~ INFINITE™ CREATIONS LIMITED (“Seller”)
CONDITIONS OF SALE
1.1. These conditions apply to all business customer sales that is Contracts by which any customer (referred to hereinafter as “Buyer”) acquires goods including any related services for the purposes of a business.
1.2. The following terms and conditions shall be (with acceptance) the entire Agreement between the Seller and the Buyer and it is expressly agreed that the Seller shall not be bound by any other prior undertakings, warranties of any kind or representations whether orally or in writing.
1.3. Without limiting the generality of the foregoing any stipulation or condition imposed by the buyer which fails to form part of or conform with these written conditions of sale shall not apply unless made in writing and signed on the seller’s behalf.
2. COLLECTION AND USE OF INFORMATION
2.1. The Buyer authorises the Seller to collect retain and use any information about the Buyer or for the purposes of assessing the Buyer’s creditworthiness, enforcing any rights under this Contract or marketing any goods and services provided by the Seller to any other party.
2.2. The Buyer authorises the Seller to disclose any information obtained to any person for the purposes set out in Clause 2.1 hereof.
2.3. Where the Buyer is a natural person the authorities contained in Clauses 2.1 and 2.2 hereof are authorities or consents for the purposes of the Privacy Act 1993.
3.1. Quoted prices for goods not in stock at the time of quotation are indicative only.
3.2. Quotations may be revised or withdrawn by the seller at any time prior to acceptance in writing by the Buyer of an order based on a quotation.
3.3. Unless stated otherwise in a quotation or unless previously withdrawn by the Seller a quotation is open for acceptance for up to 30 days from the date of quotation and is in any event subject to final confirmation by the Seller of availability of order.
Stated or quoted prices are:
4.1. Exclusive of Goods and Services Tax impost.
4.2. Based on current factory costs, exchange and duty rates. Inf A40 Intellectual Property of Infinisea™ Creations Ltd, 29 Dacre Street, Newton, Auckland 1010, New Zealand 2
4.3. Subject to alteration by the Seller without notice and should be those prices prevalent at the time of dispatch unless the Seller has agreed in writing with Buyer to supply goods at a fixed price.
5.1. Payment in full shall be made to the Seller on or before the 20th day of the month following the date of the invoice with due allowance for Bank clearance of funds.
5.2. Without prejudice to its rights under these conditions or at law or in equity if payment is not made on the due date the Seller may charge interest on the over due amount at the rate of 2.5% per month or part month from the due date for payment until actual payment is received.
5.3. In the event of default the Seller may suspend further supply of goods pending payment without being liable to the Buyer for any losses it may suffer.
5.4. The Buyer agrees that the Seller shall be entitled to recover all or any expenses, disbursements and legal costs incurred by the Seller in enforcement or attempted enforcement of its rights contained in this Agreement including any reasonable Solicitor’s fees or debt collection agency fees.
5.5. Notwithstanding the provisions of Clause 5.1 hereof the Seller may at any time demand payment if it considers the Buyer to be a credit risk.
5.6 No retentions of payment shall be made by the buyer unless specifically arranged and agreed in writing prior to receipt of the buyers orders.
6.1. The Seller reserves the right to dispatch the Buyer’s order in one or more instalments and will exercise it’s best efforts and endeavours to supply goods by the date requested by the Buyer but if for any reason whatsoever goods are not made available or despatched on time the Seller shall not be liable for indirect damages or consequential losses sustained by the Buyer or any other person.
6.2. Failure of the Seller to deliver an instalment on time shall not entitle the Buyer to cancel the Agreement.
6.3. The Seller shall be entitled to supply goods to the Buyer before the time requested by the Buyer.
6.4. Refusal by the Buyer to accept delivery will constitute a breach of these conditions of sale.
7. RETENTION OF TITLE
Notwithstanding any period of credit, ownership of goods remains with the Seller and will not pass to the Buyer until all goods supplied to the Buyer have been paid for in full and until that time the Buyer agrees that:
7.1. The Buyer holds the goods as bailee and is in a fiduciary (Trust) relationship with the Seller. Inf A40 Intellectual Property of Infinisea™ Creations Ltd, 29 Dacre Street, Newton, Auckland 1010, New Zealand 3
7.2. The Buyer must store the goods so that they can be readily identified as belonging to the Seller.
7.3. The Buyer is authorised by the Seller to dispose of the goods in the ordinary course of its business, but only as the Seller’s agent. The Buyer must not however represent to any third party that it is in any way acting for the Seller and the Seller is not bound by nor liable on any Contract between the Buyer and any third party. The authority provided by this Clause to dispose of the goods (as defined in Clause 14.1 hereof) in the ordinary course of the Buyer’s business is revoked immediately if the Seller terminates this Agreement or if the Seller notifies the Buyer in writing that this authority is revoked.
