1. ACCEPTANCES AND PRICE
1.1 These conditions shall apply to all orders for the goods made by the Buyer after the date shown above. The seller shall comply with the Regulations, bylaws, codes and standards (if any) specified in the Contract or (subject to clause 10.1) implied by statute and the seller shall be under no liability whatsoever for any failure to meet any other regulations, bylaws, codes and standards
2. PAYMENTS AND INTEREST
2.1 Subject to any contrary provision in the contract, payment (being Cleared funds) shall be received on or before the 20th day of the month following the date of the seller’s invoice which shall be issued promptly on or after delivery of the goods in accordance with clause 3. If the Seller doubts the credit/worthiness of the buyer, it may require security for payment and may suspend performance of its obligations under the contract until the provision of sufficient security. The buyer may not withhold payment or make any deductions from or set-offs against the contract price without the prior written consent of the seller. Interest at 18% per annum calculated on a daily basis shall be payable on any moneys outstanding from the date payment was due until the date payment is received by the seller but without prejudice to the seller’s other rights or remedies.
2.2 Any orders of $10.000 or more will require 50% deposit..
3. DELIVERIES AND RISK
3.1 Subject to any express provision to the contrary in the contract the seller shall deliver the goods to the buyer. Risk of any loss, damage or deterioration of or to the goods during delivery shall be borne by the seller until the time of delivery. If the buyer fails or refuses to accept delivery, then the goods shall be deemed to have been delivered when the seller was willing to deliver them. The buyer shall pay any additional costs caused by delays in delivery, or in the buyer accepting delivery.
3.2 The seller may deliver the goods by instalments and each instalment shall be deemed to be a separate contract under the same provisions as the main contract. Should the seller fail to deliver or make defective delivery of one or more instalments this shall not permit the buyer to repudiate the main contract. Delivery of 10% more or less in the quantity of the goods shall constitute performance of the contact, the amount under or over supplied to be deducted or charged for pro-rata.
4.1 If any time for delivery or completion shall be stated in the contract, such time shall be approximate and shall not be deemed to be of the essence. The seller shall not be liable for failure to deliver or for any delay in delivery where such failure or delay is caused by factors beyond the seller’s reasonable control. If any delay in the manufacture, supply or delivery of the goods is caused by the buyer, the seller may require payment of such portion of the contract price that has been performed together with any additional costs. If such delay extends beyond a reasonable time, the seller may, without prejudice to its other remedies, terminate the contract.
5.1 Notwithstanding the granting of credit, the passing of risk, the giving of possession, or delivery of full property (being both legal and equitable title) in the goods shall remain with the seller until the contract price and all other moneys owing have been paid in full. Until property in the goods has passed, the buyer shall hold the goods as the fiduciary agent and the bailee of the seller and shall ensure that the goods are (to the greatest extent practicable) kept separate and identifiable as the property of the seller and shall take all reasonable care in the storage and handling of the goods.
5.2 Notwithstanding that property in the goods is retained by the seller, the buyer may sell the goods in the ordinary course of business and on normal and reasonable commercial terms(as between the buyer and the sub-buyer as principal), and without any authority may be withdrawn by written notice from the seller at any time and shall be deemed automatically withdrawn upon the happening of any of the events specified in clause 8.1.
5.3 Where goods in which property has not passed are sold by the buyer, any book debt created by the sale and the proceeds of such sale shall unless otherwise permitted by the seller (which permission may be withdrawn or varied be held upon trust by the buyer for the seller and any proceeds of sale so received shall be placed in a separate bank account and shall first be used for the payment of all moneys owed by the buyer to the seller.
6.1 The seller warrants that it will repair or make good any defects in the goods within two years from the date of delivery of the goods. No claim shall be accepted under such warranty; unless written notice of the claim is received by the seller as soon as reasonably possible after the defect is discovered; or if any attempt to repair the defective goods is made by any person not authorized by the seller; or if the defective goods have been modified or incorrectly stored, maintained or used. If the seller elects to repair or replace any defective goods, such work shall be undertaken at such place as the seller may reasonably specify and the buyer shall be responsible at its cost and risk for shipment of the defective goods to the place specified; if the seller thereof does not manufacture the goods or any components, this warranty shall not apply. In the case where the manufacturer or supplier of any such goods or components provides a warranty, the seller shall (to the extent that it is able to do so) make such warranty available to the buyer. If the seller fails to perform its warranty obligations under this clause 6, liability for such failure shall be subject to the limitation contained in clause 7.2.
