GENERAL TERMS AND CONDITIONS OF SALE FOR DOMINION SALT LIMITED (“Dominion Salt”)
For the purposes of these terms “Goods” means all goods supplied by Dominion Salt to any customer or buyer (the “Customer”) from time to time, and “GST” means goods and services tax within the meaning of the Goods and Services Tax Act 1985. The Goods are supplied on these terms. By placing an order for any Goods the Customer agrees to purchase and accept the Goods, on these terms. Please read the terms carefully and seek clarification from either Dominion Salt’s Sales Manager or your Solicitor if you are unclear on any point. No variation of these terms is permitted unless Dominion Salt has agreed in writing to such variation. Previous dealings between Dominion Salt and the Customer shall not vary or replace these terms or be deemed in any circumstances to do so.
Except as provided in the clause, Goods will be invoiced at the price plus GST contained in Dominion Salt’s most recent quotation on the date of delivery unless otherwise advised in writing by Dominion Salt. Dominion Salt may alter any prices without notice and the purchase price of the Goods payable by the Customer may be different from the price quoted in Dominion Salt’s price list or the price current when the Goods were ordered. Quoted prices may not be assumed to apply to variations.
3.1 Cash: Unless Dominion Salt agrees to payment being made in terms of clause 3.2, the Customer will pay for the Goods plus GST in cash on or before delivery.
3.2 Following Month: Where Dominion Salt agrees in writing that the sale of Goods is not a cash sale in terms of clause 3.1, the invoiced price of the Goods plus GST is to be paid by the Customer in full on the 20th of the month following the date of invoice for the Goods. If payment is not made on the due date, Dominion Salt may charge the Customer default interest at the rate of 2.5% above the rate charged by Dominion Salt’s bank for commercial overdraft facilities, on all money owing by the Customer to Dominion Salt from the due date for payment until the date payment is received by Dominion Salt. Payments made to Dominion Salt shall be applied first in payment of default interest and secondly, in reduction of invoiced amounts.
3.3 No Set Off: The Customer will make all payments due to Dominion Salt whether in respect of the price of the Goods or otherwise, in full without deduction or set off. The Customer will not withhold any amount as a retention except where Dominion Salt has agreed in writing that the Customer may withhold an agreed amount.
3.4 Default: In the event of default in due payment by the Customer to Dominion Salt, Dominion Salt is entitled to recover from the Customer any discount given on the defaulted purchase together with all costs and expenses howsoever incurred (including costs as between solicitor and own client) by Dominion Salt arising from or consequent on, obtaining or attempting to obtain payment of all or any money payable to Dominion Salt under these terms and conditions of sale.
4.1 Carrier: Dominion Salt is not a carrier and does not undertake the obligations or liabilities of a carrier pursuant to the Carriage of Goods Act 1979.
4.2 Collection of Goods: Unless otherwise agreed in terms of clause 4.3, delivery of the Goods will be deemed complete when the Goods are available for collection from Dominion Salt’s premises on the specified delivery date. The Customer shall be responsible for arranging the carriage of the Goods to the Customer’s premises.
4.3 Delivery of Goods: Where Dominion Salt has agreed to arrange the carriage of the Goods:
4.3.1 Complete: delivery will be deemed complete when the Goods arrive at the delivery address specified by the Customer (whether or not the Customer is present at the time of a delivery to acknowledge receipt);
4.3.2 Access: the Customer is responsible for ensuring, at the Customer’s cost, that the delivery address has sufficient and suitable means of access and if such access is not provided, the Customer will reimburse Dominion Salt for all of its consequential costs, (Dominion Salt shall, at its discretion, determine whether there is sufficient and suitable access and may leave the Goods as near to the delivery address as a safe, hard public road permits);
4.3.3 Lack of Access: if the Goods cannot be delivered (as a result of insufficient or unsuitable access or otherwise) or if the Customer fails or refuses to take delivery of any of the Goods at any specified delivery time, Dominion Salt may (without limiting any other right that Dominion Salt may have) charge the Customer for any of the following expenses incurred:
a) Truck Costs: hourly truck and driver rates for waiting time; and
b) Other Costs: transportation, disposal of the Goods or any other additional expenses incurred in relation to the Goods; and
4.3.4 Unloading: the Customer is responsible, at its cost, for unloading the Goods at the delivery address specified by the Customer, whether delivery is made by rail or road transport.
