Christchurch Powder Coaters Limited ("CPC") is engaged in the business of supplying, distributing and applying advanced industrial coatings and repair and maintenance solutions. These terms and conditions (“Terms") apply to all contracts between CPC and yourself. By placing an order with CPC, you agree to be bound by these Terms.
In these Terms, unless the context provides otherwise:
“Force Majeure Event” includes any strike, industrial dispute, natural disaster, shortage of labour or other causes beyond the reasonable control of CPC.
“Confidential Information” means all information which you receive from CPC which is confidential in nature, including but not limited to information of the price of Products and Services of CPC, business method and other confidential or commercially sensitive information.
“Order” means an order placed by you for CPC’s products and/or services and approved by CPC.
“Price” means CPC’s fees and costs for fulfilling an Order, excluding shipping and handling fees and special packaging materials unless stated otherwise in writing.
“Products” means all products purchased by you pursuant to an Order and these Terms.
“Services” means any powder coating services provided to you by CPC pursuant to an Order and these Terms.
2.1 CPC shall supply products and/or services to you at the price stated in the quote if a quote is provided. All sums specified in the quote are in New Zealand dollars.
2.2 All prices quoted by CPC are valid for thirty (30) days, unless stated otherwise in writing.
2.3 Orders may not be changed or cancelled without CPC’s prior written consent.
(a) In the event of a request to change an Order, the parties shall agree on an appropriate adjustment in the Price as a result of the change.
(b) In the event you cancel an Order, you shall be liable for all costs or losses incurred by CPC as a result of the cancellation.
3.1 An invoice stating the date of the purchase will be provided for all Orders. Unless agreed otherwise in writing, all amounts owed are payable by you on the 20th of the month following invoice.
3.2 In the event you fail to pay any amounts owing under an invoice or otherwise to CPC by the due date for payment, you are required to pay on demand interest at the rate of 12% per annum on amounts unpaid from the due date for payment to the date of payment calculated daily.
3.3 All customers of CPC, upon request are required to apply for a credit account with CPC. In the event that a credit account has not been confirmed by CPC, a customer may be required to pay for an Order prior to collection. The credit account application process will include but is not limited to completing a credit application form, confirmation of a director(s)’s personal guarantee and acceptance of the Personal Properties Securities Register registration charge.
3.4 The Director(s) of the company purchasing the goods will personally guarantee all debt incurred by the company, including all penalties incurred due to late payment.
4.1 In respect of all Services provided, CPC shall comply with all applicable New Zealand environmental, occupational health and safety laws.
4.2 Upon request, CPC shall provide you with relevant SDS for chemicals, hazardous materials, for Products used in the performance of the Services.
5.1 CPC will use its best endeavours to arrange for timely delivery of the Services and any Products by the date for delivery specified in the Order. However, all delivery dates are an estimate only and CPC shall not be liable for a failure to deliver by the specified date or for any resulting losses you suffer as a result of a delay in delivery.
5.2 In the event CPC has indicated to you that the Orders are ready to be collected then collection must be completed within a timely manner. CPC may agree to hold orders on behalf past this date and may charge a storage fee. You shall be responsible for the Products after the date of CPC notifying you of the collection.
5.2 You are deemed to have accepted the Orders as delivered unless you provide CPC with written notice of non-acceptance within fourteen (14) days of delivery. The notice must specify the reason for non-acceptance.
5.3 At its sole discretion, CPC may deliver the Orders in instalments.
6.1 In the event you consider any Orders delivered are faulty, defective, incomplete or incorrect, you must inform CPC within fourteen (14) days from the date of delivery, time being of the essence. The notice must specify the nature and extent of the fault or defect and any other relevant details.
6.2 Upon receipt of your notice, CPC shall arrange for inspection of the items within Orders. While CPC undertakes an inspection, all amounts outstanding under your invoice remain payable by the due date of payment.
6.3 CPC shall either repair or offer you a credit note for any items authorised by CPC to be returned. In the event of any disagreements, the dispute resolution mechanism contained in these Terms shall apply. All intended repairs and remedial works must be returned to CPC as per the original Order.