7.1 The seller shall not be liable for any loss of any kind whatsoever suffered by the buyer as a result of any breach of any of the seller’s obligations under the contract including any cancellation of the contract or any negligence on the part of the seller, its servants, agents or contractors nor shall the seller be liable for any loss, damage or injury caused to the buyer’s servants, agents, contractors, customers, visitors, tenants, trespassers or other persons. The buyer shall indemnify the seller against any claim by any such persons.
7.2 Notwithstanding anything else in the contract, the liability of the seller, arising from breach of any of the seller’s obligations under the contract, from any cancellation of the contract or from any negligence on the part of the seller, its servants, agents or contractors shall be limited to damages which shall not in total exceed the contract price.
8. DEFAULTS AND INDEMNITY
8.1 If the buyer defaults in the payment of any moneys owed to the seller, whether under the contract or otherwise, or if the buyer is in default in the performance of its obligations under the contract or otherwise or (in the seller’s opinion) be insolvent then the seller, without prejudice to its other rights and remedies, may suspend or terminate the contract and payment for the goods delivered and work performed up to the date of such suspension or termination and any other moneys owed to the seller shall immediately become due and payable.
8.2 In any of the events specified in clause 8.1 the seller may, as the agent of the buyer (and without notice), enter the premises where the goods are situated and take possession of and remove them without responsibility for any damage caused, and the seller may resell any or all of the goods and apply the proceeds in or towards payment of the contract price and all other moneys owing by the buyer. All expenses incurred by the seller as a result of any such action shall be payable by the buyer upon demand. Any suspension of the contract by the seller shall not prevent it terminating the contract during the period of suspension.
9. DIMENSIONS, SPECIFICATIONS AND COLOUR
9.1 Dimensions and specifications referred to in the contract or in any publications issued by the seller are estimates only. Unless otherwise agreed in writing, it is not a condition of the contract that the goods will correspond precisely with such dimensions and specifications, and customary tolerances, or in the absence of customary tolerances, reasonable tolerances shall be allowed. Should the seller be required to match any shade or colour, a reasonable light and dark tolerance shall be allowed.
10.1 These conditions shall, together with any provisions included in writing in the quotation (where the contract arises from a quotation by the seller), be the conditions of the contract. Subject to any overriding provisions of any statute or regulation all other conditions, warranties, descriptions and representations, are expressly excluded.
10.2 In the event of any conflict between an order or other document submitted by the buyer on the one hand, and these conditions and/or any other document issued by the seller on the other hand, these conditions and/or such other document issued by the seller shall prevail.
10.3 In the event of any conflict between these conditions on the one hand and any other document issued by the seller on the other hand, the provisions of these conditions shall prevail except in the case of a clear and intentional written variation in such other document.
10.4 No agent or representative of the seller is authorized to make any representations, warranties, conditions or agreement not expressly confirmed in writing by an authorized officer of the seller and the seller is not in any way bound by any such unauthorized statements nor can any such statements be taken to form a contract collateral to the contract.
11. WAIVERS AND ASSIGNMENT
11.1 All the original rights, powers, exemptions and remedies of the seller shall remain in full force notwithstanding any neglect, tolerance or delay in the enforcement thereof. The seller shall not be deemed to have waived any condition unless such waiver shall be in writing under signature of the seller and any such waiver, unless the contrary shall be stated, shall apply to and operate only in a particular transaction, dealing or matter. The buyer may not assign all or any of its rights or obligations under the contract without the prior written consent of the seller.
12.1 These conditions of sale are entered into on behalf of and are intended to bind and ensure to the benefit of the company and the company’s successors and assigns.
12.2 In these conditions unless the context otherwise requires:
‘the seller’ means Furniture Conceptions Limited at Auckland;
‘the buyer’ means the person, firm or company buying the goods from the seller;
‘goods’ means the furniture and/or furnishing products being purchased by the buyer from the seller;
‘the contract’ means the contract between the seller and the buyer for the purchase of the goods;
‘the date of the contract’ means: where the contract arises from an order placed by the buyer, the date of acceptance of the order by the seller; or where the contract arises from a quotation given by the seller, the date upon which written notification of acceptance of the quotation is received by the seller;
‘the contract price’ means the price of the goods as agreed between the buyer and the seller;
‘person’ includes a corporation, association, firm, company, partnership or individual.