Terms of Trade
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TERMS OF TRADE
34196 / 00014
1.
Definitions
In these conditions unless the context otherwise requires:
•
Company
means Kaze Limited.
•
Buyer or customer
means the person, or company buying the
goods
and/or
services from the Company.
•
Goods
and/or services
mean the
goods
and/or services being purchased by
the Buyer from the Company.
•
Contract
means the contract between the Company and the Buyer for the
purchase of the
goods
and/or services.
•
Date of the contract
means where the contract arises from a quotation given
by
the Company, i) the date of acceptance of the order by the Company; or ii)
Where the contract arises from a quotation given by the Company, the date
upon written notification of acceptance of the quotation is received by the
Company.
•
Contract price
means
the price of
goods
and/or services as agreed between
the Buyer and the Company.
•
Manager
is the company
’
s appointed decision maker.
•
Person
includes a corporation, association, firm, company, partnership or
individual.
•
PPSA
means the Personal Property Secur
ities Act 1999.
•
Quotation
shall mean price on offer for a fixed term.
2.
Quotation
The Buyer may request a Quotation from the Company setting out the price and quantity
of the
goods
and/or services
to be supplied. If the Quotation is acceptable to the
Buyer,
the Buyer may place an order within an acceptable timeframe.
3.
Acceptance
If any instruction is received by the Company from the Buyer for the supply of
goods
and/or services, it shall constitute acceptance of the terms and conditions contained
herei
n. Upon acceptance of these terms and conditions by the Buyer, the terms and
conditions are definitive and binding.
4.
Delivery & Risk
4.1
Delivery of goods shall be deemed completed when the Company gives
possession of the goods directly to the Customer or his agent or to a carrier,
courier or other bailee for delivery to the Customer.
4.2
The Company will make every effort to ensure delive
ry of goods is on time
but will not be liable for any loss or damage including (without limitation)
consequential loss arising in any way from any delay in delivery, nor may
the Customer cancel any order for late delivery.
4.3
Should the Company deliver g
oods by instalments, each instalment is
deemed to be a separate contract on the same terms as the Contract. If the
Company fails to deliver, or makes defective delivery of one or more
instalments, the Customer is not entitled to cancel the Contract.
4.4
The Customer must make any claims for short deliveries or damaged goods
within 7 days of delivery.
4.5
All risk in and for the goods shall pass to the Customer on delivery of the
goods.
4.6
The time agreed for delivery shall not be an essential term of t
he Contract
unless the Customer gives written notice to the Company making time of the
essence.
5.
Terms and Conditions
These terms and conditions and any subsequent terms and conditions issued by the
Company shall apply to all orders for the
goods
and/or services
made by the Buyer after
the date and time at which these conditions are first delivered or sent by email or
facsimile to, or otherwise brought to the notice of, any employee, staff member or
representative of the Buyer. It shall be the Buy
er
’
s responsibility to ensure that these
conditions are promptly brought to the attention of the appropriate staff of the Buyer, and
accordingly any order made by the Buyer after the date and time described above in this
clause shall be deemed to be an acc
eptance of these conditions.
6.
Price
6.1.
The Price shall be as indicated on invoices provided by the Company to the
Buyer in respect of
goods
and/ or services supplied; or
6.2.
The Price shall be the Price of the Company
’
s current Price at the date of
delivery of an
y goods.
6.3.
Time for payment for the
goods
and/or services shall be of the essence and
will be stated on the invoice, quotation, tender documents, work
authorisation form or any other work commencement forms. If no time is
stated then payment shall be due on
delivery of any goods.
7.
Liability
7.1
The Customer shall ensure that goods ordered are fit and suitable for the
purpose for which they are required. The Company is under no liability if
they are not.
7.2
The Company is not liable for:
a.
Failure to deliver
by a specified date;
b.
An event beyond the Company
’
s control;
c.
Testing the goods;
d.
Any negligence, misrepresentation or other act or omission by the
Company or its agents; or
e.
Any loss or loss of profit or damage resulting directly, or indirectly
fr
om any of the above.
7.3
The Company shall not be liable for consequential or special damages under
any circumstances.
7.4
Despite anything else, any liability of the Company arising under the
Contract will not exceed the value of the replaced goods in rel
ation to which
the liability has arisen.
