CONDITIONS OF TRADE

1. TERMS

1. ENCO Industrial Supplies Ltd (“ENCO”) and the customer accept that placement by the customer of any order with ENCO is an acknowledgment and acceptance by the customer that the contract between the customer and ENCO is to the extent permitted by law on the terms and conditions contained in these Conditions of Trade and the customer will be bound by these;
2. These terms and conditions shall constitute the entire terms and conditions of a contract with ENCO. All other conditions, terms, and any warranties, descriptions, representations, conditions as to fitness or suitability for any purpose, tolerance to any conditions, merchantability or otherwise and whether express or implied by law, trade, custom or otherwise and any customer’s own terms and conditions (not agreed to in writing by ENCO) are expressly excluded.
3. The customer includes all the customer’s employees, contractors, sub-contractors, agents, and any authorised by the customer to use the account.

2. PAYMENT

1. Unless otherwise agreed payment is due on the 20th of the month following receipt of goods.
2. Without prejudice to its rights to sue for payment or exercise any other remedy where any payment is not made on the due date ENCO may:

1. Re-invoice the goods at the then current full retail price; and
2. Charge the customer interest on the amount outstanding at the rate of 1.5% per month calculated daily from the due date of payment until payment is received by the company. The charging of interest does not extend the time for payment or imply any forbearance to sue or otherwise prevent recovery of overdue monies; and
3. Demand payment of the arrears as well as payment in advance for any undelivered goods before proceeding or making any further delivery of goods.

3. The customer agrees that if the customer defaults in paying any account the customer shall pay on demand all costs, charges and legal expenses (including costs between solicitor and own client) and including any collection costs incurred by ENCO in recovering payment from the customer.

3. PRICES

1. Prices shown are exclusive of GST.
2. Unless otherwise advised prices quoted are on an “ex warehouse” basis and freight charges are in addition to any price for goods.
3. Prices shown in the standard catalogue are the retail prices and a trade discount is available. The trade discount may however be rescinded at the suppliers option for late payment. POA – Price on Application.
4. ENCO’s prices are subject to alteration without notice and the price payable by the customer for the goods ordered shall be the price agreed to between ENCO and the customer or in the absence of such agreement the price prevailing at the date the goods are despatched. The customer should confirm prices before ordering.

4. DELIVERIES

1. The customer must notify ENCO if the customer does not receive any order within 7 working days of the order being given by the customer to ENCO. This is to enable ENCO to re-supply the order and contact the freight company concerned in order to process a claim within the courier’s claim period. If the customer fails to give notice within such period then ENCO may require the customer to pay for the goods even if the goods have not been received by the customer;
2. Where ENCO acknowledges an order which provides for delivery by installments ENCO shall be entitled to payment for each installment delivered (as if it were a separate contract) and failure to deliver any installment shall not entitle the customer to repudiate the contract as to any installments already delivered or any remaining installments;
3. Any delivery times provided by ENCO are estimates made in good faith and are not a commitment or a binding contract to deliver by a specified time and ENCO is not bound by such estimates;
4. If ENCO requests information and the customer does not provide or delays that information or that information is incomplete and/or inaccurate then the customer accepts that the delivery of goods may be delayed and/or not completed or not achieved.
5. If the customer fails or refuses or indicates to ENCO that the customer will fail or refuse to take or accept delivery, the goods shall be deemed delivered when ENCO was willing to deliver them;
6. ENCO may withhold delivery at any time for any reason;
7. Proof of delivery will not be required from ENCO more than 60 days after the date of invoicing.
8. ENCO shall not be liable to the customer for any loss or damage directly or indirectly arising out of or in connection with any delay in delivery of the goods or failure to deliver goods whether such delay or failure is caused directly or indirectly by ENCO for any reason beyond its control, or by an act of god, fire, armed conflict, labour dispute, civil commotion or intervention of government or otherwise.

