HOW TO BUY

Terms and Conditions

1.         Definitions
1.1       “Universal Granite” shall mean Universal Granite Ltd its successors and assigns or any person acting on behalf of and with the authority of Universal Granite Ltd.
1.2       “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by Universal Granite to the Client.
1.3       “Guarantor” shall mean that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4       “Goods” shall mean Goods supplied by Universal Granite to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and includes Goods described on any invoices, quotation, work authorisation or any other forms as provided by Universal Granite to the Client.
1.5       “Services” shall mean all services supplied by Universal Granite to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6       “Price” shall mean the price payable for the Goods as agreed between Universal Granite and the Client in accordance with clause 3 of this contract. 
2.         Acceptance
2.1       Any instructions received by Universal Granite from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by Universal Granite shall constitute acceptance of the terms and conditions contained herein.
2.2       Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
2.3       Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of Universal Granite.
2.4       The Client shall give Universal Granite not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by Universal Granite as a result of the Client’s failure to comply with this clause.
 
3.         Price And Payment
3.1       At Universal Granite’s sole discretion the Price shall be either:(a) as indicated on invoices provided by Universal Granite to the Client in respect of Goods supplied; or
(b) Universal Granite’s quoted Price (subject to clause 3.2) which shall be binding upon Universal Granite provided that the Client shall accept Universal Granite’s quotation in writing within thirty (30) days.
3.2       Universal Granite reserves the right to change the Price in the event of a variation to Universal Granite’s quotation.
3.3       At Universal Granite’s sole discretion a deposit may be required.
3.4       At Universal Granite’s sole discretion:
(a) payment shall be due on delivery of the Goods; or
(b) payment for approved Clients shall be due twenty (20) days following the end of the month in which a statement is posted to the Client’s address or address for notices.
3.5       Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
3.6       Payment will be made by cash, or by cheque, or by bank cheque, or by credit card, or by direct credit, or by any other method as agreed to between the Client and Universal Granite.
3.7       GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
 
4.         Delivery Of Goods
4.1       At Universal Granite’s sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at Universal Granite’s address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by Universal Granite or Universal Granite’s nominated carrier, risk for the Goods shall not pass until the Client takes possession of the Goods at the Client’s nominated address); or
(c) the Client’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Client’s agent and all risk for the Goods shall pass to the Client upon the Goods being loaded onto the Client’s nominated carrier’s transport.
4.2       At Universal Granite’s sole discretion the costs of delivery are:
(a) included in the Price; or
(b) in addition to the Price; or
(c) for the Client’s account.
4.3       The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Universal Granite shall be entitled to charge a reasonable fee for redelivery.
4.4       Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
4.5       Universal Granite may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
4.6       The failure of Universal Granite to deliver shall not entitle either party to treat this contract as repudiated.
4.7       Universal Granite shall not be liable for any loss or damage whatever due to failure by Universal Granite to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Universal Granite.
 
5.         Risk
5.1       If Universal Granite retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
5.2       If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Universal Granite is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Universal Granite is sufficient evidence of Universal Granite’s rights to receive the insurance proceeds without the need for any person dealing with Universal Granite to make further enquiries.
5.3       Stone is a natural product and shade tone, markings, and veining may vary from colour samples provided. Universal Granite will make every effort to match colour samples to the Goods supplied but will not be liable in any way whatsoever for colour samples differing from the Goods supplied.
5.4       The Client acknowledges that Goods supplied may:
(a) exhibit variations in shade, colour, texture, surface, finish, markings and may contain natural fissures, occlusions, lines, indentations and may fade or change colour over time; and
(b) expand, contract or distort as a result of exposure to heat, cold, weather; and
(c) mark or stain if exposed to certain substances; and
(d) be damaged or disfigured by impact or scratching.
 
6.         Title
6.1       Universal Granite and Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Universal Granite all amounts owing for the particular Goods; and
(b) the Client has met all other obligations due by the Client to Universal Granite in respect of all contracts between Universal Granite and the Client.
6.2       Receipt by Universal Granite of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Universal Granite’s ownership or rights in respect of the Goods shall continue.
6.3       It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Universal Granite shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Universal Granite to the Client Universal Granite may give notice in writing to the Client to return the Goods or any of them to Universal Granite.  Upon such notice being given the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) the Client is only a bailee of the Goods and until such time as Universal Granite has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods on trust for Universal Granite; and
(d) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that Universal Granite will be the owner of the end products; and
(e) if the Client fails to return the Goods to Universal Granite then Universal Granite or Universal Granite’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Goods are situated as the invitee of the Client and take possession of the Goods, and Universal Granite will not be liable for any reasonable loss or damage suffered as a result of any action by Universal Granite under this clause.
 
7.         Personal Property Securities Act 1999 (“PPSA”)
7.1       Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Goods previously supplied by Universal Granite to the Client (if any) and all Goods that will be supplied in the future by Universal Granite to the Client.
7.2       The Client undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Universal Granite may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, Universal Granite for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
(c) not register a financing change statement or a change demand without the prior written consent of Universal Granite; and
(d) immediately advise Universal Granite of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
7.3       Universal Granite and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
7.4       The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
7.5       Unless otherwise agreed to in writing by Universal Granite, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
7.6       The Client shall unconditionally ratify any actions taken by Universal Granite under clauses 7.1 to 7.5.
 
8.         Client’s Disclaimer
8.1       The Client hereby disclaims any right to rescind, or cancel any contract with Universal Granite or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by Universal Granite and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgment.
 