7.4. If the Buyer has not paid in full for the goods by the due payment date the Seller or it’s agents may (in addition to any other rights at law or in equity) enter the Buyer’s premises (or other premises to which the Buyer has access and where any of the goods subject to this Agreement may be stored) during normal business hours (without notice) and search for and recover its goods and may re-sell any of them, without incurring any liability to Buyer or any person claiming through the Buyer. The permission provided by the Buyer pursuant to this sub-clause is irrevocable.
7.5. The Buyer will give the Seller at least seven (7) days notice before applying to a Court of competent jurisdiction for the appointment of a provisional liquidation or receiver and is not entitled to remain in possession of the Seller’s goods from the date of such notice.
7.6. The provisions of this Clause 7 shall be read subject to the termination provisions contained in Clause 13 hereof.
8. RISK / INSURANCE
8.1. Notwithstanding the provisions of Clause 7 hereof the risk in the goods will pass to Buyer on delivery.
8.2. The Buyer shall have the responsibility to insure the goods unless otherwise arranged with the Seller in writing before dispatch of goods.
9. CLAIMS / RETURN OF GOODS
9.1. Subject only to any mandatory liability or guarantee imposed by statute and without prejudice to any rights granted thereby to the Buyer
(a) All warranties, descriptions, representations or conditions, whether implied by law, trade, custom or otherwise and whether relating to fitness, merchantability, suitability for purpose, or otherwise, and all specific conditions, even though such conditions may be known to the Seller are expressly excluded ;
(b) The Seller shall not be liable in any way whatsoever to the Buyer or any third party whether in tort (including negligence) contract or otherwise for any loss or damage whatsoever whether direct or indirect special or consequential and all such liabilities are expressly excluded;
(c) The liability of the Seller in respect of any order of goods or services shall in any event be limited to the lesser of the purchase price of the goods or services Inf A40 Intellectual Property of Infinisea™ Creations Ltd, 29 Dacre Street, Newton, Auckland 1010, New Zealand 4 complained of, the costs of replacing the defective goods or re-supplying the defective services and the actual loss or damaged suffered by Buyer.
9.2. Subject to any statutory rights or remedies that the Buyer may have in respect of any claim by the Buyer which established that the goods or services supplied were defective the Buyer’s rights and remedies shall be limited in accordance with Clause
9.1 (c) hereof and shall be subject to the following conditions:
(a) All claims must be received by the Seller within seven days of delivery of the goods or provision for services (as appropriate) and where applicable the dispatch number and/or invoice number must be quoted by Buyer;
(b) All claimants must specifically identify the defect and, where possible in relation to goods, be accompanied by the defective goods or a sample thereof;
(c) Seller shall have a reasonable opportunity to investigate the claim; and
(d) Seller may at its complete discretion replace it with a credit for the goods and services supplied and established to be defective and this replacement or credit shall be deemed to fully satisfy any claim by Buyer in respect of any such goods or services
(e) Goods purchased by the Buyer are non-returnable, both imported or local goods unless it is agreed in writing within seven (7) days following receipt of goods by the Buyer in which case a re-stocking fee of up to 35% of the value of the goods supplied may apply.
9.3. If Seller replaces defective goods it shall deliver such goods to the Buyer at the Buyer’s premises at Seller’s risk and expense.
9.4. If at any time the Buyer expressly or by implication holds itself out as acquiring from the Seller goods for re-sale or goods and/or services for the purposes of the business, all supplies of goods and services to the Buyer by the Seller shall be deemed to be for the purposes of Buyer’s business (as that latter term is defined in the Consumer Guarantees Act l993). In such event as between the Seller and the Buyer the Guarantee provisions of the Consumer Guarantees Act 1993 are hereby expressly excluded and shall not apply to any supplies of goods and services by the Seller to the Buyer.
