1.1 “Inter-Weave” shall mean Inter-Weave Limited, or any agents or employees thereof.
1.2 “Customer” shall mean the Customer, any person acting on behalf of and with the authority of the Customer, or any person purchasing products and services from Inter-Weave.
1.3 “Goods” shall mean:
1.3.1 all Goods of the general description specified on the front of this agreement and supplied by Inter-Weave to the Customer; and
1.3.2 all Goods supplied by Inter-Weave to the Customer; and
1.3.3 all inventory of the Customer that is supplied by Inter-Weave; and
1.3.4 all Goods supplied by Inter-Weave and further identified in any invoice issued by Inter-Weave to the Customer, which invoices are deemed to be incorporated into and form part of this agreement; and
1.3.5 all Goods that are marked as having been supplied by Inter-Weave or that are stored by the Customer in a manner that enables them to be identified as having been supplied by Inter-Weave; and
1.3.6 all of the Customer’s present and after-acquired Goods that Inter-Weave has performed work on or to or in which goods or materials supplied or financed by Inter-Weave have been attached or incorporated.
1.3.7 The above descriptions may overlap but each is independent of and does not limit the others.
1.4 “Goods and Services” shall mean all goods, products, services and materials provided by Inter-Weave to the Customer and shall include without limitation the manufacture and supply of textiles, woollen fabrics and woollen blend upholstery fabrics and other fabrics and all related goods and services and all charges for labour and work, hire charges, insurance charges, or any fee or charge associated with the supply of Goods and Services by Inter-Weave to the Customer.
1.5 “Price” shall mean the cost of the Goods and Services as agreed between Inter-Weave and the Customer and includes all disbursements eg charges Inter-Weave pay to others on the Customer's behalf subject to clause 4 of this contract.
2. ACCEPTANCE
2.1 Any instructions received by Inter-Weave from the Customer for the supply of Goods and Services shall constitute a binding contract and acceptance of the terms and conditions contained herein.
3. COLLECTION AND USE OF INFORMATION
3.1 The Customer authorises Inter-Weave to collect, retain and use any information about the Customer, for the purpose of assessing the Customer’s credit worthiness, enforcing any rights under this contract, or marketing any Goods and Services provided by Inter-Weave to any other party.
3.2 The Customer authorises Inter-Weave to disclose any information obtained to any person for the purposes set out in clause 3.1.
3.3 Where the Customer is a natural person the authorities under clauses 3.1 and 3.2 are authorities or consents for the purposes of the Privacy Act 1993.
4. PRICE
4.1 Where no price is stated in writing or agreed to orally the Goods and Services shall be deemed to be sold at the current amount as such Goods and Services are sold by Inter-Weave at the time of the contract.
4.2 The listed or quotation price may be increased if the Company suffers any cost increases which are beyond its control in the supply, production and delivery of Goods (including increases in import costs and changes in currency) between the date of contract (or, where the contract arises from a quotation the date of the quotation) and the date of delivery, where the company can supply written evidence of such cost increases or if the Customer varies or alters its requirements for the Goods. Variations and alterations may result from changes to instructions from the Customer requiring a changed basis for the cost of Goods OR additional goods to be added to the order.
4.3 The price of the goods excludes any amount payable in respect of goods and services tax or any other similar sales tax (GST) which will be paid by the customer in addition to the price.
5. PAYMENT
5.1 Unless otherwise agreed payment for Goods and Services shall be made in full on or before the 20th day of the month following the date of the invoice (“the due date”).
5.2 Interest may be charged on any amount owing after the due date at the rate of 2.5% per month or part month.
5.3 Any expenses, disbursements and legal costs incurred by Inter-Weave in the enforcement of any rights contained in this contract shall be paid by the Customer, including any reasonable solicitor’s fees or debt collection agency fees.
