Where the goods and/or services supplied pursuant to this agreement are supplied for the purpose of a business then the provisions of the Consumer Guarantees Act 1993 shall not apply (Section 42.2)
1. ACCEPTANCE AND TERMS
Unless otherwise agreed in writing by BC Direct Ltd. (The Company), the following are the Company’s Terms and Conditions of Sale. These, together with any other Terms and Conditions agreed upon in writing between the Company and the Customer (“The Purchaser”) shall apply to all sales of products by the Company to the Purchaser. The following Terms and Conditions of Sale are accepted as the conditions applicable to all sales whether or not they appear on invoices or delivery documents. The placing of an order shall be deemed to be acceptance of these conditions.
2. PRICE AND ORDERS
2.1 Prices may be altered without notice.
2.2 BC Direct Ltd reserves the right to refuse to accept any order or any part of an order.
3. RISK, DELIVERY AND INSURANCE
Delivery of the Goods shall be deemed to occur when the Goods are delivered to the Purchaser or Purchaser’s premises by the Company or its agent at the location specified by the Purchaser, or when the Purchaser or any employee or agent of the purchaser takes possession of the Goods, whichever occurs first. The Company will make every effort to ensure delivery of Goods is on time but will not be liable for any loss or damage, including (without limitation) consequential loss arising in any way from any delay in delivery. While the goods continue to secure the Purchaser’s Indebtedness and Obligations (as such term is defined in clause 8(a)), the Purchaser must keep the goods insured in the names of BC Direct and the Purchaser for their respective rights and interest and must produce to BC Direct, upon demand, such evidence as BC Direct may require to confirm the existence of such insurance. If the Purchaser defaults in complying with its obligations under this clause, BC Direct may insure the goods and the cost of effecting such insurance must be paid by the Purchaser to BC Direct upon demand.
4.DAMAGE, DEFECTS & LOSS IN TRANSIT
Complaints and claims must be made in writing to the Company by the Customer within forty-eight hours of delivery. Failure to obtain a receipt for goods delivered shall not be proof of non-delivery, short delivery or of any defect. The Company has the right in its discretion in respect of any accepted claim to replace the goods or to credit the appropriate portion of the purchase price thereby fully discharging all its legal liabilities. The Company is not liable for any loss, direct or indirect, or consequential, attributable to defective goods except to the amount of the price for those goods as sold to the Customer. Claims for loss in transit shall be made under the Carriage of Goods Act.
5.PAYMENT TERMS
Where the Company has agreed to extend credit to the Purchaser, payment is due on the 20th of the month following delivery unless varied in writing by the Company. Payment by cheque or by any type of bank transfer will not be considered payment until the payment has been fully cleared through the banking system into the Company’s bank account. If payment is not made in full by the due date the Company is entitled to charge the Purchaser interest on the unpaid overdue balance at the rate of 1.5% per month from due date. Goods purchased on cash accounts are to be paid in full prior to goods leaving the Company’s premises. The purchaser shall indemnify the Company for any expenses incurred (including solicitor/client costs) in the recovery of any monies owing to the Company. Credit shall cease: Where any money owing by the Purchaser to the Company is not paid on its due date. The Purchaser being a Company, any grounds for winding up shall exist or a receiver shall be appointed. The Purchaser being an individual shall do anything which would support a petition for bankruptcy. The Purchaser being a partnership shall or any one of the partnership shall do anything which would support a petition for bankruptcy. For any reason which the Company deems appropriate.
6. GOODS RETURNED FOR CREDIT
The acceptance of goods for credit shall be at the sole discretion of the Company and a 15% or $30.00 re-stocking fee shall apply, whichever is the greater. Goods accepted for credit on return shall be returned free of all charges (freight, insurance, taxes and duties) and be accompanied by the relevant packing slip or invoice number and in the original (and undamaged) packaging and with all relevant manuals and in a saleable condition. 7. TITLE Property and ownership in Goods will not pass to the Purchaser but will remain in the Company until the Company receives payment in full of the purchase price of the Goods and all other amounts owing to the Company from the Purchaser. The Purchaser acknowledges that he/she holds possession of the goods in trust for the Company as the beneficial owner. The Purchaser shall store the goods on his premises in such a manner as to make them readily identifiable as belonging to the Company.
