1. APPLICATION AND VARIATION OF TERMS OF TRADE
1.1 These Terms of Trade apply to the supply of all goods and services ("the Goods") by Ginny Tod trading as Ginny Tod Bronzes ("GTB") to the customer ("the Customer") and may be amended from time to time.
2. QUOTATIONS AND ORDERS
2.1 The Customer may request a quote ("the Quotation") from GTB setting out the price and description of the Goods to be supplied. If the Quotation is acceptable to the Customer, the Customer may place an order. If the order is not placed within 30 days of the date of the Quotation, the Quotation is subject to further written confirmation by GTB.
2.2 The Customer must send the purchase order to GTB along with a signed copy of these Terms of Trade. GTB will send the Customer written notice confirming the order.
2.3 GTB will not be bound by any conditions included in the Customer's order unless GTB accepts them in writing.
2.4 GTB has the right not to accept any orders or to cancel any orders, which it has accepted if due to circumstances beyond GTB's control, filling the order is impracticable or uneconomic.
2.5 These Terms of Trade will prevail over and exclude all Acts or legal obligations to the extent permitted by law.
3. PRICE
3.1 The price for the Goods is stated in New Zealand dollars at the date of the order.
3.2 Unless otherwise agreed, prices are exclusiveof Goods and Services Tax, any other taxes, duties, charges and delivery and packaging costs. Goods and Services Tax, and any other applicable taxes, duties, charges and costs will be payable by the Customer in addition to the price.
4. PAYMENT
4.1 An invoice will be issued prior to the delivery of the Goods. The Customer must pay for the Goods prior to delivery unless otherwise agreed in writing. Payment of a deposit and any other payments shall be in accordance with the invoice issued.
4.2 Payment is to be made by direct credit to the bank account nominated by GTB unless some other form of payment is agreed in writing.
4.3 Failure to pay for the Goods by the due date will result in interest on overdue accounts being charged at a rate equal to 1.5% per month on any sum not paid by the due date.
4.4 Any costs, expenses and legal fees GTB incurs in the collection of payment of any invoice may be recovered from the Customer.
4.5 The Customer may not set off against the price payable for the Goods, any claims which the Customer may have against GTB.
4.6 GTB may accept and apply payments from the Customer in respect of any indebtedness and GTB will not be bound by any conditions or qualifications attaching to such payments.
5. SECURITY INTEREST, RISK AND OWNERSHIP
5.1 The Customer grants GTB a security interest in the Goods as security for all amounts owing by the Customer to GTB and the performance of the Customer's obligations under these Terms of Trade.
5.2 The Customer shall ensure that it is always able to identify:
(a) the Goods from any other goods that may be in the Customer's possession; and
(b) the particular Goods to which any invoice relates.
5.3 Title to any particular Goods shall remain with GTB until there are no longer any amounts owing to GTB for those Goods.
5.4 Until title to any particular Goods passes to the Customer, the Customer shall:
(a) hold those Goods as GTB's bailee;
(b) return those Goods to GTB on request; and
(c) hold any cash proceeds of those Goods on trust for GTB in a separate account.
5.5 The Goods shall be at the Customer's risk from delivery (as defined in clause 6) and the Customer shall insure the Goods for their full replacement value.
5.6 If the Customer fails to comply with any term of these Terms of Trade or any other agreement with GTB, GTB or its agent may exercise any and all remedies afforded to a secured party by Part 9 of the Personal Property Securities Act 1999 ("PPSA") and enter any building or premises owned, occupied, or used by the Customer, to search for and re-take possession of the Goods.
5.7 The parties agree that sections 114(1)(a), 117(1)(c), 133 and 134 of the PPSA shall not apply on the enforcement by GTB of any security interest created or provided for by these Terms of Trade. The Customer waives any rights the Customer may have under sections 116, 119, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA on such enforcement.
5.8 The Customer acknowledges receipt of a copy of these Terms of Trade and waives any right to receive from GTB a copy of any financing statement, financing change statement or verification statement that is registered, issued, or received at any time in relation to these Terms of Trade.
5.9 The Customer shall immediately notify GTB of any change of name.
5.10 Unless the context otherwise requires terms and expressions in this clause 5 that are defined in the PPSA shall have the same meaning in this clause 5 as in the PPSA and references to the Goods include references to any one of them.
