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Terms and Conditions
SANTO INDUSTRIES LTD trading as FREDMAN TABLES - Terms & Conditions All present and after acquired products, ("Goods") supplied by SANTO INDUSTRIES LIMITED ("the Company") are supplied to the PERSON, PARTNERSHIP OR COMPANY ("the Customer") for sale on the following terms and conditions: 1. Terms of Contract between Company and Customer 1.1 The Company and the Customer shall acknowledge that these terms of sale constitute a Security Agreement as defined by the Personal Property Securities Act 1999 ("PPSA"). For the purposes of the PPSA, Collateral shall include all and any Goods supplied and the proceeds thereof. The Customer shall agree not to allow any person to file a finance statement over any of the Collateral secured by this Security Agreement without the prior written consent of the Company. 1.2 These terms of contract between the Company and Customer shall apply to all orders accepted by the Company or quotations approved by the Customer and that these terms and conditions shall prevail and take precedence over any written document or oral message from the Customer and in the case of conflict or dispute between the parties these terms and conditions shall prevail. Where the Company fails to enforce any of the terms and conditions of this contract or fails in any way to exercise its rights under this contract the Company will not be deemed to have waived these rights with respect to any term or condition or right. 2. Quotations and Price 2.1 The Company shall publish a price list for its Goods excluding GST and the Customer shall confirm the cost by providing an order to the Company. The Company may cancel any order without liability if it considers the order uneconomic or impractical to fulfil. 2.2 No order requiring the special importing of Goods for the exclusive use of the Customer may be cancelled without the consent of the Company, and in such cases the Customer will be liable to pay the Company all costs and expenses incurred by the Company in fulfilling the order to the date of cancellation; and if the Goods or any part of the Goods cannot be cancelled from the original manufacturer the Customer will be held liable for the cost of the Goods ordered or prepared by the Company to the time of cancellation. 3. Delivery of Goods 3.1 Delivery of the Goods to the care and control of the Customer at the site designated by the Customer shall constitute delivery. The Company will make every effort to ensure that Goods are supplied on time, but will not be responsible for any loss to the Customer arising in any way from delays in delivery. Delivery of +/- ten per cent (10%) of the quantity of Goods ordered shall also constitute and the Customer shall pay price based on the pro rata delivery. 4. Payment 4.1 Payment is to be made upon delivery of the Goods unless the Company has agreed to other credit terms in which case payment shall be by the 20th of the month following the date of invoice or date of quotation or by other payment terms declared in the quotation and final payment is to be made in full without deduction or setoff according to the terms set out in the quotation or confirmation of order. 4.2 The Customer shall agree that the Company has sole discretion to apply payments from the Customer to any transaction or Company invoice notwithstanding that the Customer may have applied the payment to a particular transaction or invoice. 4.3 If payment is not made in full by the due date, the Company is entitled to charge the Customer interest on the unpaid overdue balance at the rate of 5% per annum above the current rate charged by the Company's bank calculated from the due date of payment down to the actual date of payment, and the Company may at its option suspend the sale and secure the Goods in its possession regardless of the term of this contract until the overdue amounts are paid in full. 4.4 If at any time the Company reasonably deems the credit of the Customer to be unsatisfactory, it may require the Customer to provide security for payment and/or the Company may suspend performance of any of its obligations under this contract until security is provided to the Company's satisfaction and the Company may require the Customer to pay all costs incurred as a result of suspension and re-commencement of supply including debt collection and legal costs. 5. Risk, Conditions for the use Goods, Company Ownership and Title 5.1 Risk of any loss, damage or deterioration of or to the Goods shall be borne by the Customer from the time of delivery of the Goods into the Customer's care and control and the Customer shall insure the Goods for fire and loss damage. Where the Customer fails to insure the Goods upon delivery by the Company and the Goods suffer damage or loss the Customer agrees to pay the Company in full for the cost of the Goods. 5.2 The Customer agrees that the Company has legal and equitable right to title in the Goods and ownership shall only pass to the Customer when the contract price is paid. For as long as ownership in the Goods is retained by the Company the Customer will store the Goods separately and in such a way that they are identifiable as the property of the Company. 