Simon James Design Limited – Terms of Trade
1. Definitions and Interpretation:
1.1 Definitions: In this Contract, capitalised expressions used in the Order shall have the same meaning in these Terms of Trade and the following terms shall have the following meanings:
(a) “Contract”, means, together, the Order and these Terms of Trade;
(b) “Business Day” means a day (other than Saturday or Sunday) on which registered banks are open for business in Auckland;
(c) “Customer” means the person, firm, company or corporate entity with whom SJD enters into the Contract;
(d) “Delivery Address” means the delivery address set out on the Order;
(e) “Delivery Date” means the estimated delivery date set out in the Order;
(f) “GST” means goods and services tax payable under the Goods and Services Tax Act 1985;
(g) “Order” means an order placed by the Customer for the Product;
(h) “Price” means the price quoted and agreed in accordance with clause 2.1;
(i) “Product” means product supplied by SJD to the Customer;
(j) “SJD” means Simon James Design Limited (New Zealand Companies Office No: 1227611) at 61 Upper Queen Street, Newton, Auckland, New Zealand; and
(k) “Terms of Trade” means these terms of trade as may be amended from time to time.
1.2 Interpretation: For the purpose of interpretation or construction of this Contract:
(a) References to clauses and Schedules are references to clauses and Schedules of this Contract.
(b) Words importing the singular or plural number include the plural and singular number respectively.
(c) Headings are inserted for the sake of convenience of reference only and do not affect the interpretation of this Contract.
(d) A reference to a person or entity includes a reference to the persons or entities’ successors and permitted assigns.
2. Quotations and Orders
2.1 SJD will on request from the Customer provide a quotation for the price for a quantity of Product (Price). If the quotation is acceptable to the Customer, the Customer may place an Order for the quoted quantity at the quoted price (subject to the limit on the timeframe for the placement of such an order as set out in the quotation or otherwise advised by SJD).
2.2 Subject at all times to clause 2.1, each Order placed by the Customer will specify the quantity of Product, the Delivery Date to the Delivery Address and any other information required by SJD. Each order will be binding on the Customer once given to SJD and no Order may be cancelled by the Customer without the prior written consent of SJD.
2.3 No Order made by the Customer will be deemed to be accepted by SJD or binding on SJDuntil confirmed in writing by SJD and any deposit has been received by SJD under clause 4.1.
2.4 The Customer is responsible for ensuring the accuracy of the terms of any Order given to SJDand for promptly giving any necessary information to enable SJD to perform its obligations.
3. Delivery and Inspection
3.1 Delivery shall be made at the Delivery Address. SJD shall use reasonable endeavours to deliver the Product by the Delivery Date.
3.2 The Customer accepts that the risk of any loss, damage or deterioration of or to the Productshall be borne by the Customer from the time the Product is delivered to the Customer.
3.3 If for any reason the Customer directly or indirectly refuses or seeks to delay delivery on the Delivery Date, delivery will be deemed to have still occurred on the Delivery Date (with risk in the Product passing from that date) and, without prejudice to its other remedies, the Customer shall be liable to pay on demand full payment of the Price (as if delivery had occurred on the Delivery Date). In the event SJD at its sole discretion agrees to retain the Product pending delivery at a future date, the Customer will be liable on demand for payment of the Price and all storage, insurance and other costs incurred by SJD.
4.1 SJD will invoice the Customer for the Price prior to delivery. SJD reserves the right to require payment of a deposit on the placement of any Order and/or require payment of the Price in full in advance of delivery.
4.2 Payment of the Price and other charges under clause 4.3 are due in cleared funds to the bank account notified by SJD by no later than five Business Days following the date of invoice.
4.3 GST and other taxes and duties relating to the supply of the Product are not included in the Price and will be payable by the Customer in addition to the Price. Unless included in the quoted Price, the Customer must also pay all transport and other charges relating to delivery.
4.4 If payment is not received by SJD on the due date, interest may be charged at the rate of 12% pa., such interest to be calculated on a daily basis from the date payment was due until the date on which payment of the overdue amount (including interest) is made in full and shall accrue after as well as before any court order or judgment.
4.5 The Customer shall not be entitled to withhold payment of, or to make any deduction from, or set off any amount against, any monies payable to SJD under the Contract.
4.6 SJD reserves the right to recover from the Customer all expenses and legal costs incurred by SJD (including solicitor/client costs and debt collector’s costs) in relation to obtaining or seeking to obtain remedy of default in payment by the Customer and the enforcement of the Contract.
4.7 SJD shall have the option of immediately suspending delivery of Product or immediately terminating any Order or this Contract if the Customer has not paid the Price in accordance with the Contract.
5. Intellectual Property
5.1 The Customer acknowledges and agrees that SJD owns and retains the rights to all intellectual property used by or on behalf of SJD in the design and manufacture of the Product including, without limitation, all developments or modifications arising out of or in connection with this Contract (SJD IP). No SJD IP is transferred to the Customer with the Product. The Customer shall execute all documents and otherwise do all things reasonably necessary (at the cost of SJD) to confirm or perfect SJD’s ownership of the SJD IP.
5.2 The Customer will not at any time do anything to prejudice, challenge or impair SJD’s rights in the SJD IP or any other intellectual property owned or used by SJD.
6.1 Title in the Product shall not pass (and the Customer, upon receipt of the Product, shall be a bailee only in respect of them) until the time at which the Customer has paid all monies owing by the Customer to SJD under the Contract or otherwise.
6.2 Until title in the Product passes to the Customer pursuant to clause 6.1, the Customer shall, at its own cost, keep the Product insured.
7.1 SJD warrants that the Product is free from material defects and will comply with any applicable manufacturer warranty that SJD may specify and provide from time to time.
