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GLENGYLE KNITWEAR (NZ) LIMITED - TERMS AND CONDITIONS OF SALE FOR AUSTRALIA
INTERPRETATION
1.1 In these conditions:-
“the ACL” means the Australian Consumer Law, as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth.).
“the Buyer” means the person buying the goods from the Company.
“the Company” means Glengyle Knitwear (N.Z.) Limited.
“the Contract” means the contract between the Company and the Buyer as described in clause 13.4.
“the Goods” means the goods being purchased by the Buyer from the Company which are the subject of the Contract.
“person” includes a corporation, association, firm, company, partnership or individual.
“the Price” means the price of the Goods as agreed between the Company and the Buyer
1.2 For the purposes of interpretation or construction of these
conditions unless the context otherwise requires:
(a) Words importing the singular or plural number include the plural and singular number respectively;
(b) References to sections, clauses and subclauses are references to sections, clauses and subclauses
In these conditions and references to parties are references to parties to the Contract;
(c) A right granted or reserved may be exercised from time to time;
(d) References to monetary amounts are to Australian currency.
2.1 The Price is based upon rates and costs as at the date of the Contract or, where the Contract arises from a quotation given by the Company, as at the date of quotation of materials, transport, labour, customs duty, insurance and other rates and costs. The Price may be increased by the amount of any increase in the cost of any items affecting the cost of supply due to circumstances beyond the control of the Company which arise or which are passed on to the Company by its suppliers. The Company will notify the Buyer of any increase in the Price.
3.1 The Price shall be GST exclusive.
3.2 Where the payment of taxes or duties assessed or levied in connection with the supply of the goods is the responsibility of the company at law or under clause 6.2, and subject to clause 3.4, the price shall be increased by the amount of such tax or duty.
3.3 Any increase in the amount of such a tax or duty between the date of quotation and the date of delivery of the goods shall be the responsibility of the buyer and the price shall be increased accordingly.
3.4 The Company will provide a tax invoice for the relevant Price applicable to each Contract prior to, at or after the time of delivery under that Contract.
3.5 The Company will provide a tax invoice for the relevant Price applicable to each Contract prior to, at or after the time of delivery under that Contract
4.1 Payment shall be made 20 days following the end of the month after invoicing. Late payment may incur a service charge on the balance overdue and interest under clause 5.
4.2 5 % prompt payment discount may be granted by the Company if payment is made within 10 days of delivery.
4.3 The Buyer will pay each invoice in cleared funds to the bank account nominated by the Company.
4.4 Any legal fees, debt collection fees, costs and disbursements incurred by the company in recovering outstanding monies shall be recoverable from the customer.
4.5 The Buyer shall not be entitled to withhold payment or to make any deductions from the Contract Price without the prior written consent of the Company.
4.6 The Company shall be entitled, without notice, to terminate any credit arrangements if the Buyer should default on any of the terms and conditions set down in this agreement.
4.7 If the Buyer is required by law to make any deduction or withholding from any sum payable by it under these Terms then the sum payable by the Buyer under these Terms in respect of which such deduction or withholding is required to be made shall be increased to the extent necessary to ensure that, after the making of such deduction or withholding, the Company receives and retains (free from any liability in respect of such deduction or withholding) a net sum equal to the sum which it would have received and so retained had no such deduction or withholding been made.
5.1 Interest at 24% per annum calculated on a daily basis shall be payable by the Buyer upon demand by the Company on any monies outstanding under the Contract from the date payment was due until the date payment is received by the Company but without prejudice to the Company’s other rights in respect of non-payment or late payment.
6.2 Delivery shall be made DDP (as that term is defined in Incoterms 2010) at the place indicated in the Contract.
6.4 If delivery is made at the Company’s premises the Company shall if requested by the Buyer arrange insurance for transit.
6.5 If the Buyer fails or refuses or indicates to the Company that the Buyer will fail or refuse to take or accept delivery, then the Goods shall be deemed to have been delivered when the Company was willing to deliver them.