7.5
Failure to deliver/install on a specified date shall not entitle the Customer to
repudiate the agreement and the Company shall not be liable for failure to
deliver or for delay in delivery arising from any cause
whatsoever beyond
the Company
’
s control. The Customer shall not be relieved of any
obligations to accept or pay for goods by reason of any delay in deliver
y
.
8.
Warranties
8.1
The Company will use all reasonable care in providing goods and services
and
will endeavour to provide goods and services in accordance with
industry standards. All warranties, conditions, guarantee
s
, descriptions,
representations, conditions as to fitness or suitability for any purpose,
tolerance to any conditions, merchantabilit
y, appearance, safety, durability
or otherwise and whether express or implied by customary practice, at law
or under statute are excluded to the extent legally permitted. If the Customer
on
-
sells the goods in respect of which goods and services have been
provided, the Customer will not make any warranty inconsistent with the
terms contained herein.
8.2
The
C
ustomer must give the Company notice of any defect in the goods, or
any goods that do not meet industry specifications for which they were
supplied, wi
thin 7 days of delivery.
8.3
The Company
’
s liability under this clause will be limited in the Company
’
s
sole and absolute discretion to replacing the goods.
8.4
The Company will not be liable for goods which have been tampered with
which have not been stor
ed or used in a proper fashion.
8.5
The Company will not be liable to pay the Customer any amount more than
the amount (if any) the Company actually receives from the supplier for the
defective goods.
9.
Payment, Late Payment, Default of Payment and Consequen
ces of Default
of Payment
9.1.
The method of payment will be made by cash, or by cheque, or by bank
cheque, or by direct credit, or by any other method as agreed to between
the Buyer and the Company.
9.2.
Subject to any provision to the contrary in the Contract, pa
yment shall be
received on or before the 20
th
of the month following the date of the
Company
’
s invoice to the Buyer, which shall be issued promptly on or after
delivery of the goods.
9.3.
Late payment shall incur interest at the rate of 2% per month calculated on
a daily basis. This shall be payable on any monies outstanding under the
Contract from the date payment was due until the date payment is received
by the Company, but without prej
udice to the Company
’
s other rights or
remedies in respect of the Buyer
’
s default in failing to make payment on the
due date.
9.4.
The Company is entitled to pass the collection of any overdue amounts on
to a Debt Collection Agency or the like and is also entit
led to provide details
of the Buyer and the outstanding debt to any credit reporting service.
34196 / 00014
9.5.
The Buyer shall pay the Company
’
s legal costs as between solicitor and
client (and collection costs) of and incidental to the enforcement or
attempted enforceme
nt of the Company
’
s rights, remedies and powers
under these terms including (without limitation) there obtaining of an order
under Section 167 of the PPSA and any costs incurred by the Company to
comply with a demand by the Buyer to register a Financing Ch
ange
Statement pursuant to Section 162 of the PPSA.
9.6.
Without prejudice to any other remedies the Company may have, if at any
time the Buyer is in breach of any obligation (including those relating to
payment), the Company may suspend or terminate the supply
of goods
and/or services to the Buyer and any of its other obligations under the terms
and conditions. The Company will not be liable to the Buyer for any loss or
damage the Buyer suffers because the Company exercised its rights under
this clause.
9.7.
In the
event that:
b.
any money payable to the Company becomes overdue, or in the
Company
’
s opinion the Buyer will be unable to meet its payments as
they fall due; or
b.
the Buyer 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 Buyer or any asset of the Buyer;
then without prejudice
to the Company
’
s other remedies at law
d.
the Company shall be entitled to cancel all or any part of any order
of the Buyer that remains unperformed in addition to, and without
prejudice to any other remedies; and all amounts owing to the
Company shall, wh
ether or not due for payment, immediately
become payable.
10.
PPSA
10.1.
The Contract constitutes a security interest in the goods
together with the
proceeds of sale of such goods
supplied by the Company to the Buyer for
the purposes of the PPSA as security for pay
ment by the Buyer of all
amounts due under the Contract, including any future amounts.
10.2.