5.3 In the event where Goods remain unpaid by the Customer, the Company has unreserved right to enter the property of the Customer or its agents during normal business hours and remove Goods relating to the unpaid amount and the Customer will not hold the Company responsible for any economic or consequential loss that the Customer may suffer as a result, whether the Goods are attached to other goods owned by the Customer, or not. For Goods supplied within New Zealand repossession will be conducted in accordance with the Credit (repossession) Act. Page1 6. Retention of Title upon resale of the Goods 6.1 Where Goods in respect of which title has not passed to the Customer are sold by the Customer any book debt created upon sale of such Goods and the proceeds of sale of such Goods, when received by the Customer, shall be held upon trust by the Customer for the Company and any proceeds of sale so received by the Customer shall be placed in a separate bank account and shall first be applied towards the satisfaction of all indebtedness of the Customer to the Company. 6.2 If the Goods, the subject of this contract, have become the constituent of mixed with or attached to any other goods, meaning Goods that are sold by the Company and those goods are sold by the Customer prior to the Company receiving payment, then a portion of the proceeds of that sale, attributable to the Company's Goods shall be the property of the Company, and the Customer shall ensure that such proceeds are at all times held in a separate fund in trust for the Company. 6.3 This reservation of title and ownership is effective whether or not the Goods have been altered from that supplied or mixed with other goods or materials owned by the Customer. Where such Goods are altered or mixed and are severable but not identifiable or where it is impractical to remove the Goods without incurring loss to an innocent third party, the Customer shall agree to give the Company an ownership interest in the property of the Customer in proportion to the contribution made by the Goods to the value of the Customer's property. 7. Personal Property Securities Act (PPSA) 7.1 Upon signing these terms the Customer acknowledges that : (a) these terms are security agreement for purposes of section 36 of the PPSA, and (b) a security interest is taken in all Goods previously supplied to the Customer and in any and all Goods that will be supplied in the future by the Company to the Customer during the continuance of the parties relationships. The Customer undertakes to : (a) Sign any further documents and/or provide any further information which the Company may reasonably require to register financing statements or financing change statements on the personal Properties Securities Register, (b) Give the Company not less than 14 days prior written notice of any proposed change to the Customers name and will use its best endeavours to ensure that a financing change statement is registered disclosing its new name; and (c) Immediately advise the Company of any material change in its business practices of selling the Goods which would result in a change of the nature of proceeds derived from such sales. (d) Unless otherwise agreed in writing by the Company The Customer shall inform its creditors of the terms upon which it buys Goods from the Company and that the Company may create and register a Purchase Money Security Interest under the PPSA for the Goods and that the Customer agrees to waive the right to receive a verification statement for purposes of s.148 of the Act. The Customer shall also inform any Trustee in Bankruptcy or Liquidator of the Customer or any Receiver of the Customers business or assets of the rights of the Company and title to the proceeds of sale. 7.2 The Security Agreement is a continuing security and will operate irrespective of any intervening payment or settlement of account until a release has been signed by the Company. The security interest granted in the Collateral has the same priority in relation to all and any Goods supplied to the Customer by the Company at any time. 8. Variations Any variations regarding price or supply to that agreed in the quotation or order that may be agreed between the parties during the period of supply shall be in writing and take precedence over that part of the quotation or order so affected. 9. Warranty and Guarantees 9.1 The warranty on Goods supplied by the Company shall be the warranty of the original manufacturer and not less than for a period of twelve (12) months following delivery. 9.2 Where the Customer requires the Company to supply non stock Goods or import special Goods for the exclusive use of the Customer the Company warrants that it will supply the Goods as the description defined in the labelling of the Goods but that it will not be held responsible for the fitness of the Goods intended by the Customer except that it will repair, or at its option replace, Goods supplied under this contract that are defective provided that the Customer notifies the Company in writing of any defect within (14) fourteen days of the defect occurring and subject to the warranty conditions. 9.3 The Company shall not be liable for any loss of profits or any consequential, indirect or special loss, damage or injury of any kind whatsoever suffered by the Customer or any other person arising directly or indirectly from any breach of any of the Company's obligations arising under or in connection with the contract including delays in the delivery of Goods or from any cancellation of the contract. 9.4 The Company shall not be liable for any breach or failure to perform any of its obligations under this contract where such breach or failure is caused by war, bad weather, adverse environmental conditions, civil commotion, hostilities, strike or lock out, act of God, fire, governmental regulations or directions, or reasons force majeure caused beyond the Company's reasonable control. The occurrence of such an event shall not give the Customer a right of cancellation of any contract. 