Terms

TERMS AND CONDITIONS OF TRADE – GOODS
1. Definitions
In these Terms and Conditions of Trade:
“Account” means the Customer’s account with the Vendor.
“Customer” means the person or entity making the application or any
person acting with ostensible authority on behalf of the Customer.
“Goods” means goods supplied by the Vendor to the Customer at any
time.
“Guarantor” means any party executing a guarantee of the Account with
the Vendor.
“Order” or “Orders” means the order or orders of the Customer to the
Vendor to supply Goods.
"PPSA" means the Personal Property Securities Act 1999.
“Vendor” means Westland Workgear Partnership, being Lewis Bernard
Simpkin and Eleanor Jeanne Simpkin.
2. Orders
Orders will be on such forms or in such manner as the Vendor may
require from time to time.
3. Acceptance
Each Order shall constitute acceptance by the Customer of these Terms
and Conditions of Trade.
4. Prices
Prices are subject to change without notice. All Orders will be charged at
prices prevailing at the date of delivery of the Goods.
5. Delivery
Where the Order makes provision for delivery then delivery shall take
place at the place stated in the Order. If no place is indicated then
delivery shall be made at the physical address of the Customer set out in
the application.
6. Time of Performances
Time shall in no case be of the essence. The Vendor shall not be
responsible for any delay in delivery of the Goods and the Customer shall
not be entitled to cancel orders because of any such delay. Dates for
delivery are given in good faith and are not to be treated as a condition
of sale or purchase. Delivery by the Vendor to a carrier is deemed to be
delivery to the Customer.
7. Terms of Payment
(a) Unless otherwise specified, payment for all Goods shall be made no
later than the 20th day of the month following supply.
(b) An administration fee may be charged on all overdue amounts in
addition to any other charges pursuant to this clause.
(c) Interest will accrue on all amounts overdue at the rate of 2.5% per
month and will be calculated on a day by day basis until payment is
made in full.
(d) All costs of or incurred by the Vendor as a result of a default by the
Customer including but not limited to administration charges, debt
collection costs and legal costs as between solicitor and client shall
be payable by the Customer.
(e) If the Customer defaults in any payment or commits any act of
bankruptcy or any act which would render it liable to be wound up or
if a resolution is passed or proceedings are filed for the winding up of
the Customer or if a receiver is appointed for all or any assets of the
Customer, the Vendor may cancel any Order without prejudice to any
other rights it may have and payment for all completed Orders shall
immediately become due.
8. Quotation
Where a quotation is given by the Vendor for the supply of Goods:
(a) unless otherwise agreed the quotation shall be valid for thirty (30)
days from the date of issue;
(b) the quotation shall be exclusive of Goods and Services Tax unless
specifically stated to the contrary;
(c) the Vendor reserves the right to alter the quotation because of
circumstances beyond its control.
9. Errors or Omissions
Clerical errors or omissions, whether in computation or otherwise in the
quotation, acknowledgement or invoice shall be subject to correction.
10. Risk
(a) From the time of dispatch to the Customer by the Vendor, risk in all
Goods supplied shall pass to the Customer and any loss, damage or
deterioration to the Goods shall be borne by the Customer. The
Customer shall notwithstanding any loss, damage or deterioration to
the Goods remain liable to pay for the Goods.
(b) The Vendor shall be indemnified by the Customer in respect of any
claims, costs, and expenses arising out of any illegal or libelous
matter embroidered or printed for the customer or any infringement
of copyright, trademark, patent, design or other intellectual property
right.
(c) The Customer’s property and all property supplied to be embroidered
by or on behalf of the customer will be held at the customer’s risk.
11. Ownership/General Lien
(a) The Vendor shall retain ownership of all Goods supplied until it
receives payment in full of all amounts owing by the Customer for all
Orders.
(b) If any of the Goods are incorporated in or used as material for other
goods before payment is made ownership in the whole of the other
goods shall be and remain with the Vendor until payment is made.
The Vendor’s Security Interest in the Goods shall continue in the
terms of section 82 of the PPSA.
(c) The Vendor shall have a right to stop and retrieve the Goods in
transit whether or not ownership has passed.