5. RETURNS

1. Goods will only be accepted for credit if returned in accordance with these conditions and are returned within 14 days of date of delivery accompanied by a request for credit quoting the original invoice/packing slip number, the purchase order number, date and reason for return.

1. Prior notification of the return of goods is required and the acceptance of such goods does not imply an agreement to issue a credit note.

2. Returns are subject to inspection and approval and will attract a handling and restocking charge. Freight will be at the expense of the customer unless the goods were supplied incorrectly.
3. No credit will be allowed for:

1. Goods which have been specially procured.
2. Goods which are specially manufactured or cut to the specifications of the customer.
3. Goods which have been used, modified or damaged.

6. WARRANTIES AND LIMITATION OF LIABILITY

1. ENCO does not warrant that any goods are fit for a particular purpose;
2. Unless specifically agreed in writing by ENCO, to the extent permitted by law, for all goods supplied by ENCO:

1. ENCO does not warrant any goods that have been altered, repaired, installed, misused or modified in any way not previously approved in writing by ENCO;
2. Where goods or services are provided for a business all warranties, descriptions, representations or conditions whether implied by law, trade, custom or the Consumer Guarantees Act 1993 or otherwise are expressly excluded;
3. ENCO’s liability is limited to the cost of replacement or repair of any item of goods which ENCO has supplied or agreed to supply, so that ENCO’s total liability for any loss or damage suffered by the customer will not exceed the price of that item of goods.

7. INSPECTION BY CUSTOMER

The customer will open and check all goods supplied and report any alleged discrepancy with details of the invoice number and specifics of the claim, in writing within 7 days of the date of delivery. Any claims made outside this time will not be accepted for credit.

8. RETENTION OF TITLE

1. Ownership and title to the goods shall not pass to the customer until ENCO has received payment in full of all monies owing by the customer to ENCO;
2. Risk of any loss, damage or deterioration of the goods shall pass to the customer on delivery of the goods to the customer’s premises.
3. The customer acknowledges that until title to the goods passes to the customer in accordance with this clause:

1. The customer holds the goods as bailee of ENCO and that a fiduciary relationship exists between the customer and ENCO;
2. The customer shall store the goods separately and in a manner so that they are clearly identified as the property of ENCO.
3. ENCO shall be entitled at any time to demand the return of the goods and shall be entitled without notice to the customer and without liability to the customer to enter any premises occupied by the customer to search for and remove the goods.

9. REPRESENTATION OF PRODUCT IN CATALOGUE AND OTHER INFORMATION

While the information (including product pictures) in the ENCO catalogue endeavors to be accurate, specific details/features may vary from that which is represented. If your specifications are critical, please ask for clarification. ENCO will not be liable in the case where loss arises as a result of goods being different from that which is represented in the ENCO catalogue and other information.

10. SUITABILITY FOR USE IS CUSTOMER’S RESPONSIBILITY

Any advice provided by ENCO and/or its staff including recommendations and/or suggested alternatives does not imply or constitute or warrant the suitability of an item of goods for a particular application or purpose or a guarantee of performance or legal compliance, and to the extent permitted by law, ENCO will not be liable for any loss or damage suffered by the customer which arises as a result of any advice from ENCO to the customer. The customer is solely responsible for the selection of an item of goods and by purchasing the customer agrees it is satisfied as to the suitability of an item of goods and its use.

11. NO WARRANTY AGAINST CORROSION

While ENCO’s goods are made from high quality materials designed to be resistant to corrosive environments, unless expressly stated, ENCO does not offer any warranties regarding its good’s resistance to corrosion.

12. PRIVACY

By accepting these conditions and any guarantee the customer and any guarantor agree and authorise ENCO to:

1. Obtain from any person or company any information (including credit information) that ENCO may require for the purpose of, or as the result of any sales by ENCO; and
2. Disclose to any third party details of these conditions (including any credit application) and any subsequent dealings including any defaults and payments which are more than 30 days overdue.