9.5 Notwithstanding anything herein before contained elsewhere in the contract, the liability of the Company whether in contract or pursuant to any cancellation of the contract in respect of all claims for loss, damage or injury arising from breach of any of the Company's obligations or from any cancellation of this contract or from any negligence, misrepresentation or other act or omission on the part of the Company, its servants, agents or contractors, shall be linked at the Company's option to repair by a method at the discretion of the Company or replacement or the price of the Goods. Page 2 10. Claims for Damaged or Defective Goods. 10.1 The Company will provide a form for any claims for damaged or defective Goods but will not accept any claim by the Customer for any reasons where the Customer may be prejudiced by the defect or failure of the Goods including economic loss, consequential loss or any other form of loss whatsoever and this guarantee will not apply, where: (a) the Goods have not been paid in full and according to the terms of payment.. (b) the defect is due to or resulting from damage of misuse or use contrary to the printed instructions of the Company for maintenance of care while the possession of the Customer. Common misuse is: - not stocking the Goods in accordance with instructions on the label. - the Goods are used for purposes other than for the description of use. - the Goods are subject to impact during stocking. - the Goods are used to hold loads of any type. - the Goods are subject to excessive vibration or heat or ultra violet light. - the defect or failure is caused by the Customer or a third party on behalf of the Customer attempting altering or mixing with other goods. (d) the Customer or any third party altering the Goods in any way different to the condition in which they were supplied. (e) the defect or failure is due to environmental conditions of the Customers site causing deterioration. 10.2 If the Customer does not comply with the above requirements, the Customer will be deemed to have accepted the Goods and the Company will not incur any liability whatsoever in relation to the Goods. 11. Consumer Guarantees Act 1993 11.1 It is acknowledged that where the acquisition of Goods by the Customer from the Company is deemed to be for the business purposes of a business, these terms shall have the affect of contracting out of the provisions of the Consumer Guarantees Act 1993 to the extent permitted by that Act and all provisions of these terms shall be read as modified to the extent necessary to give effect to that intention. 11.2 Where the Customer resells the Goods to third party consumer purchasers the Customer shall be mindful of its obligations under the Act to offer repair, replacement or full value of the Goods to the consumer purchaser subject to the claims conditions and upon informing the Company where damage or defects occur. The Company shall determine the option to be taken at its sole discretion and shall inform the Customer. The Company shall ensure that the Customer does not suffer economic loss in the application of the Company warranty under the Act. The Customer may use published material and instructions of care for the Goods provided by the Company but shall not, give or make any undertaking, assertion or representation in relation to the Goods to any other person or company. If the Customer makes any other representations to the purchaser the Customer shall indemnify the Company against any liability or cost incurred by the Company as a result of any breach by the Customer of this provision. 12. Grounds for Termination by the Company 12.1 This Agreement may be terminated by the Company immediately on written notice to the Customer, if an Event of Default of payments due to the Company by the Customer occurs, and the Company may enter the premises of the Customer where the Goods are stored and remove them. 12.2 Default will also mean, if the Customer: (a) Fails to commence operations of the contract on or before commencement date meaning the execution of the terms of the Quotation or order. (b) Fails to comply with any quality or standards for the care of the Goods issued by the Company. (c) Shall commit any act of bankruptcy, or enter into any composition or arrangement with creditors. (d) Where the Customer is a company do any act which would render it liable to be liquidated or if a resolution is passed or proceedings commenced for the liquidation of the company or if a Receiver is appointed in respect of all or any assets of the company. No release from obligations. Terminations of this agreement shall not relieve the Customer of its obligations to pay all money owed by it to the Company on any account whatsoever, which money shall be payable immediately notwithstanding that the date for payment of the money may not have arrived. Termination of this agreement shall not relieve the Customer from liability arising from any antecedent breach of the terms of this agreement. Immediate Steps Upon Termination. Upon the termination of this agreement for any reason, all remaining rights of the Customer granted by this agreement shall terminate. 13. Dispute and Arbitration In the event of any dispute between the Company and the Customer arising out of this contract, the Customer shall agree to pay the undisputed part of the outstanding monies owed and such dispute shall be referred to a Mediator to be agreed between the parties and the costs shall be equally shared and upon failure to agree to the outcomes of mediation the dispute shall be referred to an Arbitrator and arbitration conducted in accordance with the Arbitration Act 1996 and any amendments thereof. 14. Guarantor Where the Customer is a company, the person(s) referred to as guarantor(s) in this contract shall personally guarantee the obligations of the Customer.
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