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These Terms, together with any credit limits set by Company, are effective from the date of acceptance by Customer and may be amended or superseded from time to time by notice given by Company by any means. “ Goods ” and/or “ Collateral ” means all goods and/or services supplied by Company to Customer, or ordered by Customer but not yet supplied, and includes goods described on any quotation, invoice, purchase order or any other document including any recommendations and advice and over which Company may intend to register a security interest.
Price” means the cost of the Goods as referred to in Company’s price lists, prepared quotes and/or specific arrangements with Customer and are subject to change from time to time without notice.
“ Consumer” has the meaning given to that term in the Australian Consumer Law, Schedule 2 to the Competition and Consumer Act 2010 (Cth).
These Terms shall be construed in accordance with laws of the State of and, where applicable the Commonwealth of and Customer submits to the non-exclusive jurisdiction of the courts of . Company has
exclusive right to nominate the Court in which any legal action is to be commenced and conducted.
2. Personal Property Securities Act (2009)
(a) Customer consents to Company affecting a registration on the register (in any manner Company deems appropriate) in relation to any security interest arising under or in connection with or contemplated by these Terms.
(b) Customer waives its right to receive notice of a verification statement in relation to any registration byCompany on the register.
(c) Customer agrees to promptly execute any documents, provide all relevant information, fully cooperate with Company and do anything Company requires to ensure that Company has a perfected
security interest in, and priority over any other security interests in, the Goods or otherwise.
(d) Customer agrees that, until all monies owing to Company are paid in full in respect of any Goods, it may not sell or grant any other security interest in those Goods.
(e) Customer will not register a financing change statement in respect of the security interest without Company’s prior written consent.
(f) Customer agrees that Company may, at its absolute discretion, apply any amounts received from Customer toward amounts owing to Company in such order as Company may determine.
(g) If Chapter 4 of the PPSA would otherwise apply to the enforcement of a security interest arising in connection with these terms, Customer agrees that the following sections of the PPSA will not apply to the enforcement of these terms: s 95, to the extent that it requires Company to give a notice to Customer; s 96; s 121(4); s 125; s 130, to the extent that it requires Company to give a notice to Customer; s 132(3)(d); s 132(4); s 134(1); s 135; s 142; and s 143.
(h) Notices/documents given to Company under thePPSA must be given in accordance with the PPSA.
(i) Company agrees with Customer not to disclose information of the kind mentioned in subsection 275(1) of the PPSA except in circumstances required by sections 275(7)(b)-(e).
(j) Customer agrees to reimburse, upon demand, Company for all costs and/or expenses incurred or payable by Company in relation to registering or maintaining any financing statement, releasing in whole
or in part Company’s security interest or preparing any other document in respect of any security interest;
(k) In these terms the following words have the meanings given to them in the PPSA: commingled, financing statement, financing change statement, perfected, proceeds, register, registration, security interest and verification statement.
3. Retention of Title
(a) Property in all the Goods supplied remains vested in Company and does not pass to Customer until all monies owing to Company by Customer together with all collection, repossession and/or legal costs incurred, have been paid in full. Company may demand at any time until title has passed to Customer that Customer returns the Goods or any part of them. The fixing of the Goods by Customer to any other asset or premises will not affect Company’s ownership under this clause, and Company reserves the right to detach any such Goods.
(b) The Goods, whether as separate chattels or as components, must be stored in such a manner as to be clearly identifiable as the property of Company until title has passed to Customer.
(c) In the event that Customer defaults in payment of any monies owing to Company, Company and its employees/agents have the right to enter without notice upon Customer’s premises or any other premises where the Goods are known to be stored to repossess the Goods and for this purpose Customer must grant reasonable access rights and Company, its employees or agents are entitled to do all things required to secure repossession.
(d) Company reserves the right to waive or enforce any provision of clause 3 at its discretion.
(a) All orders to Company must be in writing.
(b) Company will not accept orders that do not meet standard pack quantities.
5. Payment Terms
(a) At Company’s sole discretion, a deposit may be required prior to any supply.
(b) Company may require up-front payment from Customer. If so, net cash payment must be received prior to dispatch of the Goods.
(c) Customers are required to pay all invoiced amounts for purchases, in full and with no deduction or set-off, no more than 30 days from the end of the month during which any given purchase is made.
(d) In the event of a dispute, the entire undisputed portion of the account must be paid in accordance with these Terms.
(e) Should Company consider it necessary to incur legal and/or any other expenses, including expenses to any debt collection agency, in obtaining, or attempting to obtain, payment for any amount due by Customer,Customer is liable for all such expenses.
(f) Amounts received from Customer may be applied by Company first against interest, charges and expenses.
(g) Interest on overdue amounts may be charged at a rate of 1.50% per calendar month or part thereof and Customer is liable for, and expressly undertakes to pay, all such interest.
(h) Any payment made by or on behalf of Customer which is later avoided by the application of any statutory provision is deemed not to discharge Customer’s indebtedness to Company and, in such event, the parties are to be restored to rights which each would have had if the payment had not been made.
(i) Customer is liable for, and expressly undertakes to pay, all fees (including an administration fee in an amount to be set from time to time by Company) for all costs incurred as a result of any cheque or electronic banking transaction being dishonoured for any reason.