5.4 Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
5.5 Inter-Weave may require the payment of a deposit.
5.6 If at any time the Company reasonably deems the credit of the Customer to be unsatisfactory, it may require the Customer to provide security for payment and/or the Company may suspend performance of any of its obligation under this contract until security is provided to the Company's satisfaction and the Company may require the Customer to pay all costs incurred as a result of suspension and re-commencement of supply including debt collection and legal costs.
6. QUOTATION
6.1 Where a quotation is given by Inter-Weave for Goods and Services:
6.1.1 Unless otherwise agreed the quotation shall be valid for three (3) months from the date of issue; and
6.1.2 The quotation shall be exclusive of goods and services tax unless specifically stated to the contrary;
6.2 Inter-Weave may require the payment of a deposit.
6.3 No order requiring the special importing of Goods for the exlusive use of the Customer may be cancelled without the consent of the Company, and in such cases the Customer will be liable to pay the Company all costs and expenses incurred by the Company in fulfilling the order to the date of cancellation; and if the Goods or any part of the Goods cannot be cancelled from the original manufacturer the Customer will be held liable for the cost of the Goods ordered or prepared by the Company to the time of cancellation.
6.4 Where the Customer has ordered special Goods that are required to be imported by the Company for the exclusive use of the Customer OR where the Goods are to be applied of mixed with second hand or existing goods being the property of the Customer, by declaration in the quotation, it shall be the sole responsibility of the Customer that supply is satisfactory for the purposes they are intended and if the Company uses such supply and incurs costs where supply is not fit for the purpose intended by the Customer, the Customer shall pay the company for all costs incurred in the Company's supply.
6.5 For the sale of Goods to Companies of incorporations not registered in New Zealand the price shall be the price ruling at the date of delivery; and subject to any variation of this clause which shall be notified to the Buyer in writing, the price shall be paid by the Buyer to the Company as follows:
(a) in cleared funds prior to shipment of the Goods by the Company (such as credit card payment) OR
(b) by irrevocable letter of credit at sight and established by the Customer, OR
(c) by any other means as notified to the Customer in writing when the order is placed.
7. RISK
7.1 The Goods and Services remain at Inter-Weave’s risk until delivery to the Customer.
7.2 Delivery of Goods and Services shall be deemed complete when Inter-Weave gives possession of the Goods and Services directly to the Customer or possession of the Goods and Services is given to a carrier, courier, or other bailee for purposes of transmission to the Customer.
7.3 The time agreed for delivery shall not be an essential term of this contract unless the Customer gives written notice to Inter-Weave making time of the essence.
8. AGENCY
8.1 The Customer authorises Inter-Weave to contract either as principal or agent for the provision of Goods and Services that are the matter of this contract.
8.2 Where Inter-Weave enters into a contract of the type referred to in clause 8.1 it shall be read with and form part of this agreement and the Customer agrees to pay any amounts due under that contract.
9. RETENTION OF TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999)
9.1 Upon signing these terms the Customer acknowledges that:
(a) These terms are security agreement for purposes of section 36 of the PPSA, and
(b) A security interest is taken in all Goods previously supplied to the Customer and in any and all Goods that will be supplied in the future by the Company to the Customer during the continuance of the parties relationships.
The Customer undertakes to :
(a) Sign any further documents and/or provide any further information which the Company may reasonably require to register financing statements of financing change statements on the personal Properties Securities Register,
(b) Give the Company not less than 14 days prior written notice of any proposed change to the Customer's name and will use its best endeavours to ensure that a financing change statement is registered disclosing its new name; and
(c) Immediately advise the Company of any material change in its business practices of selling the Goods which would result in a change of the nature of proceeds derived from such sales.
(d) unless otherwise agreed in writing by the Company, The Customer shall inform its creditors of the terms upon which it buys Goods from the Company and that the Company may create and register a Purchase Money Security Interest under the PPSA for the Goods and that the Customer agrees to waive the right to receive a verification statement for purposes of s.148 of the Act. The Customer shall also inform any Trustee in Bankruptcy or Liquidator of the Customer or any Receiver of the Customer's business of assets of the rights of the Company and title to the proceeds of sale.