9.         Defects
9.1       The Client shall inspect the Goods on delivery and shall immediately (time being of the essence) notify Universal Granite of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote.  The Client shall afford Universal Granite an opportunity to inspect the Goods within a reasonable time if the Client believes the Goods are defective in any way.  If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Universal Granite has agreed in writing that the Client is entitled to reject, Universal Granite’s liability is limited to either (at Universal Granite’s discretion) replacing the Goods or repairing the Goods.
9.2       Goods will not be accepted for return other than in accordance with 9.1 above.
 
10.       Warranty
10.1    Subject to the conditions of warranty set out in Clause 10.2 Universal Granite warrants that if any defect in any workmanship of Universal Granite becomes apparent and is reported to Universal Granite within twelve (12) months of the date of delivery (time being of the essence) then Universal Granite will either (at Universal Granite’s sole discretion) replace or remedy the workmanship.
10.2    The conditions applicable to the warranty given by Clause 10.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i)   failure on the part of the Client to properly maintain any Goods; or
(ii)  failure on the part of the Client to follow any instructions or guidelines provided by Universal Granite; or
(iii) any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv)the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and Universal Granite shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without Universal Granite’s consent.
(c) in respect of all claims Universal Granite shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
10.3    For Goods not manufactured by Universal Granite, the warranty shall be the current warranty provided by the manufacturer of the Goods. Universal Granite shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
10.4    To the extent permitted by statute, no warranty is given by Universal Granite as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. Universal Granite shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
10.5    The conditions applicable to the warranty given on Goods supplied by Universal Granite are contained on the “Warranty Card” that will be supplied with the Goods.
10.6    In the case of second hand Goods, the Client acknowledges that he has had full opportunity to inspect the same and that he accepts the same with all faults and that no warranty is given by Universal Granite as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. Universal Granite shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
 
11.       Consumer Guarantees Act 1993
11.1    If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by Universal Granite to the Client.
 
12.       Intellectual Property
12.1    Where Universal Granite has designed, drawn or written Goods for the Client, then the copyright in those designs and drawings and documents shall remain vested in Universal Granite, and shall only be used by the Client at Universal Granite’s discretion.
12.2    The Client warrants that all designs or instructions to Universal Granite will not cause Universal Granite to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Universal Granite against any action taken by a third party against Universal Granite in respect of any such infringement.
 

13.       Default & Consequences Of Default

13.1    Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.
13.2    In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by Universal Granite.
13.3    If the Client defaults in payment of any invoice when due, the Client shall indemnify Universal Granite from and against all costs and disbursements incurred by Universal Granite in pursuing the debt including legal costs on a solicitor and own client basis and Universal Granite’s collection agency costs.
13.4    Without prejudice to any other remedies Universal Granite may have, if at any time the Client is in breach of any obligation (including those relating to payment), Universal Granite may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions.  Universal Granite will not be liable to the Client for any loss or damage the Client suffers because Universal Granite has exercised its rights under this clause.
13.5    If any account remains overdue after thirty (30) days then an amount of the greater of $20.00 or 10.00% of the amount overdue (up to a maximum of $200) shall be levied for administration fees which sum shall become immediately due and payable.
13.6    Without prejudice to Universal Granite’s other remedies at law Universal Granite shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Universal Granite shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Universal Granite becomes overdue, or in Universal Granite’s opinion the Client will be unable to meet its payments as they fall due; or
(b)  the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
 
14.       Security And Charge
14.1    Despite anything to the contrary contained herein or any other rights which Universal Granite may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to Universal Granite or Universal Granite’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that Universal Granite (or Universal Granite’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should Universal Granite elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify Universal Granite from and against all Universal Granite’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Universal Granite or Universal Granite’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 14.1.
 
15.       Cancellation
15.1    Universal Granite may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Universal Granite shall repay to the Client any sums paid in respect of the Price. Universal Granite shall not be liable for any loss or damage whatever arising from such cancellation.
15.2    In the event that the Client cancels delivery of the Goods the Client shall be liable for any loss incurred by Universal Granite (including, but not limited to, any loss of profits) up to the time of cancellation.
 
16.       Privacy Act 1993
16.1    The Client authorises Universal Granite or Universal Granite’s agent to:
(a) access, collect, retain and use any information about the Client;
(i)   (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
(ii)  for the purpose of marketing products and services to the Client.
(b) disclose information about the Client, whether collected by Universal Granite from the Client directly or obtained by Universal Granite from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.
16.2    Where the Client is an individual the authorities under clause 16.1 are authorities or consents for the purposes of the Privacy Act 1993.
16.3    The Client shall have the right to request Universal Granite for a copy of the information about the Client retained by Universal Granite and the right to request Universal Granite to correct any incorrect information about the Client held by Universal Granite.
 
17.       General
17.1    If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
17.2    These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.
17.3    Universal Granite shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Universal Granite of these terms and conditions.
17.4    In the event of any breach of this contract by Universal Granite the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
17.5    The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by Universal Granite.
17.6    Universal Granite may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.7    Universal Granite reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Universal Granite notifies the Client of such change.
17.8    The provisions of the Contractual Remedies Act 1979 shall apply to this contract as if section 15(d) were omitted from the Contractual Remedies Act 1979.
17.9    Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
17.10  The failure by Universal Granite to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Universal Granite’s right to subsequently enforce that provision.

 
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