7.1 Delivery will be complete and risk in the items within an Order passes to you upon collection. For the benefit of doubt CPC is not responsible for transport damage.
Nothing in these Terms transfers ownership in any intellectual property rights to which CPC owns. You may not use the intellectual property rights of CPC (including but not limited to copyright, trademarks and branding) in any way without the prior written approval of CPC.
9.1 You shall be liable for all loss, damage or injury incurred or suffered by CPC which arises directly or indirectly from your breach of these Terms or negligence unless such loss was contributed in whole or part by CPC and only to the extent of CPC’s contribution.
9.2 To the extent possible, all conditions, guarantees or warranties are excluded. You agree you have not relied on any representation, warranty or agreement not included in these Terms.
9.3 In any event, the aggregate liability of CPC whether in contract, tort or otherwise for any loss, damage or injury arising directly or indirectly from the Products or Services or breach of these Terms shall not exceed an amount equivalent to the Price invoiced by CPC for the Product and/or Service rendered.
9.4 CPC shall not be liable to you for any indirect, consequential or incidental loss or damages incurred or suffered by you.
You will indemnify CPC for all costs and losses incurred by CPC as a result of your default or breach of these Terms, including expenses, losses or legal fees incurred in enforcing its rights pursuant to these Terms.
11. Collection of Information
11.1 You acknowledge and accept that CPC may collect, hold and use information about or from you in connection with these Terms. Such information will only be used by CPC in connection with your business relationship with CPC, including but not limited to improving its relationship with you, promotional purposes and to protect its rights.
11.2 You agree that CPC may share any information with any of its related companies (whether within or outside of New Zealand) in connection with these Terms.
12. Changes in Structure
In the event you intend to change your business ownership, CPC reserves the right to review any credit terms offered.
13. Confidential Information
13.1 You must keep confidential all Information and only use the Information to the extent necessary to perform your obligations under these Terms.
13.2 You may not disclose the Information without the prior written consent of CPC or unless you are disclosing the Confidential Information pursuant to a court order or any other order of a law enforcement or governmental agency.
13.3 Prior to any disclosure of Information, you must inform CPC in writing of what information you intend to disclose and provide CPC with an opportunity to assess and limit disclosure of any information to the extent permissible by law.
14. Review and Termination
14.1 CPC reserves the right to review all or any of these Terms upon the occurrence of any of the following:
(a) you go into liquidation, have a receiver or statutory manager appointed, or you are wound up otherwise than for the purpose of a reconstruction approved by CPC, or a meeting is called for the purpose of considering the appointment of a liquidator;
(b) you propose or enter into any scheme of arrangement or composition with your creditors;
(c) You are convicted of any serious criminal offence;
(d) you commit a breach of these Terms or any other agreement entered into with CPC and (if the breach is capable of being rectified) fail to rectify such breach within fourteen (14) days of notice from CPC requiring rectification of it;
(e) you fail to pay any amount due under these Terms within fourteen (14) days from the due date of payment;
(f) you your financial position or stability is materially adversely affected;
(g) you inform a third party you will, or intend to, cease trading;
(h) you act in manner which is detrimental to the rights, goodwill or reputation of CPC;
(i) you being a partnership, the partnership is terminated or dissolved, or if any change occurs in the membership of the partnership without CPC’s prior written approval, or if any member of the partnership is placed in liquidation.
14.2 Termination of these Terms does not relieve you from liability for prior breaches of these Terms or your obligations to pay amounts owed to CPC, which amounts become payable immediately upon termination notwithstanding that the date for payment may not have arrived.
14.3 In addition to any rights CPC may have, upon termination of these Terms CPC may:
(a) Charge you interest payable on all amounts of money from time to time outstanding from you to CPC under these Terms, calculated daily from the due date for payment until the actual date of payment;
(b) Take any steps necessary to recover any amounts outstanding under these Terms from you or any of your guarantors;
(c) Obtain damages for any losses incurred by CPC as a result of your default.
