change statement.

11. Intellectual Property

11.1 All intellectual property used by   LOUVRE SPAN belongs to   LOUVRE SPAN or the registered owner of such marks. All intellectual property rights relating to such trademarks and all copyright and other intellectual property rights in respect of   LOUVRE SPAN’ products are the property and shall remain of   LOUVRE SPAN or in the care of registered trademarks, the owner of those trademarks. Any intellectual property created in any product, service, method, or otherwise under this agreement including any commissioned work shall be the property of   LOUVRE SPAN.

12. General Terms

12.1 If any provision of these terms and conditions is unlawful, void or unenforceable for any other reason, that provision shall be deemed severable and shall not affect the validity and enforceability of the remaining terms and conditions.

12.2 Any contract between LOUVRE SPAN and the Customer shall be governed by the Courts of New Zealand. If the Customer utilises the product outside New Zealand the Customer is responsible for compliance with the Customer’s local laws, if and to the extent such local laws apply.

12.3 Without limiting any other provisions of the contract, neither  LOUVRE SPAN nor the Customer shall be liable for any delay or failure in the performance of any obligation or the exercise of any right under the contract or for any loss or damage (including indirect or consequential loss or damage) if such performance or exercise is prevented or hindered in whole or in part by reason of a force majeure event. Nothing in this clause shall excuse payment of any money due or which becomes due under the contract. The rights and obligations of either party which are affected by a force majeure event shall be suspended during the continuance of the force majeure event, and either party claiming to be affected by the force majeure event shall give immediate notice to the other party containing full particulars of the force majeure event. The party giving notice under this clause shall take all reasonable steps to mitigate the effects of the force majeure event and remove such force majeure event provided that neither party shall be required to remove any such force majeure event if to do so would require it contrary to its judgment to settle a strike or labour dispute or otherwise submit to the demands of opposing parties.

12.4 Every effort has been made to ensure that all of the information supplied by LOUVRE SPAN is accurate and reliable. Its accuracy is, however, not guaranteed. All product is supplied to the Customer on the premise that the Customer will make its own determination as to its suitability for use.  LOUVRE SPAN will not be liable for any damages or liabilities whatsoever, including performance failures, errors, omissions, defects, interruptions and/or other failures.

12.5 Each provision in this contract survives to the extent unfulfilled and remains enforceable and does not merge on performance of another provision.

12.6 No delay or failure to act is a waiver. No waiver is affected unless it is in writing. A waiver of a breach is not a waiver of any other breach.

13. Words Used In This Contract

13.1 Unless the context requires the following words shall be defined as follows:

(a) “amounts owing” means any payments due in accordance with clause 3 together with any default interest in accordance with clause 9.

(b) “Contract” means these Terms of Trade together with any Purchase Order and any subsequent variation in writing agreed between the parties.

(c) “Customer” means the person purchasing the products from LOUVRE SPAN pursuant to the contract, including that person’s successors and assigns.

(d) “deposit” means the deposit specified in the Purchase Order.

(e) “GST” means Goods and Services Tax payable pursuant to the Goods and Services Tax Act 1985.

(f) “intellectual property” includes all rights to, and interest in, any patent, design, trademark, copyright, knowhow, trade secret and any other proprietary right or form of intellectual property (whether protectable by registration or not) in respect of any technology, concept, idea, data, programme, or other software (including, without limitation in source and object codes), specification, formula, drawing, programme, design, system, process, logo, mark, style or any other matter or thing, existing or conceived, used, developed, or produced by any person.

(g) “person” includes an individual, firm, company, corporation, unincorporated body of persons, Government or any Government body, agency or authority, and any other entity (whether incorporated or not) in each case whether or not having separate legal personality.

(h) “price” means the price for any goods and services supplied by LOUVRE SPAN.

(i) “products” means products ordered by the Customer from time to time under the contract and includes steel or other fabricated work, tooling, parts, machinery or other equipment supplied by LOUVRE SPAN and any goods or services forming part of the supply of the products.

13.2 References to the Consumer Guarantees Act 1993, the Privacy Act 1993, the Goods and Services Tax Act 1985 and the PPSA include such legislation from time to time amended, re-enacted or substituted and any statutory instruments regulations and orders issued under such legislation.