Furnware PTY LTD terms and conditions of sale
1. In these terms and conditions of sale, the words “FW” means Furnware PTY Limited and the “Customer” means the company or individual to whom the goods are being supplied.
2. The Customer acknowledges that where goods are being purchased for use in trade.
3. The Customer, its directors (where applicable), signing this contract or participating in the authorisation of any servant or agent to sign, agree to stand as surety and guarantor for all its
debts arising under this agreement and to stand jointly and severally as principal debtor in the event of non-payment by the Customer.
4. The laws of New Zealand shall govern these conditions and any contract subject to these conditions.
5. No dispute between the parties shall be subject to arbitration but shall be subject to New Zealand law and tried in a court in New Zealand. Prior to litigation FW may appoint a mediator if it considers settlement by good faith negotiation is possible.
PAYMENT
6. The contract price is to be paid in full as per the terms and conditions set out on the quote, sales order or invoice. However FW reserves the right to require payment in part or full, in cash either prior to manufacture commencing, or prior to dispatch and delivery. In the event that FW considers that the Customer is likely to be unable to meet it’s obligations, FW reserves the right to demand immediate payment of all amounts owing. The Customer may not deduct or withhold any amount (whether by way of set-off counterclaim or otherwise) from any money owing to FW.
7. FW shall be entitled to deliver and invoice by instalment and to withhold delivery of any instalment until all money due to FW has been paid. No remedial work will be undertaken until all outstanding monies due have been settled and agreements have been met.
8. In the event of non-payment, or of the Customer breaching any other of these conditions, the Customer will be liable to pay default interest at the rate of 2.5% per month on all overdue amounts, including all costs and expenses as referred to in Clause 9 hereof, with such interest continuing after judgement until full payment has been received.
9. In the event of a breach, non-payment or default as contemplated in Clause 8 hereof, the Customer will be liable to pay all of the actual costs of debt collection and/or of legal action incurred by FW on an indemnity basis.
10. FW reserves the right to decline extended or additional credit. Where extended or additional credit is provided FW shall be entitled to security thereon. Such security may be by way of registrable mortgage, chattel security, the requirement for a guarantor, or any other such security, or combination thereof, as it is reasonable in the circumstances to require.
11. Upon the granting of extended or additional credit, or upon the concluding of an agreement, whether written or otherwise, to forebear action in collection of sums properly due and owing pursuant to this agreement (“a forebearance”), FW shall become entitled to the grant of, and the Customer hereby grants and consents to the registration of, a registrable mortgage over any and all land in which the Customer has an interest. The Customer hereby agrees to do all acts, and sign all documents necessary to enable FW to effect to registration of the said mortgage.
12. Upon the Customer failing, refusing or otherwise defaulting in the timely performance of their obligations pursuant to this agreement, and in consideration of FW agreeing to provide extended or additional credit to the Customer, or granting a forbearance, the Customer hereby appoints FW and its assigns and successors to be the true and lawful attorney of the Customer during the continuance hereof for them in their name to execute such mortgage as aforesaid and to do all acts and things as the Customer has hereby covenanted to execute or do as FW shall think desirable for the purpose of giving effect to the foregoing obligations and obtaining in the name of the Lender a Memorandum of Mortgage over that land referred to in Clause 11 hereof.
13. FW may allocate all monies received from the Customer in any manner it determines, including any manner required to preserve any purchase money security interest created by these terms and conditions of sale.
OWNERSHIP
14. The parties intend that all goods supplied are chattels and shall remain the property of FW, as legal and equitable owner, until payment in full of all monies due from the Customer to FW. FW retains a non-possessory lien on all goods and any proceeds of sale of its goods in the Customer’s possession. The Customer grants FW an irrevocable right to enter upon their property, or any property owned or otherwise controlled by them, where the goods are held or may reasonably be thought to be held and re-take possession of the goods. FW may then resell the goods and retain the proceeds of sale. Any shortfall shall be a debt owed by the Customer to FW.
15. Prior to payment, the Customer shall hold all goods, tools and equipment, safe and ascertainable, in its possession upon trust for FW and keep the same properly insured.
16. The Customer acknowledges that these goods and conditions create a security interest in all present and after acquired goods, and holds any proceeds of the sale as security for all of the Customer’s obligations to FW and that FW may register a financing statement to perfect it’s security interest in the goods delivered, or to be delivered to the purchaser in accordance with the provisions of the PPSA.
17. The Customer shall provide all information, execute or arrange for execution of all documents, and do all other things that FW may require to ensure that it has a perfected first ranking security interest in the goods under the PPSA.
18. The Customer waives it’s rights to receive a verification statement, in respect of any financing statement, or financing change statement registered by or on behalf of FW under the PPSA, and agrees that as between FW and the Customer, the Customer will waive any rights under (or by reference to) sections 114(1)(a). 116, 117(1)(c), 119, 120(2), 121, 125, 129, 131, 132, 133, 134 of the PPSA, Where FW has rights in addition to those in Part 9 of the PPSA, those rights will continue to apply.
DELIVERY
19. Time shall in no case be of the essence. FW shall not be responsible for any delay in delivery 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 FW to a carrier is deemed to be delivery to the Customer.
20. If the Customer makes any default or commits any act of bankruptcy or becomes insolvent FW may cancel any order to the extent that it is unfulfilled but without prejudice to its right to payment or otherwise in respect of goods and/or services already delivered. In the case of force majeure either party may cancel any undelivered portion if delay in delivery exceeds 60 days.
21. The Customer shall be responsible to arrange inspection of the goods upon delivery. Any and all claims for damaged or missing goods, which would be apparent at the time of delivery, shall be notified in writing within 48 hours of delivery. Failure to make any such claim(s) within the said 48 hour timeframe, shall and does thereby constitute a waiver of any and all loss or damage(s) sustained.
22. If the Customer is unable to accept delivery of the furniture upon or before the agreed date of delivery, as per the quote or sales order, additional storage charges will apply. The storage will be charged to the customer at a rate of 82c per cube (CBM) per day.