7. CONT’D
If any such goods are sold by the Purchaser prior to payment or shall have become constituents of or in any other way incorporated into any other goods, then the proceeds of such sale therefore or and/or such other goods shall be the property of the Company and held on trust for the Company and shall be kept separate and identified as such and delivered to the Company on demand. The purchaser irrevocably authorises the Company to enter at any time (with such reasonable force as may be necessary), onto any place where the goods are situated or thought to be situated and to repossess and resell such goods and to retain the proceeds.
8. SECURITY INTEREST
(a) The Purchaser grants to BC Direct a security interest in the goods as security for payment of the Contract Price and all other monies payable from time to time to BC Direct by the Purchaser, and for the performance by the Purchaser of all the Purchaser’s other obligations from time to time to BC Direct, (together the “Purchaser’s Indebtedness and Obligations”). For the purposes of section 36(1)(b) of the Personal Properties Securities Act 1999 (“PPSA”), and to ensure maximum benefit and protection for BC Direct by virtue of section 36(1)(b)(iii) of the PPSA, the Purchaser confirms and agrees that the Purchaser intends to and does grant to BC Direct, as security for the Purchaser’s Indebtedness and Obligations, a security interest in all of the Purchaser’s present and after-acquired property except only for any such property which is or comprises items or kinds of personal property (“Excepted Property”); (i) in or to which the Purchaser has rights; and (ii) which has not been supplied by BC Direct to the Purchaser, other than any Excepted Property which is or comprises proceeds of any of that present and afteracquired property which has been supplied by BC Direct to the Purchaser. (b) The Purchaser agrees to do anything that BC Direct requires to ensure that BC Direct has a perfected security interest and (if applicable) a purchase money security interest in the goods. (c) BC Direct may allocate all amounts received from the Purchaser in any manner it determines including any manner required to preserve any purchase money security interest in the goods. (d) While the goods continue to secure the Purchaser’s Indebtedness and Obligations, the Purchaser must store the goods separately and clearly identify the goods as being subject to BC Direct’s security interest. (e) The Purchaser agrees that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to this contract, or the security under this contract, and waives the Purchaser’s rights under section’s 121, 125, 129, 131 and 132 of the PPSA. (f) The Purchaser waives the right to receive a copy of the verification statement confirming registration of a financing statement or financing change statement relating to the security interest under this contract. (g) The Purchaser must advise BC Direct immediately if the Purchaser commits any of the acts specified in clause 6 or of any action by third parties (including any of its creditors) affecting BC Direct’s security interest in the goods.
9. GOODS ON APPROVAL
Goods supplied “on approval” will be supplied at the Company’s discretion only and with a valid Customer order number. All goods supplied “on approval” shall be returned to the Company on demand. Where goods have not been returned upon demand an Invoice will be generated. Goods supplied “on approval” shall be subject to the conditions as to risk (ante).
10. WARRANTIES
The Company’s liability shall extend only to repair or replacement of goods, under warranty and shall not extend to any consequential damages and or loss. The company will not accept liability where, in the company’s opinion, the product has been misused or used incorrectly. {A full description of the fault(s) must be supplied with returned products}. 11. SEVERABILITY If any provision or part of a provision of these conditions shall not be enforceable or might prejudice the application of the conditions relating to Ownership of the goods that provision or part shall be deemed deleted and the rest of these conditions shall remain in full force and effect.
12. WHEREVER
The Purchaser is a limited liability company, each and every Director thereof shall enter into a personal indemnity and/or guarantee as required on the Credit Application form and such personal guarantee is to be read in conjunction herewith.
13. PRIVACY ACT
The Purchaser hereby accepts and agrees that as a Condition of Trade the Company may and is hereby authorised to seek and obtain information on its Customers from its Credit and other agencies and in the case of debtors to provide details of such to the Company’s Credit and Debt Collection Agencies.