9.2 The Security Agreement is a continuing security and will operate irrespective of any intervening payment or settlement of account until a release has been signed by the Company. The security interest granted in the Collateral has the same priority in relation to all and any Goods supplied to the Customer by the Company at any time.
9.3 Title in any Goods and Services supplied by Inter-Weave passes to the Customer only when the Customer has made payment in full for all Goods and Services provided by Inter-Weave and of all other sums due to Inter-Weave by the Customer on any account whatsoever. Until all sums due to Inter-Weave by the Customer have been paid in full, Inter-Weave has a security interest in all Goods and Services.
9.4 Where goods and services are returned by Inter-Weave pursuant to clause 9.3 the customer waives the right to receive notice under s120(2) of the Personal Property Securities Act 1999 (“PPSA”) and to object under s121 of the PPSA.
9.5 Where the goods are supplied to the Customer for use or resale in New Zealand, the customer acknowledges and agrees that by agreeing to and/or accepting these Terms it grants a purchase money security interest (as defined under Personal Property securities Act 1999 (PPSA)) to Inter-Weave in the goods to secure Inter-Weaves interest in the goods and all moneys owing or payable by the customer under this agreement and any other moneys payable by the customer to Inter-Weave from time to time on any account whatsoever. Inter-Weave’s security interest in the goods extends to any proceeds, book debts and accounts receivable arising from selling or hiring of the goods. Until ownership of the goods passes to the Customer, the Customer:
9.5.1 Waives its right under the PPSA
(a) To receive a copy of any verification statement, financing change statement, or any notice that Inter-Weave intends to sell the Goods on enforcement of the security interest (as defined in the PPSA) granted to Inter-Weave under these terms;
(b) To object to a proposal by Inter-Weave to retain Goods in satisfaction of any obligation owed by the customer to Inter-Weave;
(c) To redeem the Goods; and
9.5.2 will not give (or allow any person to give) to Inter-Weave a written demand requiring Inter-Weave to register a financing change statement under the PPSA or enter into (or allow any other person to enter into) the personal property securities register a financing change statement under the PPSA.
9.6 The customer acknowledges the it has received value as at the date of first delivery of the Goods and has not agreed to postpone the time for attachment of the security interest (as defined in the PPSA) granted to Inter-Weave’s request, it will promptly execute and deliver to Inter-Weave or its agent any such documents and do such further acts as may be required by Inter-Weave to register the security interest (as that term is defined in the PPSA) granted to Inter-Weave under these Terms or for any other purpose whatsoever, and further agrees that if requested by Inter-Weave that if requested by Inter-Weave it appoint Inter-Weave as its attorney for such purposes in the event that the customer fails, delays or declines to execute such documents or do such further acts.
9.7 These terms of contract between the Company and Customer shall apply to all orders accepted by the Company or quotations approved by the Customer and that these terms and conditions shall prevail and take precedence over any written document or oral message from the Customer and in the case of conflict or dispute between the parties these terms and conditions shall prevail. Where the Company fails to enforce any of the terms and conditions of this contract or fails in any way to exercise its rights under this contract the Company will not be deemed to have waived these rights with respect to any term or condition or right.
9.8 If the Goods and Services 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, title in the Goods and Services shall remain with Inter-Weave until the Customer has made payment for all Goods and Services, and where those Goods and Services are mixed with other property so as to be part of or a constituent of any new Goods and Services, title to these new Goods and Services shall deemed to be assigned to Inter-Weave as security for the full satisfaction by the Customer of the full amount owing between Inter-Weave and Customer.
9.9 The Customer gives irrevocable authority to Inter-Weave to enter any premises occupied by the Customer or on which Goods and Services are situated at any reasonable time after default by the Customer or before default if Inter-Weave believes a default is likely and to remove and repossess any Goods and Services and any other property to which Goods and Services are attached or in which Goods and Services are incorporated. Inter-Weave shall not be liable for any costs, damages, expenses or losses incurred by the Customer or any third party as a result of this action, nor liable in contract or in tort or otherwise in any way whatsoever unless by statute such liability cannot be excluded. Inter-Weave may either resell any repossessed Goods and Services and credit the Customer’s account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs) or may retain any repossessed Goods and Services and credit the Customer’s account with the invoice value thereof less such sum as Inter-Weave reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.