10. CONSUMER GUARANTEES ACT 1993
The Buyer undertakes in relation to goods that it acquired from Seller –
10.1. Not to give any express written guarantees on behalf of the manufacturer, or New Zealand importer or distributor of the goods on behalf of the Seller except with the Seller’s express written approval.
10.2. That it will not use the Seller’s goods for any purpose for which they are not suitable and it will (wherever appropriate) correctly advise it’s customers as to the purposes to which Seller’s goods should or should not be put.
10.3. That any literature that it may supply and which relates to Seller’s goods will comply with the Consumers Guarantees Act l993 and its amendments… Inf A40 Intellectual Property of Infinisea™ Creations Ltd, 29 Dacre Street, Newton, Auckland 1010, New Zealand 5
10.4. To immediately notify Seller in writing of any claim the Buyer may receive pursuant to the Consumer Guarantees Act 1993 and its amendments giving details of the Seller’s goods concerned and claimant’s contact information.
10.5. To effectively and in writing contract out of the Consumer Guarantees Act 1993 and its amendments whenever it agrees to supply Seller’s goods to Buyers own customer for the purposes of that customer’s business.
11. PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES
11.1 If the Buyer is a Company or Trust the Director(s) or Trustee(s) signing this Agreement in consideration for the Seller agreeing to supply goods and/or credit to the Buyer at its request shall also sign this Agreement in their personal capacity and jointly and severally personally undertake as principal debtors to the Seller the payment of any and all moneys now or hereafter owed by the Buyer to the Seller and indemnify the Seller against non-payment by a Buyer. Any personal liability of a signatory hereto shall not exclude the Buyer in any way whatsoever from the liabilities and obligations contained in this contract. The signatories and Buyer shall be jointly and severally liable under the terms and conditions of this contract and for payment of all sums due hereunder.
12. BUYER’S INDEMNITY TO SELLER
12.1. Buyer agrees immediately on demand to indemnify the Seller against liability (including liability to claims, costs and expenses defending claims) which would have not arisen had Buyer complied with the undertakings set out in Clause 10 hereof.
13.1. Seller may (“in addition to it’s other rights) terminate this Agreement if the Buyer fails to comply with any of these conditions or other terms of Agreement with Seller or commits an act of bankruptcy (or being a company) has a receiver appointed or goes into liquidation, or compounds or arranges with it’s creditors, or if the Seller has reasonable grounds to believe that it goods have been or will be destroyed, damaged, endangered or removed by Buyer’s normal place of business (except in the ordinary course of trade).
13.2. Upon termination Buyer agrees that Seller or it’s agents may enter Buyer’s premises (or other premises to which the Buyer has access and where any of the goods subject of this Agreement are stored) during normal business hours (without notice) and search for and recover it’s goods, and may re-sell any of them without incurring any liability to Buyer or any person claiming through Buyer. The permission granted in this sub -clause by the Buyer is irrevocable.
13.3. Upon the Seller being entitled to terminate an Agreement with the Buyer the Seller shall also be entitled to terminate all other Agreements with the Buyer insofar as they are unfulfilled (without prejudice to the Seller’s rights to recover all moneys owing to it in respect of deliveries already made and services already provided). The Seller shall be entitled to dispose of the balance of the goods contracted for and the Buyer shall indemnity the Seller for any loss in price incurred by it on realisation against that price at which such goods were contracted to be bought by Buyer. Inf A40 Intellectual Property of Infinisea™ Creations Ltd, 29 Dacre Street, Newton, Auckland 1010, New Zealand 6
14. PERSONAL PROPERTY SECURITIES ACT 1999
14.1. For the purposes of the Personal Property & Securities Act 1999 (“PPSA”) the Buyer agrees these conditions constitute and create a Security Agreement. Buyer grants a security interest in favour of Seller in all Buyers present and after acquired inventory of stock and other goods supplied to Buyer by Seller and all proceeds and accounts receivable in relation to that inventory (which present and after acquired inventory is hereinbefore and hereinafter referred to as “Goods”) to secure the payment by Buyer to Seller of all amounts the Buyer may owe Seller from time to time and at any time in respect of such Goods.
14.2 The Seller may at its discretion and in such manner as the Seller determines allocate payments made by Buyer for all and any Goods.
14.3. Until payment is made to Seller the Buyer agrees to store the Goods in a manner which permits them to be identified and cross -referenced to particular invoices for the Goods.