4.4 Delay: Dominion Salt will not be liable for loss, damage or delay of whatsoever nature or kind howsoever arising caused by circumstances outside its reasonable control or by unscheduled delays, provided however that all reasonable steps are taken to comply with the Customer’s preferred timetable for delivery. Any stated time for delivery is an estimate only. Late delivery or failure to deliver any Goods does not entitle the Customer to cancel any order or part order. The Customer shall notify Dominion Salt where Goods have not arrived within 3 days of the date for delivery.
4.5 Claims: All claims for errors or short delivery must be made to Dominion Salt in writing within five days of delivery. Dominion Salt is not liable for any shortages or damage to Goods where the Goods are left on-site unattended, following delivery.
4.6 Delivery Charges: Delivery charges are to the Customer’s account in the absence of prior agreement in writing to the contrary. The Customer will pay to Dominion Salt any additional costs or expenses incurred by Dominion Salt in delivering the Goods where it is necessary to leave a public road or street or paved or sealed road or street to deliver the Goods to the address requested by the Customer. Such additional costs or expenses include (but are not limited to) the following:
4.6.1 Damage: any amount that Dominion Salt may be liable to pay because of damage to property whether it’s own or that of any other person;
4.6.2 Vehicle Repairs: the cost of repairs to the delivery vehicle if it has been damaged during such delivery; and
4.6.3 Labour: additional labour costs incurred in such delivery.
Notwithstanding clause 6, the Customer bears the risk of any loss or damage to, or deterioration of, the Goods due to any cause whatsoever after delivery of the Goods. Until title to, and property in, the Goods passes to the Customer in accordance with clause 6, the Customer w ill insure the Goods against all usual risks for the full insurable value and treat the Goods with all proper care. Any insurance claims in respect of damage to, or destruction of, the Goods are hereby assigned by the Customer to Dominion Salt. The Customer hereby indemnifies Dominion Salt against any loss or damage to the Goods howsoever arising after delivery.
6.1 Title: Title to, and property in, the Goods (whether or not any of the Goods have been paid for by the Customer) will not pass to the Customer unless and until all amounts owing by the Customer to Dominion Salt, in respect of the Goods or otherwise have been paid. Until title to, and property in, the Goods passes to the Customer:
6.1.1 Bailee: all Goods are held by the Customer as Bailee for, and on behalf of, Dominion Salt;
6.1.2 Storage: the Customer will store the Goods in such a way that it is clear that the Goods are the sole property of Dominion Salt;
6.1.3 Entry: Dominion Salt is entitled to enter any premises in respect of which the Customer has a right of entry to view the Goods and check that the Goods are being stored pursuant to these terms;
6.1.4 Other Premises: if any of the Goods are stored on any premises other than the premises to which the Customer has a right of access, then the Customer will immediately notify the person or persons entitled to possession of such premises of the rights of Dominion Salt under these terms. The Customer will not place the Goods in any premises where Dominion Salt’s rights under these terms are not acknowledged by the person in possession thereof;
6.1.5 Use of Goods: the Customer may incorporate the Goods into another product subject to the condition that:
a) Mixture with Customer’s Goods: if the Goods are admixed or united in any way with those of the Customer, the resultant product shall become and shall be deemed to be for all purposes the sole property of Dominion Salt; and
b) Mixture with Third Parties Goods: if the Goods are admixed or united in any way with other goods which include goods of any other party, or are processed with or are incorporated therein, the resultant goods shall become and shall be deemed for all purposes to be owned in common by Dominion Salt with that other party on a pro-rata basis to be calculated by reference to the cost of the Customer of the incorporated materials;
6.1.6 Proceeds of Sale: if any of the Goods are sold or otherwise disposed of by the Customer, the Customer will have been deemed to have done so as agent for Dominion Salt. The Customer will hold the proceeds of such sale in a separate fund from its own or any third parties money and on trust for Dominion Salt.
7. PERSONAL PROPERTY SECURITIES ACT 1999
7.1 Security Interest: The Customer agrees that Dominion Salt holds a “security interest” in the Goods, and any proceeds of the sale of the Goods, pursuant to Section 17 of the Personal Property Securities Act 1999 (the “PPSA”) and may register a financing statement in respect of that security interest in accordance with the provisions of the PPSA.
7.2 Information and Documentation: The Customer shall provide all information, execute or arrange for execution of all documents and do all other things that Dominion Salt may require to ensure that Dominion Salt has a perfected first ranking security interest in the Goods and proceeds of sale under the PPSA. The Customer shall immediately upon request by Dominion Salt, procure from any person considered by Dominion Salt to be relevant to its security position such agreements and waivers as Dominion Salt may at any time require.