9.10 Where Goods and Services are retained by Inter-Weave pursuant to clause 9.8 the Customer waives the right to receive notice under s.120 of the Personal Property Securities Act 1999 (“PPSA”) and to object under s.121 of the PPSA.
9.11 The following shall constitute defaults by the Customer:
9.11.1 Non payment of any sum by the due date.
9.11.2 The Customer intimates that it will not pay any sum by the due date.
9.11.3 Any Goods and Services are seized by any other creditor of the Customer or any other creditor intimates that it intends to seize Goods and Services.
9.11.4 Any Goods and Services in the possession of the Customer are materially damaged while any sum due from the Customer to Inter-Weave remains unpaid.
9.11.5 The Customer is bankrupted or put into liquidation or a receiver is appointed to any of the Customer’s assets or a landlord distains against any of the Customer’s assets.
9.11.6 A Court judgement is entered against the Customer and remains unsatisfied for seven (7) days.
9.11.7 Any material adverse change in the financial position of the Customer.
9.12 If the Credit Repossession Act applies to any transaction between the Customer and Inter-Weave, the Customer has the rights provided in that Act despite anything contained in these terms and conditions of trade.
10. SECURITY INTEREST FOR SERVICE PROVIDERS
10.1 The Customer gives Inter-Weave a security interest in all of the Customer’s present and after-acquired Property that Inter-Weave has performed services on or to or in which goods or materials supplied or financed by Inter-Weave have been attached or incorporated.
11. PAYMENT ALLOCATION
11.1 Inter-Weave may in its discretion allocate any payment received from the Customer towards any invoice that Inter-Weave determines and may do so at the time of receipt or at any time afterwards and on default by the Customer may reallocate any payments previously received and allocated. In the absence of any payment allocation by Inter-Weave, payment shall be deemed to be allocated in such manner as preserves the maximum value of Inter-Weave’s purchase money security interest in the Goods and Services.
12. DISPUTES AND RETURN OF GOODS
12.1 No claim relating to the manufacture or supply of Goods and Services will be considered unless made within ten (10) days of delivery.
12.2 Inter-Weave will replace or at its option repair, Goods and Services under this contract that are defective and make good any defect in workmanship provided that:
12.2.1 The Customer notifies Inter-Weave in writing of any intended claim within seven (7) days of supply;
12.2.2 Inter-Weave has the opportunity to inspect and decide whether a return is necessary;
12.2.3 The Goods and Services are returned in the same condition and packaging in which they were despatched and with a copy of the invoice.
12.3 The Customer agrees that Inter-Weave will not consider the return of Goods and Services where:
12.3.1 The defect or failure is due to or resulting from damage or misuse, negligence, maintenance or care of the Goods and Services while in possession of the Customer or its agents or failure to follow instructions;
12.3.2 The defect or failure is due to incorrect instructions or design supplied by the Customer;
12.3.3 The defect or failure is due to circumstances beyond the control of Inter-Weave.
12.4 No claims will be accepted by ‘Inter-Weave in respect of goods damaged in transit unless it is notified within 48 hours of receipt of the goods that damage has occurred.
13. JURISDICTION
Any contract with the company shall be deemed to have been executed and entered into in New Zealand and the same shall be constructed enforced and performed in accordance with the laws therefore and any proceedings shall be brought and heard in Auckland New Zealand.
14. LIABILITY
14.1 The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon Inter-Weave 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 Inter-Weave, Inter-Weave’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.