(a) Company is not liable for any loss/damage, including consequential loss/damage, arising from delay in delivery or failure to deliver Goods, either whole or in part, due to circumstances beyond its control.
(b) Company is under no obligation to deliver Goods if their full price has not been paid and Company has reasonable doubts as to the solvency of Customer.
(c) Company will use reasonable endeavours to deliver Goods to Customer in accordance with the times stated in any contract between Company and Customer. However, time will not be of the essence and Company will not be liable to Customer if delivery is not on time.
(d) If Customer does not take delivery of the Goods on the date specified in a contract between Company and Customer or any other date as notified by Company to Customer (other than as a result of any act or omission by Company), payment for the Goods (if not already paid in full) will be due on the date specified and interest will accrue at the rate of 18% per annum until payment is made.
(e) Company will deliver to States & Territories within mainland Australia and Tasmania, using it’s standard transport carrier. All deliveries outside these areas are ex works, and risk shall pass to Customer when the Goods leave Company’s premises. Otherwise, risk passes to Customer on delivery. Customer must pay a freight charge and/or other applicable charges per order. Customer is liable for all: (i) charges relating to hand unloading, crane or tail-lift charges; (ii) charges for specific equipment or specialised services; and (iii) charges arising from failed delivery or re-delivery (including storage charges).
(a) If Customer is not a Consumer: (i) Customer must inspect the Goods upon delivery and will, within 7 days of delivery in the case of defects or short deliveries, and within 14 days of despatch in the case of non-delivery, notify Company of any defects, short deliveries or any failure to fulfil any quotation or order; (ii) Customer will, within a reasonable time following the giving of a notice under clause 6a, grant Company access to the Goods in order to inspect for any alleged defects; (iii) should Customer fail to notify Company within the specified period then the Goods are deemed to be in compliance with the order and free from any defect whatsoever; (iv) any drawings or written or verbal descriptions of theGoods are general in nature, and actual Goods may vary slightly from such descriptions. These descriptions are not warranties in relation to the Goods or their condition and Customer may not rely on these descriptions or claim against Company if Goods do not meet descriptions
(b) If Customer is a Consumer, Company will provide a refund, or at the Consumer’s option, arrange for the repair or replacement of the Goods (where practicable), for any Goods which are or become faulty through no fault of the Consumer, are not fit for a stated purpose or a purpose the Consumer has made known to our sales personnel, or do not match a description or sample. Customer must retain a copy of the receipt as proof of purchase.
8. Warranty & Returns
(a) Company warrants that Goods supplied are of merchantable quality.
(b) If Customer is not a Consumer, Company does not warrant that the Goods are fit for a particular purpose and, except or unless otherwise stated, warranties relating to title, defects or conformity are expressly excluded.
(c) Returns will be accepted only if prior arrangements have been made with Company and charges, including but not limited to re-stocking fees, may apply.
(d) Customer is liable for any costs associated with the return of Goods for the purpose of a warranty claim.
Notwithstanding clause 3, the risk in Goods purchased passes to Customer upon delivery to Customer or its agent, or in the case of Ex Works, when the Goods leave Company’s premises. If any of the Goods are damaged or destroyed prior to the title passing to Customer, Company is entitled, without affecting any other rights and remedies under any agreement, to any insurance proceeds payable for the Goods.
(a) Company may amend an order or cancel the delivery of Goods at any time before delivery by giving notice to Customer by any means. If Company amends an order, Customer may without penalty cancel the order by written notice to Company within seven days of such amendment.
(b) Company is not liable for any loss/damage, including consequential loss/damage, arising from such cancellation.
(c) In the event that Customer cancels delivery of Goods (except where such cancellation follows an amendment by Company pursuant to clause 10(a)), Customer is liable for any costs incurred by Company up to the time of the cancellation including, but not limited to, any re-stocking fees incurred by Company.
11. Limitation of Liability
(a) The liability of Company to Customer for any reason related to the performance of Goods delivered under the Terms is limited to replacement or repair of the Goods, or the amount paid or payable by Customer in respect of the particular Goods (at Company’s option).
(b) Without limiting clause 10a, Company is not liable in any circumstances whatsoever for: (i) any loss of profits or contracts suffered by Customer; or (ii) any loss/damage suffered by Customer in circumstances over which Company has no control.
Customer indemnifies Company in respect of any loss, injury, expense or claim arising out of the supply by Company of the Goods, or their storage, installation, use, operation or maintenance, except to the extent that such loss, injury, expense or claim is caused by the negligence of Company or its servants/agents/ subcontractors.
(a) Company accepts no responsibility for changes in any law which may affect supply.
(b) Company is not liable for any breach of these Terms or any provision of any contract between Customer and Company if such breach arises from an act of God, natural disaster, terrorism, war or any other, specified or un-specified, occurrence beyond the control of either party.
(c) The invalidity or unenforceability of any provision of these Terms will not affect the validity or enforceability of the remaining provisions.
(d) Customer acknowledges that all purchases of Goods are made relying solely upon Customer’s own skill and judgment.
Häfele (NZ) Limited - Company Number 437951
PO Box 58-542, Botany, Auckland
16 Accent Drive, East Tamaki, Auckland, 2013