12. Ownership
Until payment is made by the Customer, the Customer agrees to:
(a) ensure the Goods are readily identifiable at all times as the property
of the Vendor;
(b) hold the Goods as trustee for the Vendor and will deal with the Goods
for and on behalf of the Vendor (but will not hold the Customer out
as an agent to any third parties);
(c) if the Goods are re-sold, the proceeds of re-sale will belong to the
Vendor.
(d) While the right to use an Embroidery programme will remain with the
Customer, once paid for, the actual “Programme” or any means of
reproducing the Programme will remain the sole property and right of
the Vendor.
13. Merger with Other Goods
If the Goods are attached, fixed or incorporated into any property of the
Customer, by way of any manufacturing or assembly process by the
Customer or any third party or otherwise, title in the products and
services shall remain with the Vendor until the Customer has made
payment for all Goods and where those Goods are mixed with other
property so as to be part of or constituent of any new goods title to those
new goods shall be deemed to be assigned to the Vendor as security for
the full satisfaction by the Customer of the full amount owing by the
Customer to the Vendor.
14. Recovery of Goods
(a) In the event of non-payment or if payment of the Customer’s
Account is overdue the Vendor shall be entitled without prejudice to
any right it has at law or in equity to enter the place where the
Goods are stored whether the Customer’s premises or property or
the premises or property of a third party for the purpose of
recovering and taking possession of the Goods supplied.
(b) The Customer warrants to the Vendor that where the Goods are
stored on the premises or property of a third party the Customer is
acting as agent for the third party and has the full authority of the
third party to authorise entry on to the premises or property of the
third party for the purpose of recovering the Goods without releasing
the Customer from liability.
(c) The Vendor may resell the Goods and apply the proceeds towards
payment of the Customer’s outstanding Account with the Vendor.
Any shortfall will remain the liability of the Customer. The Customer
indemnifies the Vendor for all costs and expenses including legal
costs as between solicitor and client which the Vendor may incur in
recovering the Goods and any monies owed to it.
15. Warranties
(a) Unless otherwise specified, the Vendor gives no warranty express or
implied as to the quality, description or fitness for any particular
purpose of the Goods.
(b) Where applicable, manufacturer’s warranties will attach to the Goods.
(c) Where Goods supplied are defective in terms of any condition
warranty or guarantee or otherwise do not conform to the Order, the
Vendor will at its discretion replace or repair any faulty Goods or pay
the cost of replacing them, but only if a claim is made by the
Customer within seven days of delivery of the Goods time being of
the essence.
16. Compliance
The Customer shall be solely responsible for obtaining any necessary
permits under and for compliance with all legislation, regulations, by-laws
or rules having the force of law in connection with the installation and
operation of the Goods.
17. Cancellation
The Customer shall not be entitled to cancel an Order other than as
allowed pursuant to these Terms and Conditions of Trade.
18. Returns
The Customer shall not be entitled to return the Goods or cancel an Order
other than as allowed pursuant to these Terms and Conditions of Trade.
19. Personal Property Securities Act 1999
(a) The Customer hereby acknowledges that these Terms and Conditions
of Trade constitute a security agreement which creates a security
interest in favour of the Vendor in all Goods previously supplied by
the Vendor to the Customer (if any) and all after-acquired Goods
supplied by the Vendor to the Customer (or for the Customer's
account) to secure the payment from time to time and at a time,
including future advances. The Customer agrees to grant a
"Purchase Money Security Interest" to the Vendor, as that term is
defined in the PPSA.
(b) The Customer acknowledges and agrees that by assenting to these
terms the Customer grants a security interest (by virtue of the
retention of title clause in these Terms and Conditions of Trade) to
the Vendor and all Goods previously supplied by the Vendor to the
Customer (if any) and all after-acquired Goods supplied by the
Vendor to the Customer (or for the Customer's account) and these
terms shall apply notwithstanding anything express or implied to the
contrary contained in the Customer's purchase order.