7.2 To the maximum extent permitted by law, it is agreed that the purchase of the Product by the Customer from SJD shall be deemed to be for the purposes of a business and accordingly the Consumer Guarantees Act 1993 shall not apply.
7.3 Except as provided under clause 7.1, all warranties, descriptions, representations and conditions as to fitness, suitability for any purpose or otherwise, whether of a like nature or not, and whether expressed or implied by law, trade custom or otherwise, are expressly excluded to the extent permitted by law.
8.1 The maximum liability of SJD for any loss, damage, injury or cost arising directly or indirectly from any defect of or in the Product supplied, any breach of the Contract, any breach of statutory duty or for negligence or otherwise howsoever arising is limited to the Price.
8.2 SJD shall not be liable for any defect, loss or damage to the Product caused by: (i) use of the Product after the Customer becomes aware of, or notifies, any defect; (ii) any other act or omission by or on behalf of the Customer where risk in the Product has passed to the Customer; (iii) any natural characteristic of the material used including, without limitation, any movement of timber caused by drying or moisture ingress/egress; (iv) blemishes or imperfections that are within tolerances regarded as generally acceptable according to common furniture making practices in New Zealand or which do not affect the suitability of the material for the purpose for which it is used; (v) normal wear and tear, fire or theft, liquid spillage or ingression, vermin or insect infestation, misuse or abusive use, accident or neglect, failure to clean or improper cleaning of the Product, exposure to excessive heat, moisture or dampness, exposure to abnormally corrosive conditions, use of non-authorised, defective or incompatible parts or repair or modification or other work carried out by any person other than by authorised SJD personnel.
8.3 SJD shall not be liable to the Customer or any third party for any consequential, indirect or special damage or loss of any kind howsoever arising, or for any loss of profit, loss of goodwill or reputation or loss of future business.
9. Personal Property Securities Act 1999 (“PPSA”)
9.1 The Customer grants a security interest to SJD in all present and after acquired Product.
9.2 On SJD’s request, the Customer shall promptly execute any documents and do anything else required by SJD to ensure that the security interest created under these Conditions constitutes a first ranking perfected security interest over the Product. The Customer will also provide SJD with any information SJD may reasonably require to complete a financing statement.
9.3 The Customer:
(a) shall immediately notify SJD in writing of any change in the Customer’s name; and
(b) shall immediately notify SJD of any other information SJD may need in order to complete a financing change statement.
9.4 The Customer will waive any right to receive a copy of a verification statement under the PPSA.
9.5 SJD will pay all costs, expenses and other charges incurred, expended or payable by SJD in relation to the filing of a financing statement or financing change statement.
9.6 The Customer agrees that nothing in sections 114(1)(a), 117(1)(c), 133 and 134 of the PPSA shall apply to this Contract.
9.7 The Customer agrees that its rights as debtor in sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA shall not apply to this Contract.
9.8 The Customer will not allow a security interest to be created or registered over the Product in priority to the security interest held by SJD.
9.9 The Customer acknowledges that this Contract constitutes a “security agreement” for the purposes of the PPSA and that SJD may register a financing statement in respect of this Contract.
10.1 Every notice under this Contract shall be given by personal delivery to the address of the party set out in an Order. If any notice is given on a day which is not a Business Day or after 5.00pm in the place in which it is given, it shall be deemed to be given at 9.00am on the next Business Day.
10.2 SJD shall not be liable for any failure or delay in supply or delivery of the Product caused by event or circumstance beyond its reasonable control including without limitation, fire, flood, explosion, earthquake, storm, flood, drought or natural disaster or events caused by pest or disease, civil commotion, hostilities (whether war is declared or not), sabotage, an act of terrorism, chemical or biological contamination, the acts of any Public Authority or any Government sanction, embargo or similar action, compliance with any law, judgment, order or decree, any labour dispute or strike or failure of a sub-contractor; the interruption or failure of any utility services or network, any systemic virus, the failure of the transportation of any personnel, equipment, machinery or supplies and/or the shortage of any fuel, power or supplies. SJD shall notify the Customer of any such event and its anticipated duration and upon the cessation of the event.
10.3 No waiver by SJD of any breach or failure to enforce any provision of the Contract shall in any way affect, limit or waive SJD’s right to subsequently enforce and compel strict compliance with the Contract.
10.4 If any provision of the Contract is or becomes invalid or unenforceable, that provision shall be deemed deleted from the Contract and such invalidity or unenforceability shall not affect the other provisions of the Contract, all of which shall remain in full force and effect to the extent permitted by law, subject to any modifications made necessary by the deletion of the invalid or unenforceable provisions.
10.5 This Contract constitutes the entire agreement between the parties relating to the subject matter of this Contract and shall supersede all previous communications, whether written or oral, between the parties with respect to the subject matter of this Contract. The parties acknowledge that they are not relying on any representation, warranty, agreement, term or condition that is not set out in this Contract. No variation of or substitution for the Terms of Trade (even if included in or referred to in the Customer’s order) will be binding on SJD unless accepted by SJD in writing. SJD may from time to time vary these Terms of Tradeby notice in writing to the Customer or inclusion on the website www.simonjamesdesign.com.
10.6 Neither party may, without the prior written approval of the other party, assign or transfer itsrights or obligations under this Contract to any third person, such approval not to be unreasonably withheld. For the avoidance of any doubt, nothing in this Contract shall prevent SJD from sub-contracting the whole or any part of the design, manufacture and delivery of the Product.
10.7 This Contract will be construed and take effect as an agreement made in New Zealand and will be governed by New Zealand law, and the parties submit to the non-exclusive jurisdiction of the New Zealand courts.