Terms of trade
(a) All goods or services supplied now or at any time by OAKLEYS PLUMBING SUPPLIES LTD; OAKLEYS PLUMING SUPPLIES SOUTHERN LTD; OAKLEYS PLUMBING SUPPLIES CENTRAL LTD, OAKLEYS PLUMBING SUPPLIES TASMAN LTD (together with their agents, administers or assigns called “the Seller”) to the customer described overleaf (together with its agents, administers or assigns called “the Buyer”) (such goods and services called “the Goods”) are supplied subject to the following terms and conditions.
(b) Notwithstanding clause 1(a) the Seller may be written notice to the Buyer alter or replace these terms and conditions from time to time. All orders placed subsequently by the Buyer shall be upon the altered or replaced terms and conditions.
(a) The goods are supplied according to the terms of payment contained in the Application for Credit Account form, unless agreed otherwise in writing, and these terms and conditions. Payment is to be made on the 20th day of the month following statement date. Payment may not be made by credit card expect by prior arrangement. If payment is made by credit card, the Seller reserves the right to charge an administration fee of up to 2 per cent of the payment.
(b) Interest shall be payable by the Buyer on all amounts overdue at the rate of 3 per cent per annum above the Seller’s bank overdraft rate from the date the payment became due until the date of payment and Buyer shall upon demand reimburse the Seller for all costs, expenses or other sums incurred by the Seller in exercising any right or remedy available to it consequent upon default by the Buyer (including full solicitor/client legal costs, being costs on a full indemnity basis), which sums shall also carry interest at the above rate if unpaid within one calendar month of demand having been made.
3. Risk and Title
Until payment has been made of all amounts owed by the Buyer to the Seller (whether or not those amounts of any part therefore are owed in respect of the goods or any contract between the Seller and the Buyer, or are owed subject to any condition or other contingency) the following shall apply;
(a) Legal and equitable ownership of the goods shall not pass from the Seller to the Buyer, notwithstanding the appropriation of the goods to any contract or the delivery of the goods to any contract or the delivery of the goods to or as directed by the Buyer.
(b) If the goods are supplied to or as directed by the Buyer, they are to be dealth with by the Buyer, only as a fiduciary agent and/or bailee of the Seller.
(c) The Buyer carries the full risk in the goods from the date of their delivery by the Seller.
(d) The Buyer shall keep the goods separate and readily identifiable while the goods are in the possession or control of the Buyer.
(e) The Buyer irrevocably authorises the Seller immediately upon default either in payment or of any other term of these conditions or upon the receivership, liquidation or bankruptcy of the Buyer without the necessity of giving notice to enter on and into any property or premises owned or occupied by the Buyer to search for and remove all or any of the goods and to sell or otherwise dispose of the good removed and credit the sale proceeds towards the amounts owed. If all or any of the goods are wholly or partially attached to, intermingled with, or incorporated in any other goods or property, then the Seller may in its sole discretion disconnect, retrieve or sever the goods in order to remove them. The Seller shall not be liable for any damage caused to the Buyer in exercising its rights under this clause.
(f) If at the time of any default either in payment or of any other obligation under these terms and conditions all or any of the goods have been sold or otherwise disposed of by the Buyer for valuable consideration or so as to create a debt owed to the Buyer then the Buyer hereby assigns all leg and equitable title to that consideration and/or debt to the Seller and authorises the Seller to act in all respects as the Buyer in obtaining and realising that consideration and/or debt and crediting the sum obtained towards the amounts owed. The buyer shall hold any monetary consideration received in trust for the Seller in a separate bank account so that the consideration is identifiable and traceable and account to the Seller for all monies owed by the Buyer to the Seller.
(g) If at the time of any default either in payment or any other term of these conditions all or any of the goods have been lost, damaged or destroyed in circumstances that entitle the Buyer to claim reimbursement pursuant to any insurance policy, then the Buyer hereby authorises the Seller to act in all respects as the Buyer in making or pursuing the claim, and hereby assigns to the Seller all legal and equitable title to the proceeds of the claim, which proceeds are to be credited towards the amounts owed.
(h) The Seller may exercise any of the rights and remedies referred to in these terms and conditions entirely without prejudice to any other rights and remedies that may be available to it, and no failure or neglect to act or pursue any right or remedy available to the Seller shall in any way prejudice its right to exercise that or any other right or remedy.