6. DELIVERY
6.1 Delivery will be completed upon receipt of the Goods by a carrier for delivery to the Customer (where a carrier is used) or upon receipt of the Goods by or on behalf of the Customer where a carrier is not used.
6.2 GTB will deliver the Goods to the place nominated by the Customer. The cost of delivering the Goods to the nominated delivery point will be borne by the Customer and will be shown separately on the relevant invoice.
6.3 If the Customer specifies a delivery date, GTB will use its reasonable endeavours to try and deliver the Goods to the Customer by that date but GTB will not be responsible in any way to the Customer for delivery delays or non-delivery. GTB will not be liable for any damage to the Goods in transit.
7. CONSUMER GUARANTEES ACT
7.1 Nothing in these Terms of Trade shall restrict, negate, modify or limit the Customer's rights under the Consumer Guarantees Act 1993 where:
(a) The Goods are of a kind ordinarily acquired for personal, domestic, or household use or
consumption; and
(b) The Customer is not acquiring the Goods for a business purpose.
8. EXCLUSIONS AND LIMITATIONS OF LIABILITY
8.1 No warranty is given and GTB will not be liable:
(a) for alterations or repairs to the Goods not performed by GTB;
(b) for damage caused by unusual or non-recommended use;
(c) for loss caused by any factors beyond GTB's control;
(d) whether in contract or tort for any special, consequential or economic loss or damage or loss of
profits suffered by the Customer or any other person resulting from any act or omission of GTB.
8.2 GTB's total liability for defective or damaged goods is limited at GTB's option to either:
(a) replacing the defective or damaged goods; or
(b) refunding the price of the defective or damaged goods.
8.3 Subject to clause 7.1 of these Terms of Trade GTB excludes and contracts out of all statutory conditions, guarantees and warranties expressed or implied by the law to the fullest extent permitted by law.
9. PRODUCT DEFECTS
9.1 GTB will at its option either replace defective goods or give a credit or refund for the Goods as long as the Customer's claim has specifically identified the Goods and the defect and the Customer notifies GTB of the defect within 10 days of taking delivery and returns the defective goods to GTB in their delivered state.
9.2 Any costs incurred in returning the goods, including GTB's reasonable handling fees and charges are to be paid by the Customer. The Customer may not withhold any payment due to GTB in respect of any other goods pending the resolution of a claim for a product defect.
10. CANCELLATION
10.1 The Customer may not cancel any order or part of it without GTB's written consent and as a condition of giving such consent, GTB may require to be reimbursed for the cost of labour and materials and other direct or indirect costs incurred by GTB to the date of cancellation.
10.2 GTB will be entitled without liability to the Customer to cancel an order or delivery of an order if:
(a) the Customer becomes insolvent; or
(b) the Customer fails to pay any amount for the Goods on the due date.
11. INTELLECTUAL PROPERTY
11.1 All intellectual property in, and relating to, the Goods (including patents, trademarks, copyright, know how, designs, trade secrets and information confidential to GTB) and any amendments to intellectual property will remain the property of GTB and will not be published or disclosed to any other person by the Customer without the written consent of GTB.
11.2 In the event the Customer provides GTB with specifications for design and/or manufacture of goods by GTB for the Customer, the Customer warrants to GTB that the specifications and any Goods manufactured by GTB based on the said specification will not infringe the copyright, patent, design or other intellectual property rights of any third party, and the Customer will indemnify and keep indemnified GTB from and against any and all claims, liabilities, obligations, expenses or damages GTB may suffer or incur as a result of the use by GTB of the specification.
12. WAIVER
12.1 If GTB waives any breach of the Terms of Trade by the Customer the waiver will not affect GTB's right to exercise its rights under these Terms of Trade at any future time.
13. SEVERABILITY
13.1 Each clause in these Terms of Trade is severable and if any clause is held to be illegal or unenforceable, then the remaining clauses will remain in full force and effect.
14. GOVERNING LAW
14.1 These Terms of Trade will be interpreted in accordance with and governed by the laws of New Zealand and New Zealand Courts will have exclusive jurisdiction over any dispute in relation to the Goods or these Terms of Trade.