7.3 Waiver of Rights: The Customer waives its rights to receive a verification statement in respect of any financing statement or financing change statement registered by Dominion Salt under the PPSA and agrees that as between Dominion Salt and the Customer, the Customer shall have no rights under (or by reference to) sections 114(1)(a), 116, 120(2), 121, 125, 129, 131, 133 and 134 of the PPSA and where Dominion Salt has rights in addition to those in Part 9 of the PPSA, those rights shall continue to apply.
7.4 Change in Details: The Customer shall immediately notify Dominion Salt of any change in the Customer’s name, address details and any other information provided to Dominion Salt to enable Dominion Salt to register a financing change statement if required.
If any amount payable by the Customer to Dominion Salt is overdue, or the Customer fails to comply with any other obligation owed to Dominion Salt, or in Dominion Salt’s opinion the Customer is likely to be unable to meet its obligations to Dominion Salt or the Customer becomes insolvent, has a receiver appointed in respect of all or some of the Customer’s assets, makes or is likely to make an arrangement with the Customer’s creditors or has a liquidator (provisional or otherwise) appointed or is placed under statutory management then, without prejudice to any other remedy of Dominion Salt:
8.1 Cancel: Dominion Salt is entitled to cancel all or any part of any contract or contracts with the Customer which remains unperformed; and
8.2 Immediate Payment: all amounts outstanding under all the then current contracts between the Customer and Dominion Salt will, whether or not due for payment, immediately become due and payable; and
8.3 Reclaim: Dominion Salt is entitled to reclaim any Goods which are in the Customer’s possession or control and to dispose of them for Dominion Salt’s own benefit and for that purpose Dominion Salt shall be entitled, without notice, to enter directly or by its agents on any premises where it believes the Goods which it has supplied may be, without in any way being liable to any person.
9.1 Business Use: If the Customer is, or holds itself out, as purchasing the Goods for the purposes of a business (as defined in the Consumer Guarantees Act 1993) it is hereby expressly agreed that the guarantees implied by the Consumer Guarantees Act 1993 are excluded. Other than as expressly required by law (including but not limited to the Consumer Guarantees Act 1993) Dominion Salt makes no other representations, warranties or conditions, express or implied as to the nature or quality of the Goods, and any and all other representations, warranties, terms implied by any laws including but not limited to the Sale of Goods Act 1908, are excluded.
9.2 As Permitted by Law: To the extent permitted by law:
9.2.1 Condition of Goods: no liability whatsoever is accepted by Dominion Salt as to the condition of the Goods after leaving Dominion Salt’s premises unless Dominion Salt has agreed to deliver the Goods, in which case liability shall cease at the time the Goods are delivered at the delivery address specified by the Customer;
9.2.2 Use of Goods: Dominion Salt is not liable for any consequential, incidental or special damages arising directly or indirectly from the use of the Goods in any circumstances whatsoever; and
9.2.3 Re-Supply: Dominion Salt’s liability is limited to the re-supply of any defective Goods.
10. CUSTOMER WARRANTIES
The Customer warrants that it will correctly advise its customers as to the purposes to which Goods should or should not be put and it will effectively and in writing contract out of the Consumer Guarantees Act 1993 whenever it agrees to supply Goods to a customer for the purposes of that customer’s business.
11. INFORMATION COLLECTION AND CREDIT CHECKING
11.1 Information held, used and collected: The Customer authorises Dominion Salt to hold, use and collect the Customer’s personal information for the purposes of providing Goods under these terms, marketing of Dominion Salt’s Goods and credit checking /referencing purposes (including assessing the Customer’s eligibility for credit and on-going credit worthiness, management of the Customer’s account, fraud prevention, collecting of payments from the Customer and enforcing any rights against the Customer) (Permitted Purpose).
11.2 Collection: The Customer authorises:
11.2.1 Dominion Salt to obtain from any person or entity (including lenders, credit providers, credit reporting/reference agencies, debt collection agencies or other service providers (Third Parties)) any information which Dominion Salt may require for the Permitted Purpose; and
11.2.2 Third Parties to provide all information about the Customer as requested by Dominion Salt and waives any claim against the Third Parties for provision of such information.
11.3 Disclosure: The Customer authorises Dominion Salt to disclose to Third Parties the Customer’s personal information, together with details of the credit application, any default under these terms, the manner in which the Customer operates its credit account with Dominion Salt and any other information relevant to the Permitted Purpose.