To the extent permitted by law, the Consumer Guarantees Act 1993 does not apply to these Terms.
16.1 CPC’s shall not be liable for any failure or delay in supplying or delivery Products and/or Services due to a Force Majeure Event.
16.2 Upon becoming aware of a Force Majeure Event, CPC shall promptly give written notice to you specifying the cause and extent of its inability to perform its obligations under these Terms and the likely duration of such non-performance.
16.3 During the period that CPC is unable to perform its obligations, it shall take all reasonable steps to remedy or abate the force majeure.
16.4 Time for delivery or performance of obligations for the party invoking this clause shall be extended for the period of the delay caused unless the delay exceeds six (6) months from the delivery date or due date of performance of obligations, in which case either party may cancel the undelivered portion of the Order or unperformed part of these Terms on providing seven days written notice to the other.
16.5 Cancellation of any outstanding Order under this clause will not affect the accrued rights or liabilities of any party.
17.1 Where any question, dispute or difference arises between the parties concerning or arising out of the interpretation or performance by any party of the provisions of these Terms, the parties will make a genuine effort to resolve the question, dispute or difference without resorting to litigation, using the procedures set out in these Terms.
17.2 The party initiating the question, dispute or difference (“the first party”) shall provide written notice to the other party or parties (“the other party/parties”) and shall nominate in that notice the first party’s representative for the negotiations. The other party/parties shall then promptly give written notice to the first party naming the other party’s representative for the negotiations. Each representative nominated will have authority to settle or resolve the question, dispute or difference.
17.3 If the parties are unable to resolve the question, dispute or difference by discussion and negotiation within fourteen (14) days of receipt of the written notice from the first party, the dispute shall be referred to Mediation. The Mediation shall in all respects be conducted in terms of the LEADR New Zealand Incorporated standard Mediation Agreement.
17.4 The Mediation shall be conducted by a Mediator in New Zealand at a fee agreed by the parties, failing agreement between the parties, the Mediator shall be selected, and the mediator’s fee shall be determined by the Chair for the time being of the LEADR New Zealand Incorporated.
17.5 If the dispute remains unresolved fourteen (14) days after commencement of the Mediation, the question, dispute or difference shall be referred to the arbitration of a single arbitrator to be appointed by the parties or failing agreement to be appointed by the President for the time being of the Arbitrator’s Institute of New Zealand Inc. Such arbitration shall be carried out in New Zealand and in accordance with the provisions of the Arbitration Act 1996 or any statutory modification or re-enactment for the time being in force.
17.6 A party who seeks urgent interlocutory relief may, by written notice to each other party to the dispute, elect not to comply with the dispute resolution provisions in these Terms, but only to the extent of the relief sought and for the period required to dispose of the application for such interlocutory relief. Except to that extent, on the disposal of the application the dispute resolution provisions shall once again take effect.
18.1 These Terms are governed by the laws of New Zealand, and the parties submit to the exclusive jurisdiction of New Zealand courts in respect of any dispute or proceeding arising out of these Terms.
18.2 All sums referred to in these Terms are expressed to be and are payable in New Zealand dollars.
18.3 References to statutes, regulations ordinance or by-laws shall be deemed to extend to all statutes, regulations, ordinances or by-laws amending, consolidating or replacing them.
18.4 These Terms set out the entire agreement between the parties regarding the provision of the Products and/or Services. Any alleged term, condition, representation or warranty not set out in these Terms shall not be binding on the parties.
18.5 CPC may amend these Terms from time to time. By placing an order with CPC after the changes have been made, you are deemed to have accepted the changes.
18.6 You may not deduct or set off any amounts from any amount you owe to CPC.
18.7 The invalidity of any part of these Terms will not affect the enforceability of the rest of these Terms.
18.8 Failure by CPC at any time to enforce any provision of these Terms is not a waiver of such provision and does not affect the validity of these Terms.
18.9 You may not assign your rights and obligations under these Terms to a third party without the prior written consent of CPC.