14.2 Except as otherwise provided by clause 14.1 Inter-Weave shall not be liable for:
14.2.1 Any loss or damage of any kind whatsoever, arising from the provision of Goods and Services by Inter-Weave 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 and Services provided by Inter-Weave to the Customer; and
14.2.2 The Customer shall indemnify Inter-Weave against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of Inter-Weave or otherwise, brought by any person in connection with any matter, act, omission, or error by Inter-Weave its agents or employees in connection with the Goods and Services.
15. COPYRIGHT AND INTELLECTUAL PROPERTY
15.1 Inter-Weave, owns and has copyright in all work, samples, drawings, designs, specifications, reports, models, photographs, documents, software and other technical information prepared by Inter-Weave in connection with the Goods and Services that form the subject of this contract and the Customer may use them only if paid for in full and for the purpose for which they were intended and supplied by Inter-Weave.
16. CONSUMER GUARANTEES ACT
16.1 It is acknowledged that where the acquisition of Goods by the Customer from the Company is deemed to be for the business purposes of a business, these terms shall have the affect of contracting out of the provisions of the Consumer Guarantees Act 1993 to the extent permitted by that Act and all provisions of these terms shall be read as modified to the extent necessary to give effect to that intention.
16.2 Where the Customer resells the Goods to third party consumer purchasers the Customer shall be mindful of its obligations under the Act of offer repair, replacement or full value of the Goods to the consumer purchaser subject to the claims conditions and upon informing the Company where damage or defects occur. The Company shall determine the option to be taken at its sole discretion and shall inform the Customer. The Company shall ensure that the Customer does not suffer economic loss in the application of the Company warranty under the Act. The Customer may use published material and instructions of care for the Goods provided by the Company but shall not give or make any undertaking, assertion or representation in relation to the Goods to any other person or company. If the Customer makes any other representations to the purchaser the Customer shall indemnify the Company against any liability or cost incurred by the Company as a result of any breach by the Customer of this provision.
17. GROUNDS FOR TERMINATION BY THE COMPANY
17.1 This agreement may be terminated by the Company immediately on written notice to the Customer, if an Event of Default of payments due to the Company by the Customer occurs, and the Company may enter the premises of the customer where the Goods are stored and remove them.
17.2 Default will also mean if the Customer:
(a) Fails to commence operations of the contract on or before commencement date meaning the execution of the terms of the Quotation or order.
(b) Fails to comply with any quality of standards for the care of Goods issued by the Company.
(c) Shall commit any act of bankruptcy or enter into any composition or arrangement with creditors.
(d) Where the Customer, is a company, do any act which would render it liable to be liquidated or if a resolution is passed of proceedings commenced for the liquidation of the company or if a Receiver is appointed in respect of all or any assets of the company.
No release from obligations. Terminations of this agreement shall not relieve the Customer of its obligations to pay all money owed by it to the Company on any account whatsoever, which money shall be payable immediately notwithstanding that the date for payment of the money may not have arrived. Termination of this agreement shall not relieve the Customer from liability arising from any antecedent breach of the terms of this agreement.
Immediate Steps Upon Termination. Upon the termination of this agreement for any reason, all remaining rights of the Customer granted by this agreement shall terminate.
18. MISCELLANEOUS
18.1 Inter-Weave shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
18.2 Failure by Inter-Weave to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations Inter-Weave has under this contract.
18.3 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.
18.4 The client shall not assign all or any of its rights or obligations under this contract without the written consent of Inter-Weave.
18.5 No order once accepted by Inter-Weave may be cancelled and/or varied by the Customer except by written consent of Inter-Weave.
18.6 Any range development/commitment understanding documentation provided by Inter-Weave and signed by the Customer shall also form part of these terms and conditions of trade.
18.7 These terms and conditions shall be constructed in accordance with the laws of New Zealand.
18.8 Where any provision of these terms is rendered void, unenforceable or otherwise ineffective by operation of law, that shall not affect the enforceability of effectiveness of any other provision of these terms.
GUARANTOR
Where the Customer is a company, the person(s) referred to as guarantor(s) in this contract (Annex A) attached.