7.1 Risk of any loss or damage to the Goods shall be borne by the Buyer from the time of delivery of the Goods.
8.1 Ownership of the Goods shall remain with the Company until such time as the Buyer shall have paid the Company the price of the Goods and all other monies owing by the Buyer to the Company.
8.2 While ownership of the Goods remains with the Company, the Company reserves the right to enter upon the premises where the Goods are situated and take possession of and remove the Goods without being responsible for any damage caused. The Company may, without prejudice to any other rights and remedies that the Company may have to resell such Goods and apply the proceeds in or towards payment of the price of the Goods and any other monies owing by the Buyer to the Company. All costs and expenses incurred by the Company as a result of any such actions shall be payable by the Buyer to the Company upon demand.
8.3 If, notwithstanding clause 3.1, the Buyer sells or disposes of the Goods then without prejudice the Company’s other rights and remedies:
(a) All consideration received by the Buyer from the sale of the Goods shall be kept in a separate account on trust for the benefit of the Company;
(b) If the Buyer has not received the proceeds of any such sale it shall hold on trust the debt owned to the Buyer for the Goods, and if called upon to do so by the Company, assign to the Company all rights against the person to whom the Buyer has supplied the Goods.
8.4 If the Goods are mixed with or incorporated into any other property then the Company shall be entitled to a share in the resulting end product (“the End Product”) or any proceeds of sale of the End Product in proportion to the Company’s contribution represented by the Goods to the End Product.
9.1 Except to the extent of written warranties given by us to you, all warranties and representation in respect of the goods supplied are excluded to the extent permitted by law, except those expressed by the ACL.
For the sake of clarity, this clause 9 is not intended to limit, exclude or modify the statutory consumer guarantees outlined in the ACL with respect to Buyers residing in Australia, to which the ACL applies.
9.2 We shall not be liable, to the fullest extent permitted by law:
9.2.1 Where you have altered or modified the Goods, misapplied the Goods, or have
subjected them to any unusual or non-recommended use, servicing or handling;
9.2.2 For loss or any factors beyond our control;
9.2.3 For any indirect or consequential loss of any kind;
9.2.4 For any second hand goods;
9.2.5 Where the terms of any care label, written warranty, or any manufacturer’s handbook provided to you has not been complied with.
9.3 Our total liability under any warranty for defective or damaged Goods supplied, or any statutory consumer guarantee is limited at our option to either:
9.3.1 Replacing or repairing the defective or damaged Goods; or
9.3.2 Refunding the price of the defective or damaged Goods.
10.1 Mediation: If a dispute arises, the parties may agree to settle the dispute by mediation before resorting to litigation or arbitration.
10.2 Cancellation: You may not cancel any order for Goods or services or part of it without our written consent. If you do so the following criteria will be applied for disposition of the order:
10.2.1 The Buyer will reimburse the Company for all costs incurred as of the date of the cancellation with respect to the Goods, including but not limited to material costs, freight costs, manufacturing labour and overhead costs, processing fees plus all other costs related to the cancelled order. Such penalty shall be solely determined by the Company and shall be immediately due and payable upon order cancellation.
10.2.2 Any and all prepayments made to the Company will be applied towards such reimbursements of costs.
10.2.3 The Buyer must notify the Company of the intent to cancel in written form within five (5) days of verbal communications.
10.3 Waiver or Variation: Waiver or variation of these terms by us will only be effective if given in writing by an authorized person. If we waive any of these Terms the waiver will not affect our rights under these Terms at any future time.
10.4 Governing Law: Subject to clause 9, these Terms will be interpreted in accordance with and governed by laws of New Zealand and the New Zealand courts will have non-exclusive jurisdiction in respect of all matters between us.
