Industrial Minerals (NZ) Ltd  

Terms and Conditions of Trade

1.     DEFINITIONS

1.1       “Industrial Minerals” shall mean Industrial Minerals (NZ) Limited, or any agents or employees thereof.

1.2       “Customer” shall mean the Customer, any person acting on behalf of and with the authority of the Customer, or any person purchasing products and services from Industrial Minerals.

1.3       “Products” shall mean:

1.3.1       All Products of the general description specified on the front of this agreement and supplied by Industrial Minerals to the Customer; and

1.3.2       All Products supplied by Industrial Minerals to the Customer; and

1.3.3       All inventory of the Customer that is supplied by Industrial Minerals; and

1.3.4       All Products supplied by Industrial Minerals and further identified in any invoice issued by Industrial Minerals to the Customer, which invoices are deemed to be incorporated into and form part of this agreement; and

1.3.5       All Products that are marked as having been supplied by Industrial Minerals or that are stored by the Customer in a manner that enables them to be identified as having been supplied by Industrial Minerals; and

1.3.6       All of the Customer’s present and after-acquired Products that Industrial Minerals has performed work on or to or in which goods or materials supplied or financed by Industrial Minerals have been attached or incorporated.

1.3.7       The above descriptions may overlap but each is independent of and does not limit the others.

1.4       “Products” shall also mean all products, goods,  services and advice provided by Industrial Minerals to the Customer and shall include without limitation  the importing, exporting, distribution and supply of industrial minerals, sandblasting equipment, all technical advice and products and all charges for labour, hire charges, insurance charges, or any fee or charge associated with the supply of Products by Industrial Minerals to the Customer.

1.5       “Price” shall mean the cost of the Products as agreed between Industrial Minerals and the Customer and includes all disbursements eg charges Industrial Minerals pay to others on the Customer's behalf subject to clause 4 of this contract.

2.     ACCEPTANCE

2.1       Any instructions received by Industrial Minerals from the Customer for the supply of Products shall constitute a binding contract and acceptance of the terms and conditions contained herein.

3.     COLLECTION AND USE OF INFORMATION

3.1       The Customer authorises Industrial Minerals to collect, retain and use any information about the Customer, for the purpose of assessing the Customer’s credit worthiness, enforcing any rights under this contract, or marketing any Products provided by Industrial Minerals to any other party.

3.2       The Customer authorises Industrial Minerals to disclose any information obtained to any person for the purposes set out in clause 3.1.

3.3       Where the Customer is a natural person the authorities under clauses 3.1 and 3.2 are authorities or consents for the purposes of the Privacy Act 1993.

4.     PRICE

4.1       Where no price is stated in writing or agreed to orally the Products shall be deemed to be sold at the current amount as such Products are sold by Industrial Minerals at the time of the contract.

4.2       The price may be increased by the amount of any reasonable increase in the cost of supply of the Products that is beyond the control of Industrial Minerals between the date of the contract and delivery of the Products.

5.     PAYMENT

5.1       Payment for Products shall be made in full on or before the 20^th day of the month following the date of the invoice (“the due date”).

5.2       Interest may be charged on any amount owing after the due date at the rate of 2.5% per month or part month.

5.3       Any expenses, disbursements and legal costs incurred by Industrial Minerals in the enforcement of any rights contained in this contract shall be paid by the Customer, including any reasonable solicitor’s fees or debt collection agency fees.

5.4       Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.

5.5       A deposit may be required.

6.     QUOTATION

6.1       Where a quotation is given by Industrial Minerals for Products:

6.1.1       Unless otherwise agreed the quotation shall be valid for thirty (30) days from the date of issue; and

6.1.2       The quotation shall be exclusive of goods and services tax unless specifically stated to the contrary;

6.1.3       Industrial Minerals reserve the right to alter the quotation because of circumstances beyond its control.

6.1.4       The quote must be signed by the Managing Director.

6.2       Where Products are required in addition to the quotation the Customer agrees to pay for the additional cost of such Products.

7.     RISK

7.1       The Products remain at Industrial Minerals’ risk until delivery to the Customer.

7.2       Delivery of Products shall be deemed complete when Industrial Minerals gives possession of the Products directly to the Customer or possession of the Products is given to a carrier, courier, or other bailee for purposes of transmission to the Customer.

8.     DELIVERY

8.1       Industrial Minerals shall not be responsible or liable in any way to the Customer for any default or delays in the delivery of the order or any part of it nor for any direct or consequential loss or damage arising from such delays or default and no such delay shall relieve the Customer from any obligation to pay for any goods already delivered, or, to accept delivery of any goods ordered.  No order may be withdrawn or altered without the written consent of the seller.

8.2       Where, in Industrial Minerals opinion, any dispute arises between Industrial Minerals and the Customer as to the performance by either the Customer or Industrial Minerals of any term, warranty, or condition of any contract, Industrial Minerals shall have the right to suspend supply until, in the opinion of Industrial Minerals, the dispute shall have been settled.

8.3       The Customer shall ensure safe and adequate access to any site for delivery of the goods, and Industrial Minerals may refuse to deliver to any site if it is of the opinion that delivery would be unsuitable or unsafe.  The Customer shall indemnify Industrial Minerals for all cost, liabilities, or damages which may arise out of delivery to any site to which adequate access cannot be obtained.

8.4       The Customer, in all cases, will accept full responsibility for the receipt and return of containers when containers are supplied to their site or specified destination.  Any demurrage or detention charges incurred will be payable, in full, by the Customer to Industrial Minerals.