The Buyer agrees to promptly execute and deliver to the Company all
assignments, transfers and other agreements and documents and do
anything else which the Company may deem appropriate to perfect the
Company
’
s security interest over the Buyer, or obtain t
he priority required
by the Company or register (and renew registration) a financing statement
for a security interest in favour of the Company.
10.3.
To the extent that Part 9 of the PPSA applies, the Buyer agrees that the
provisions of sections 114(1)(a), 120,
122, 133 and 134 of the PPSA which
are for the Buyer
’
s benefit, or place any obligations on the Company in the
Buyer
’
s favour, will not apply; and where the Company has rights in addition
to those in Part 9 of the PPSA, those rights will continue to apply
.
10.4.
To the extent that Part 9 of the PPSA applies, without limiting anything in
the previous paragraph, the Buyer hereby waives its rights under sections
116, 120(2), 121, 125, 126, 127, 129
,
131
and 132
of the PPSA, and its
rights to receive a copy of a ver
ification statement under section 148 of the
PPSA in respect of any financing statement or financing change statement
registered by the Company.
10.5.
The Buyer agrees to treat the security interest in the goods as a continuing
and subsisting security with prior
ity over a registered general security
interest and any unsecured creditors, regardless of whether the goods have
become fixtures at any time before payment has been made for them.
11.
Consumer Guarantees Act 1993
The Buyer agrees and acknowledges that all su
pplies of goods and services from the
Seller to the Buyer are/will be acquired for the Buyer
’
s business purposes and
accordingly the provisions of the Consumer guarantees Act 1993 will not apply as
between the Buyer and the Seller.
12.
Construction Contracts
Act 2002
12.1
The parties acknowledge that all provisions of the Construction Contracts
Act 2002 shall apply to this contract except where inconsistent with this
contract.
12.2
The parties further acknowledge that all provisions of the said Act, including
those sections listed in section 10 of the said Act, shall apply to this contract
even if it is a residential construction contract as that term is defined by the
said Act.
13.
N
o Waiver
No delay or failure by the Company to act or insist on any right shall
be regarded as a
waiver and every right remains enforceable and may be exercised at any time.
14.
Privacy Act 1993
The Customer authorises the Company to collect, retain, and use personal information
(including disclosure to a third party) about the Customer for the purposes of assessing
the Customer
’
s
creditworthiness, debt collection and searching the Personal
Property
Securities Register for the purposes of the security.
15.
Dispute resolution
The Company will endeavour to resolve any dispute between the Buyer and itself without
the need for Court proceedings. Any such attempt is without legal prejudice.
16.
Reservati
on of title
1
6
.1
Prior to receiving payment in full for all goods and services, title in any goods
supplied by the Company will remain with the Company, even if the goods
have been built in or permanently attached.
1
6
.2
Un
til
full payment, the Customer sh
all store goods in a way that clearly
identifies them as property of the Company and it shall be the Customer
’
s
obligation to maintain insurance in respect of the goods.
1
6
.3
If the Customer fails to pay on the due date, or is in breach of these terms,
the
Customer authorises the Company to enter any premises to recover
goods supplied, or to which the Company holds title, and to hold those good
s
pursuant to this clause 1
6
.
1
6
.4
The Customer indemni
f
ies the Company for any losses or costs incurred in
recover
ing such goods. In particular (but without limitation) the Customer is
responsible for any damage caused in recovering goods (including any
damage caused in recovering goods that have been built in or permanently
attached). If the premises of a third par
ty, the Company will enter and
receive the goods as the Customer
’
s agent,. The Company will be entitled
to sell any goods
held by the Company and apply the proceeds towards
amounts owed by the Customer if the Cus tomer has failed to pay any
amount due with
in 14 days of a written demand and within 60 days of an
amount becoming due (whether demanded or not).
1
6
.5
This clause 1
6
is intended to protect the Company in the event of default,
insolvency, liquidation, or receivership of the Customer.
17.
Miscellaneous
1
7
.1
The Company may change these terms by notice in writing to the Customer
at any time.
1
7
.2
These terms prevail over the terms of any purchase order or any terms or
contract submitted by the Customer.
1
7
.3
Where any provision of these terms is rendered
void,
unenforceable or
otherwise ineffective by operation of
law that
shall not affect the
enforceability or effectiveness of any other provision of these terms.
1
7
.4
Headings do not affect the interpretation of these term