10.5 Privacy Laws: Any personal information you provide to us will be collected and held in accordance with our Privacy Policy, available at www.glengyle.co.nz/privacypolicy. You and any Guarantor (if relevant) authorize us to collect and hold personal information from any source we consider appropriate to be used for the purposes of determining creditworthiness, for communicating promotional activities and product information by us, for debt collection purposes, or for any other related purpose. You further authorize us to disclose personal information held by us for the purposes set out above to any other parties. You understand that you have a right of access and may request correction of personal information held by us about you.
11.1 Security: You acknowledge and agree that by assenting to these terms (as evidenced by you signing a copy of these Terms or providing a written order to us), you grant a security interest (including by virtue of the retention of title clause in clause 8 of these Terms) to us in all Goods previously supplied by us to you (or for your account), all Goods that may be supplied in the future by us to you, any End Products (as defined in clause 8.4 above) and the proceeds of sale of any of the foregoing. For the avoidance of any doubt, these Terms constitute a security agreement for the purposes of the PPSA and the security interest created is as security for payment of amounts owing by you to us for the Goods and all other amounts payable by you to us.
11.2 Financing Statement: You undertake to:
11.2.1 Sign any further documents and/or provide any further information (which information you warrant to be complete, accurate and up-to-date in all respects) which we may reasonably require to enable registration of a financing statement or financing change statement on the Personal Properties Security Register. You shall also sign any further documents and do any further things requested by us to ensure the security interest is enforceable, perfected and otherwise effective and enable us to exercise any powers in connection with any security interest.
11.2.2 Not register a financing change statement of a change demand in respect of the Goods (as those terms are defined in the PPSA) without our prior written consent; and
11.2.3 Give us not less than 14 days prior written notice of any proposed change in your name and/or any other change in details (including, but not limited to, changes in your address, facsimile number, trading name or business practice).
11.2.4 Ensure that no security interest (within the meaning of the PPSA) is created, exists or subsists over the Goods in your possession or under your control other than a security interest arising under these Terms.
11.3 Waiver and Contracting Out
11.3.1 Unless otherwise agreed to in writing by us you waive your right to receive a verification statement in respect of financing statement or financing change statement relating to the security interest.
11.3.2 To the maximum extent permitted by law, sections 96, 123, 125, 126, 128, 129, 132(3)(d), 132(4), 134(1), 142 and 143 of the PPSA shall not apply as between us and you. You waive your rights to receive notices under section 95, 118, 121(4), 130, 132(3)(d), 132(4) and 135 of the PPSA.
12.1 The Buyer may not assign all or any of the rights or obligations of the Buyer under the Contract without the prior written consent of the Company.
13 MISCELLANEOUS
13.1 If any provision of the Contract shall be invalid, void, illegal or
unenforceable the validity, existence, legality and enforceability of the
remaining provisions shall not be affected, prejudiced or impaired.
13.2 The Company will not be liable for any failure or delay in supply or delivery occasioned by strike, lockout, Act of God, shortage of stocks, shortage of labour, lack of skilled labour, failure of a sub-contractor, delays in transit or delivery, legislative, governmental or other prohibitions or restrictions, fire, flood, hostilities or other causes whatsoever (whether similar or not to the foregoing) beyond the Company’s reasonable control.
13.3 The design of any goods sold by the Company to the Buyer and all other intellectual property rights in or relating to the Goods (Company IP) is the exclusive property of the Company and is vested in the Company. The Buyer shall not copy, use or reproduce the whole or any part of the Company IP. The Buyer shall be entitled to receive the benefit of the Company IP solely through the supply of Goods by the Company. The Buyer shall not otherwise have the right to use or grant any other party the right to use the Company IP. The Buyer shall not challenge or otherwise in any way impair the Company’s rights in the Company IP.
13.4 All references to Goods in these Terms shall mean the Goods described in any one or more of the relevant order form, packing slip or invoice (or its equivalent, whatever called) relating to those Goods, on the basis that each such order form, packing slip or invoice (or its equivalent) shall be deemed to be incorporated in and form part of these Terms. All other terms of trade (including any terms of trade stipulated by the Buyer on or in connection with any order) are excluded.