(i) The Buyer is only authorised to sell or otherwise dispose of the goods upon terms and conditions that include terms identical to all of the provisions of this clause 3 including this clause.
(j) If any part of this Clause 3 is deemed to be invalid or unenforceable by the Seller against the Buyer or any other party, only that part of this clause shall be invalid or unenforceable and it shall be severed from this clause leaving the remaining provisions in full force and effect.
4. Consumer Guarantees Act 1993
(a) The provisions of the Consumer Guarantees Act 1993 (“the Act”) are exclused where the Buyer acquires the goods or services from the Seller, or holds itself out as acquiring those goods or services, for the purposes of a business.
(b) Where, in respect of any goods, the Buyer is a Supplier within the meaning of the Act, the Buyer will indemnify the Seller against all liabilities, costs, claims and expenses of whatever nature and whether or not under the Act, in respect of claims by or through parties to whom the goods are supplied by the Buyer.
5. Warranties & Liabilities
(a) The Seller accepts no liability for damaged or faulty goods, short delivery or errors in despatch which would be apparent by inspection on delivery unless the Buyer notifies the Seller in writing within three (3) days from the date of delivery of the goods. The Seller accepts no liability for loss or goods ordered but not delivered unless the Seller receive written notice with fourteen (14) days of the date of the packing slip or invoice relating to those goods (whichever is dated the earlier).
(b) Unless any written warranties are given by the Seller in relation to particular goods, the Seller makes no representation and gives no guarantee or warranty of any kind in relation to the goods (including any representation, guarantee or warranty implied by law to the extend that the representation, guarantee or warranty can be excluded).
(c) The benefit of any representation, guarantee or warrant is personal to the Buyer and is not assignable.
(d) To the extend allowed by law, the Seller’s liability shall be limited to the repair or replacement of good or the supply of equivalent goods or, at the Seller’s option, payment of the proper and reasonable costs of repair or replacement of the goods and to the extend allowed by law, the Seller’s liability under this clause is subject to its maximum liability under clause 5 (e)
(e) Regardless of the legal basis of any claim of any kind made against the Seller, the Seller’s maximum liability under and circumstances shall, to the extent allowed by law, not exceed the purchase price or payable for the goods supplied by the Seller which give rise to that claim.
(f) The Seller shall not, in any event, be liable (whether before or after completion of any contract for the supply of any goods) for any loss or damage arising from caused by or due to any negligence of the Seller’s representatives, servants or agents. The Seller shall not be liable for any special, incidental, indirect or consequential loss or damage which may arise result from or relate to any defective, faulty or damaged goods or any breach by the Seller of its obligations. For the purpose of these terms and conditions consequential loss includes (without limitation) loss of use of goods or services, loss of income or profit and loss or damage to persons and property.
6. Special Purchases
(a) Goods specifically purchased for a customer, if return for a credit, will be subject to a restocking fee
(b) A repackaging charge will apply for goods returned in packaging that is not deemed suitable for reseale
7. Personal Property Securities Act 1999
(a) The Buyer acknowledges that these terms and conditions create a security interest in all present and after acquired goods and any proceeds of the sale of the goods as security for all of the Buyer’s obligations to the Seller pursuant to the Personal Property Securities Act 1999 (“the PPSA”) and that the Seller may register a financing statement to perfect its security interest in the goods delivered or to be delivered to the Buyer in accordance with the provisions of the PPSA.
(b) The Buyer shall provide all information, execute or arrange for execution of all documents and do all other things that the Seller may require to ensure that the Seller has a perfected first ranking security interest in the goods under the PPSA
(c) The Buyer waives its rights to receive a verification statement in respect of any financing statement or financing change statement registered by or on behalf of the Seller under the PPSA and agrees that as between the Seller and the Buyer, the Buyer will have no rights under (or be reference to) sections 114 (1)(a), 116, 117(1)(c), 119, 120(2), 121, 125, 129, 131, 132, 133 and 134 of the PPSA and where the Seller has rights in addition to those in party 9 of the PPSA, those rights shall continue to apply.
(d) The Buyer shall immediately upon request by the Seller, procure from any person considered by the Seller to be relevant to its security position such agreements and waivers as the Seller may at any time require
The Buyer shall immediately notify the Seller of any change in the Buyers name, address details and any other information provided to the Seller to enable the Seller to register a financing change statement if required.
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