13. GUARANTEE AND INDEMNITY

Any guarantors agree that:

1. Each guarantor personally jointly and severally guarantees payment to ENCO of all and any sums owed by the customer to ENCO pursuant to these conditions including all payments due pursuant to the above condition 1; and
2. These conditions bind any guarantor;
3. No granting of time waiver or indulgence to the customer or failure to recover from the customer shall release any guarantor; and
4. As between any guarantor and ENCO each and every guarantor shall be deemed to be a principal debtor and indemnifies ENCO for any loss suffered and all sums payable to ENCO.
5. The person signing this application on behalf of the customer accepts full personal liability and guarantees payment by the customer. If the customer fails to make any payment or do any other thing that results in the vendor suffering loss the person signing on behalf of the customer agrees to pay all sums due and owing to ENCO.

14. SECURITY AND THE PERSONAL PROPERTY SECURITIES ACT 1999

1. Immediately upon signing any application for credit, the customer grants and creates in favour of ENCO:

1. A purchase money security interest (“PMSI”) in ENCO’s goods with the meaning of the Personal Properties Securities Act 1999 (“PPSA”) and;
2. The right to register a financing statement under the PPSA for all ENCO’s goods (and for which express purpose credit has been extended) to create a purchase money security interest (“security interest”) as that term is defined in the PPSA on the terms contained in these conditions.

2. The customer agrees:

1. To pay ENCO’s costs of registration of a PMSI and that its accounts with ENCO may be charged with the cost of registration of the PMSI and all other costs associated with perfection and enforcement of the PMSI (including ENCO’s full solicitor/own client costs).
2. That the PMSI is to extend to the proceeds of any sale of ENCO’s goods, any book debts arising where the customer has sold but not paid for ENCO’s goods and where ENCO’s goods have been mixed with any other goods a proportionate share of the mixed goods.

3. To the extent permitted by law and so far as permitted by s107 of the PPS Act by these conditions:

1. The customer contracts out of and waives the customer’s rights under s114, s120 and s133 of the PPSA including the right to receive any notices.
2. The customer waives its rights to receive a verification statement in respect of any financing statement or financing change statement registered by ENCO.
3. The customer agrees to ENCO exercising its rights under s109 and s120 concurrently and to ENCO retaining any repossessed goods immediately so that ENCO’s rights under s123 of the PPSA shall become effective immediately upon repossession.
4. The customer agrees that repossession and retention of ENCO’s goods under s120 -123 of the PPSA will only satisfy so much the customer’s debt to ENCO as is equivalent to ENCO’s estimation of the market value of ENCO’s goods in the condition ENCO’s goods are in at the date of repossession (after deducting ENCO’s costs in repossessing) and the repossession and retention will immediately extinguish any rights and/or interest the customer has in ENCO’s goods.

4. The customer indemnifies ENCO for any claims (including legal costs) against ENCO including any claims as a result of any default by the customer, for ENCO’s repossession and retention and any attempts to repossess retain or enforce ENCO’s rights in relation to goods supplied by ENCO and for any claims brought by any third party.

5. The customer acknowledges that ENCO may allocate any monies it receives from the customer towards debts, charges and expenses (including legal costs incurred by ENCO) in any priority ENCO determines to maintain the PMSI in goods supplied by ENCO.

15. SERVICE

Service may be affected by either party, by leaving documents at the registered office or the other party’s last known address or last known delivery address or by post by registered letter addressed to that party at any such address or by delivering any document to any person who is named on any public register or as a director. If a party changes its address it shall notify the other party of the change of address and until it does so service may be validly affected at the last address as known in accordance with this clause.

16. GENERAL MATTERS

The customer shall do all things necessary including sign all documents and provide all information necessary to provide ENCO with any rights and security referred to in these conditions and to give effect to and protect ENCO’s rights under these conditions.