(c) The Customer undertakes to:
(i) sign any further documents and/or provide any further
information (which information the Customer warrants to be
complete, accurate and up-to-date in all respects) which the
Vendor may reasonably require to enable registration of a
financing statement or financing change statement on the
Personal Property Securities Register ("PPSR");
(ii) not register a financing change statement as defined in section
135 of the PPSA or make a demand to alter the financing
statement pursuant to section 162 of the PPSA in respect of the
Goods without the prior written consent of the Vendor;
(iii) give the Vendor not less than 14 days' prior written notice of any
proposed change in the Customer's name and/or any other
changes in the Customer's details (including but not limited to
changes in the Customer's address, facsimile number, email
address, trading name or business practice);
© GYW 2005
ver. 2.2
(iv) be responsible for the full costs incurred by the Vendor (including
actual legal fees and disbursements on a solicitor and client
basis) in obtaining an order pursuant to section 167 of the PPSA.
(v) The Customer waives any rights it may have under sections 116,
119, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA
upon enforcement.
(d) Pursuant to section 148 of the PPSA, unless otherwise agreed to in
writing by the Vendor, the Customer waives the right to receive the
verification statement in respect of any financing statement or
financing change statement relating to the security interest.
(e) To the maximum extent permitted by law, the Customer waives its
rights and, with the Vendor's agreement, contracts out of its rights
under sections referred to in sections 107(2), 8(e) and (g) to (l) of
the PPSA.
(f) The Customer agrees that nothing in section 113, 114(1)(a),
117(1)(c), 133 and 134 of the PPSA shall apply to these terms, and,
with the Vendor's agreement, contracts out of such sections.
(g) The Customer and the Vendor agree that section 109(1) of the PPSA
is contracted out of in respect of particular Goods if and only for as
long as the Vendor is not the secured party with priority over all
other secured parties in respect of those Goods;
(h) the Customer agrees that immediately on request by the Vendor the
Customer will procure from any persons considered by the Vendor to
be relevant to its security position such agreement and waivers as
the Vendor may at any time require.
20. Events of Default
All payments shall become immediately due to the Vendor and the
Vendor may at its option suspend or terminate these Terms and
Conditions of Trade and/or exercise any of the remedies available to it
under these Terms and Conditions of Trade in the event that:
(a) a receiver is appointed over any of the assets or undertaking of the
Customer;
(b) an application for the appointment of a liquidator is filed against the
Customer which remains unsatisfied for a period of 10 days, or any
of the conditions necessary to render the Customer liable to have a
liquidator exist, or a liquidator is appointed;
(c) the Customer goes into voluntary liquidation, amalgamates with
another company or acquires its own shares in accordance with the
Companies Act 1993;
(d) the Customer suspends payments to its creditors or makes or
attempts to make an arrangement or composition or scheme with its
creditors; or
(e) the Customer becomes insolvent within the meaning of the
Insolvency Act 1967 or is, becomes, or is presumed to be unable to
pay its debts as they fall due as defined in section 287 of the
Companies Act 1993 or section 261 of the Companies Act 1955; or
commits any act of bankruptcy.
21. Authority to Sell Goods Supplied
Notwithstanding that title in all Goods is retained by the Vendor, the
Customer is authorised to sell the Goods in the ordinary course of
business provided that the authority may be removed by written notice if
the Vendor considers the credit of the Customer to be unsatisfactory or if
the Customer is in default in the performance of its obligations to the
Vendor and shall be deemed automatically revoked if the Customer
commits any act of bankruptcy or any act which would render it liable to
be wound up or if a resolution is passed or proceedings are filed for the
winding up of the Customer or a receiver is appointed for all or any
assets of the Customer.
22. Sale of Goods Supplied
(a) Where Goods in respect of which property has not passed to the
Customer are sold by the Customer in the ordinary course of
business, the book debt created on the sale and the proceeds of sale
when received shall be held by the Customer for the Vendor in terms
of section 45 of the PPSA.
(b) Where any proceeds of sale are placed in the Customer’s bank
account the funds in the Customer’s bank account shall be deemed to
be held on trust for the Vendor to the extent of proceeds of sale.
(c) Where any payments are made from the Customer’s bank account
otherwise than to the Vendor payment shall be deemed to have been
made from all other funds in the Customer’s bank account and not
from funds held on trust for the Vendor .
(d) The trust obligation imposed by this clause and the Vendor’s
entitlements under the PPSA shall continue for so long as the Vendor
is unpaid for all Goods supplied to the Customer.