9.     PALLETS

9.1       Pallets will be invoiced at Industrial Minerals current rate for each pallet used in the delivery of goods.  Industrial Minerals pallets may be returned for a full credit at Industrial Minerals original invoice value provided the same shall be received by Industrial Minerals in a good condition.

9.2       Freight for the returned pallets is the Customers responsibility except where Industrial Minerals contracted carrier/s are used and the return is accompanied by a consignment note endorsed “at the carriers convenience”.

9.3       A credit is issued only upon receipt of the pallet or upon proof of delivery to Industrial Minerals carrier.

10.   TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999)

10.1     Title in any Products supplied by Industrial Minerals passes to the Customer only when the Customer has made payment in full for all Products provided by Industrial Minerals and of all other sums due to Industrial Minerals by the Customer on any account whatsoever.  Until all sums due to Industrial Minerals by the Customer have been paid in full, Industrial Minerals has a security interest in all Products.

10.2     If the Products are attached, fixed, or incorporated into any property 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 Industrial Minerals 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 deemed to be assigned to Industrial Minerals as security for the full satisfaction by the Customer of the full amount owing between Industrial Minerals and Customer.

10.3     The Customer gives irrevocable authority to Industrial Minerals to enter any premises occupied by the Customer or on which Products are situated at any reasonable time after default by the Customer or before default if Industrial Minerals 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.  Industrial Minerals 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.  Industrial Minerals 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 Industrial Minerals reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.

10.4     Where Products are retained by Industrial Minerals pursuant to clause 10.3 the Customer waives the right to receive notice under s.120 of the Personal Property Securities Act 1999 (“PPSA”) and to object under s.121 of the PPSA.

10.5     The following shall constitute defaults by the Customer:

10.5.1     Non payment of any sum by the due date.

10.5.2     The Customer intimates that it will not pay any sum by the due date.

10.5.3     Any Products are seized by any other creditor of the Customer or any other creditor intimates that it intends to seize Products.

10.5.4     Any Products in the possession of the Customer are materially damaged while any sum due from the Customer to Industrial Minerals remains unpaid.

10.5.5     The Customer is bankrupted or put into liquidation or a receiver is appointed to any of the Customer’s assets or a landlord distains against any of the Customer’s assets.

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

10.5.7     Any material adverse change in the financial position of the Customer.

10.6     If the Credit Repossession Act applies to any transaction between the Customer and Industrial Minerals, the Customer has the rights provided in that Act despite anything contained in these terms and conditions of trade.

11.   DISPUTES

11.1     No claim relating to Products will be considered unless made within seven (7) days of delivery.

11.2     Products are only accepted for return at the sole discretion of Industrial Minerals.  A 15% restocking fee shall apply to any Products accepted for return.

12.   LIABILITY

12.1     The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon Industrial Minerals which cannot by law (or which can only to a limited extent by law) be excluded or modified.  In respect of any such implied warranties, conditions or terms imposed on Industrial Minerals, Industrial Minerals’ liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.

12.2     Except as otherwise provided by clause 12.1 Industrial Minerals shall not be liable for:

12.2.1     Any loss or damage of any kind whatsoever, arising from the supply of Products by Industrial Minerals to the Customer, including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Products provided by Industrial Minerals to the Customer; and

12.2.2     If, contrary to Industrial Minerals’ disclaimer of liability contained herein, any liability of Industrial Minerals is deemed to arise, then such liability is limited to and shall not in aggregate exceed the contract price.

12.2.3     The Customer shall indemnify Industrial Minerals against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of Industrial Minerals or otherwise, brought by any person in connection with any matter, act, omission, or error by Industrial Minerals its agents or employees in connection with the Products.

13.   ADVICE

13.1     The Customer shall ensure that the goods are not used for any purpose for which they are not suitable and shall be responsible for using all necessary skill and care in handling and using the goods.  The Customer expressly acknowledges and agrees that any advice furnished by Industrial Minerals with respect to the use of the goods is given in good faith but on the basis that Industrial Minerals assumes no obligation or liability for advice given or results obtained, all such advice being given by Industrial Minerals and accepted by the Customer at the Customers risk.

14.   COPYRIGHT AND INTELLECTUAL PROPERTY

14.1     Industrial Minerals, owns and has copyright in all designs, products, work, software, systems, solutions, drawings, specifications, electronic data and documents produced by Industrial Minerals in connection with the Products provided pursuant to this contract and the client may use the Products only if paid for in full and for the purpose for which they were intended and supplied by Industrial Minerals.

15.   CONSUMER GUARANTEES ACT

15.1     The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Products from Industrial Minerals for the purposes of a business in terms of section 2 and 43 of that Act.

16.   PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES

16.1     If the Customer is a company or trust, the director(s) or trustee(s) signing this contract, in consideration for Industrial Minerals agreeing to supply Products and grant credit to the Customer at their request, also sign this contract in their personal capacity and jointly and severally personally undertake as principal debtors to Industrial Minerals the payment of any and all monies now or hereafter owed by the Customer to Industrial Minerals and indemnify Industrial Minerals against non-payment by the Customer.  Any personal liability of a signatory hereto shall not exclude the Customer in any way whatsoever from the liabilities and obligations contained in this contract.  The signatories and Customer shall be jointly and severally liable under the terms and conditions of this contract and for payment of all sums due hereunder.

17.   MISCELLANEOUS

17.1     Industrial Minerals shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control. 

17.2     Failure by Industrial Minerals to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations Industrial Minerals has under this contract.

17.3     If any provision of this contract shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

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