14.4. To the extent permitted by Law if Buyer defaults under these conditions or under any other payment obligation to Seller then: (a) Each security interest created in favour of Seller will become immediately enforceable; and (b) The Seller may, at any time, by notice to Buyer declare all or any part of the monies owing to Seller to be due and payable immediately upon demand or at such later date as Seller may specify in writing; and (c) Seller may: (i) Take possession of and either sell or retain the Goods; and (ii) Obtain expenses incurred in the exercise of any such powers until the revenue from or proceeds of realisation of the Goods; and (iii) Under Sections 133 and 134 of the PPSA to reinstate the Security Agreement; and (iv) To receive a copy of the verification statement or financing change statement relating to the Seller’s security interest.
14.5. The Buyer shall give written notice to the Seller immediately upon any change of name of Buyer.
14.6. On being requested by Seller the Buyer shall promptly do all things including signing any documents (and providing all information necessary to enable the Seller to perfect and maintain the perfection of any and each security interest granted to the Seller by the Buyer (including by registration of the financing statement). Inf A40 Intellectual Property of Infinisea™ Creations Ltd, 29 Dacre Street, Newton, Auckland 1010, New Zealand 7
15. INTELLECTUAL PROPERTY RIGHTS
15.1. All rights pertaining to industrial or intellectual property including but not limited to copyright, patents and trademarks (“the intellectual property rights”) are hereby expressly reserved
15.2 The Buyer shall not authorise any copying or breach of the intellectual property rights. All copies of Goods made by the Buyer or the agent of the Buyer in breach of the said intellectual property rights shall be immediately destroyed or surrendered to Seller/Owner of the intellectual property rights. All graphics including pictures, logos, devices and brand marks are subject to copyright. The buyer shall not copy or reproduce graphics on to a website or any advertising material without written permission from the owners of the copyright.
15.3. Seller has taken all reasonable precautions to ensure that descriptions and illustrations contained in the catalogue are correct at the time of publication but the Seller reserves the right to modify and improve any goods shown in any such catalogue. Goods displayed in the catalogue are therefore indicative only of the actual product or Goods that are intended for guidance only.
16. FAIR TRADING ACT
16.1. Nothing contained in these conditions shall be deemed to exclude or restrict any rights or remedies the Buyer may have under the Fair Trading Act 1986 if the provision in these conditions is illegal, invalid or unenforceable. The validity or enforceability of the remaining provisions of this Agreement will not be affected and may be severed accordingly
17.1 Any notice, document, request, demand or other communication (“notices”) to be given for the purposes of this agreement must be in writing and may be served personally or sent by registered mail or document exchange to the address of the other party as specified in the credit application form or such other address as the parties may notify each other in writing from time to time or by facsimile or electronic mail.
17.2 Notice is given: (a) Personally or deemed served upon delivery; (b) By post or document exchange deemed served two business days after posting; (c) By email to an address outside New Zealand deemed served five business days after posting; (d) By facsimile or electronic mail are deemed served upon receipt of the correct answer back or receipt code in the case of facsimile and transmission in the case of electronic mail.
17.3 Any such notice which has been served on non business days deemed served on the first business day after such day.
17.4 Notice may be given by an authorised officer, employee or agent of the party giving them notice.
17.5 Time is of the essence to service of any such notices. Inf A40 Intellectual Property of Infinisea™ Creations Ltd, 29 Dacre Street, Newton, Auckland 1010, New Zealand 8
18.1 Failure by the Seller to enforce any of the terms and conditions contained in this Agreement shall not be deemed to be a waiver of any of the rights or obligations either the Seller or Buyer has under this Agreement.
18.2 If any provision of this Agreement shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be prejudiced or impaired.
18.3 The Buyer shall not assign all or any of its rights or obligations under this Agreement without the written consent of the Seller.
18.4 Errors and omissions of a clerical type and quotations, invoices or statements shall be excepted by the Buyer and subject to correction by the Seller.
18.5 This order is an Agreement and shall in all respects be construed in accordance with and governed by the Laws of New Zealand for the time being in force and the parties agree to accept to the exclusive jurisdiction of the Courts of New Zealand.
18.6 The Buyer shall agree that subject to the requirements of privacy law none of them will disclose any of the terms of this agreement to any third parties other than their professional.