11.4 Storage and Accessibility: The information collected by Dominion Salt will be held securely at its head office. The information will be accessible to any of Dominion Salt’s employees and agents who need access to it for the administration of Dominion Salt’s business.
11.5 Access for correction: The Customer may request access to and correction of any information about the Customer held by Dominion Salt at any time. Dominion Salt may charge reasonable costs for providing access to that information.
12.1 Charge: Where pallets are supplied by Dominion Salt in connection with the supply of Goods, unless otherwise agreed, the cost of such pallets shall be charged to the Customer, at rates per pallet to be determined by Dominion Salt from time to time. Such charge shall be refundable upon the pallet being returned to Dominion Salt in good condition by the same carrier who delivered it to the Customer and upon Dominion Salt receiving notification from the Customer that the pallet has been returned.
12.2 Carriers: All carriers who are contracted by Dominion Salt to deliver Goods will return pallets to Dominion Salt at no cost to the Customer, however, prior notice must be given to the carrier that pallets are available for return as the carrier will not always be able to uplift empty pallets without notice. If another carrier is used to return pallets other than the carrier who delivered such pallets the Customer must pay any costs payable to the carrier used.
12.3 Means of Return: Where Goods are delivered by rail, pallets must be returned by rail, not by road transport.
12.4 Brambles New Zealand Limited Pallets: Notwithstanding clauses 12.1 to 12.3 above and except where otherwise inconsistent with these terms and conditions of sale, where Goods are delivered to the Customer on pallets hired from Brambles New Zealand Limited (which trades as Chep Handling Systems), Brambles New Zealand
Limited’s terms of hire (the “terms of hire”) shall apply in respect of such pallets and the Customer agrees, that from the time of delivery of the Goods, such pallets will be transferred to the Customer as referred to in the terms of hire.
13.1 Enforcement: If at any time Dominion Salt does not enforce any of these terms or grants the Customer time or other indulgence, Dominion Salt will not be construed as having waived that term or condition or its rights to later enforce that or any other term or condition.
13.2 Goods Returned for Credit: Prior written consent, detailing disposal or return instructions must be obtained from Dominion Salt before any Goods will be credited. Dominion Salt accepts no responsibility for Goods returned without its consent.
13.3 References: References to clauses in these terms are references to the clauses in these terms. All clauses words, phrases, sentences and paragraphs in these terms are separate and independent from the others, each one being able to be severed from the other, and if any of them or any part of them, are held or found to be void, invalid, unenforceable or otherwise ineffective by operation of law, they shall be deemed to be severed from these terms to the extent of the voidance, invalidity or unenforceability but the remainder shall remain in full force and effect.
13.4 Sub-Contract: The right of Dominion Salt to sub-contract the whole or any part of any order for Goods is hereby reserved.
13.5 Entire Understanding: Dominion Salt and the Customer acknowledge that these terms express the entire understanding and agreement between them, and that there have been no representations made by either party to the other except as expressed in these terms. If there is any inconsistency between these terms and any order that may be lodged by the Customer or any other agreement, then these terms will prevail, unless otherwise agreed to in writing by Dominion Salt.
13.6 Further Rights: Dominion Salt reserves the right to:
13.6.1 Suspend: suspend the supply of any order in whole or in part or to discontinue the supply of Goods and services to the Customer without incurring any liability whatsoever and without being obliged to give any reason for its action pending the provision of a guarantee or further guarantee or otherwise;
13.6.2 Part Delivery: make part delivery of any order and each part delivery shall constitute a separate contract of supply;
13.6.3 Alter: alter these terms by written notice to the Customer and such revised terms will thereafter apply to subsequently supplied Goods; and
13.6.4 Supply: supply Goods from either its Mount Maunganui or Lake Grassmere refinery without notice so as to assure continuity of supply at all times.
13.6.5 Force Majeure: Notwithstanding anything to the contrary in these terms and conditions of sale, if performance by Dominion Salt of any of these terms and conditions of sale is prevented or delayed by any act or event beyond the reasonable control of Dominion Salt, then Dominion Salt shall be excused from such performance for as long as the cause preventing or delaying performance persists. However, Dominion Salt will use reasonable endeavours to avoid or remove the cause of non-performance or delay and will resume performance when the cause has been avoided or removed.
13.6.6 Customary Tolerances: All customary chemical industry tolerances will apply to the dimensions and measurements of the Goods unless Dominion Salt and the Customer agree otherwise in writing.