23. Security Interest
The Customer gives the Vendor a Security Interest in all of the
Customer’s present and after-acquired property in which Goods or
materials supplied or financed by the Vendor have been attached or
incorporated.
24. Liability
(a) The Vendor’s liability to the Customer shall be limited to the value of
the Order supplied.
(b) The Sale of Goods Act 1908, the Fair Trading Act 1986 and other
statutes may imply warranties or conditions or impose obligations
upon the Vendor which cannot by law (or which can only to a limited
extent by law) be excluded or modified. In respect of any such
implied warranties, conditions or terms imposed on the Vendor the
Vendor’s liability shall, where it is allowed, be excluded or if not able
to be excluded only apply to the minimum extent required by the
relevant statute.
(c) Except as otherwise provided above the Vendor shall not be liable for
any loss or damage of any kind whatsoever, arising from the supply
of Goods by the Vendor to the Customer including consequential loss
whether suffered or incurred by the Customer or another person and
whether in contract or tort (including negligence) or otherwise and
irrespective of whether such loss or damage arises directly or
indirectly from Goods provided by the Vendor to the Customer.
25. Suitability of Goods
The Customer must satisfy itself that the Goods as ordered are fit and
suitable for the purpose for which they are required. The Vendor makes
no warranties or representation and expressly negates any implied or
expressed condition that the Goods will be suitable for a particular
purpose or use for which the Customer may use them. The Customer
accepts all risk and responsibility for consequences arising from the use
of the Goods whether singularly or in combination with other Goods.
26. Dimensions and Specifications
Dimensions and specifications contained or referred to in any Order,
catalogues, brochure or other publications maintained or issued by the
Vendor are estimates only.
27. Assignment
(a) The Customer shall not assign all or any of its rights or obligations
under this contract without the written consent of the Vendor.
(b) The Vendor is entitled at any time to assign to any other party all or
any part of a debt which is owing to the Vendor.
28. Disputes
(a) In the event of any dispute arising between the Vendor and the
Customer, such dispute shall in the first instance be referred to
mediation for resolution.
(b) In the event that resolution by mediation is not achieved to the
satisfaction of both parties within 30 days of referral to mediation,
either party may then take legal action to resolve the dispute.
(c) Nothing in this clause prevents the Vendor from taking legal action to
enforce payment of any debt due, nor where required to seek
interlocutory or injunctive relief.
29. Notices
All notices required or committed under these Terms of Trade are to be
served as provided in section 152 of the Property Law Act 1952, or by
facsimile, in which case notice is deemed to be given the day after
sending.
30. Validity
If any provision of this contract shall be invalid, void or illegal or
unenforceable the validity existence, legality and enforceability of the
remaining provisions shall not be affected, prejudiced or impaired.
31. Changes of General Terms and Conditions
(a) The Vendor may at any time refuse an order by the Customer or
decline to approve any application by the Customer for any reason
whatsoever.
(b) The existence of an account by the Customer with the Vendor does
not automatically entitle the Customer to credit in the future.
(c) Failure by the Vendor to enforce any of the terms and conditions
contained in these Terms and Conditions of Trade shall not be
deemed to be a waiver of any of the rights or obligations the Vendor
has under these Terms and Conditions of Trade.
(d) The Vendor may from time to time by written notice to the Customer
amend, add to or repeal the trading conditions covered by this
Agreement or may substitute any fresh trading conditions and such
amendment, addition or substitute trading conditions shall be binding
on the Customer fourteen days after the date of delivery of the
notice.
32. Force Majeure
Neither the Vendor nor the Customer will be liable to the other for any
breach of this Agreement by any extraordinary occurrences which are
beyond the reasonable control of the party in question.
33. Entire Agreement
These Terms and Conditions of Trade constitute the entire agreement and
supersede and extinguish all prior agreements and understandings
between the Vendor and the Customer.
34. Other Agreements
If there is inconsistency between these Terms and Conditions of Trade
and any order submitted by the Customer or any other arrangement
between the Vendor and Customer, these Terms and Conditions of Trade
prevail unless otherwise agreed in writing by the parties.
35. Governing Law
These Terms and Conditions of Trade will be interpreted in accordance
with and governed by the laws of New Zealand and the New Zealand
Courts will have exclusive jurisdiction over any dispute in relation to the
Goods.