Terms & Conditions of Trade with Acti-Bush
1. DEFINITIONS
| 1.1 |
"A E" shall mean Active
Engineering Ltd, or any agents or employees thereof.
Under the outlined Terms and Conditions A E refers
to Acti-Bush Limited. |
| 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 A E. |
| 1.3 |
"Goods" shall mean: |
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1.3.1 |
all Goods of the general description specified
on the front of this agreement and supplied by A
E to the Customer and |
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1.3.2 |
all Goods supplied by A E to the Customer, and |
| |
1.3.3 |
all inventory of the Customer that is supplied
by AE and |
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1.3.4 |
all Goods supplied by A E and further identified
in any invoice issued by A E 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 A E or that are stored by the Customer in a manner
that enables them to identified as having been supplied
by A E and |
| |
1.3.6 |
all of the Customer's present and after-acquired
Goods that A E has performed work on or to or in
which goods or materials supplied or financed by
A E have been attached or incorporated. |
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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 advice provided
by A E to the Customer and shall include without
limitation the manufacture, supply, repair and servicing
of equipment and all engineering services and all
charges for labour, hire charges, insurance charges,
or any fee or charge associated with the supply
of Goods and Services by A E to the Customer. |
| 1.5 |
"Price" shall mean the cost
of the Goods and Services as agreed between A E
and the Customer and includes all disbursements
e.g. charges A E pay to others on the Customer's
behalf subject to clause 4 of this contract. |
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2. ACCEPTANCE
Any instructions received by A E 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 A E 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 A E to any other
party. |
| 3.2 |
The Customer authorises A E 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 A E at the time of the contract. |
| 4.2 |
The price may be increased by the amount of any
reasonable increase in the cost of supply of the
Goods and Services that is beyond the control of
A E between the date of the contract and delivery
of the Goods and Services. |
5. PAYMENT
| 5.1 |
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 A E 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 |
A deposit may be required. |
6. QUOTATION
| 6.1 |
Where a quotation is given by A E
for Goods and Services: |
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6.1.1 |
Unless otherwise agreed the quotation shall be
valid for ninety (90) days from the date of issue;
and |
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6.1.2 |
The quotation shall be exclusive of goods and
services tax unless specifically stated to
the contrary; |
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6.1.3 |
A E reserve the right to alter the quotation because
of circumstances beyond its control. |
| 6.2 |
Where Goods and Services are required
in addition to the quotation the Customer agrees
to pay for the additional costs of such Goods and
Services. |
7. TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES
ACT 1999)
| 7.1 |
Title in any Goods and Services supplied
by A E passes to the Customer only when the Customer
has made payment in full for all Goods and Services
provided by A E and of all other sums due to A E
by the Customer on any account whatsoever. Until
all sums due to A E by the Customer have been paid
in full, A E has a security interest in all Goods
and Services. |
| 7.2 |
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 A E 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
A E as security for the full satisfaction by the
Customer of the full amount owing between A E and
the Customer. |
| 7.3 |
The Customer gives irrevocable authority
to A E 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 A E 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. A E 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. A E 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 A E reasonably determines
on account of wear and tear, depreciation, obsolescence,
loss or profit and costs. |
| 7.4 |
Where Goods and Services are retained
by A E pursuant to clause 7.3 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. |
| 7.5 |
The following shall constitute defaults
by the Customer: |
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7.5.1 |
Non payment of any sum by the due date. |
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7.5.2 |
The Customer intimates that it will not pay any
sum by the due date. |
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7.5.3 |
Any Goods and Services are seized by any other
creditor of the Customer of any other creditor intimates
that it intends to seize Goods and Services. |
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7.5.4 |
Any Goods and Services in the possession of the
Customer are materially damaged while the sum due
from the Customer to A E remains unpaid. |
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7.5.5 |
The Customer is bankrupted or put into liquidation
or a receiver is appointed to any of the Customer's
assets or a landlord distrains against any of the
Customer's assets. |
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7.5.6 |
A Court judgment is entered against the Customer
and remains unsatisified for seven (7) days. |
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7.5.7 |
Any material adverse change in the financial position
of the Customer. |
| 7.6 |
If the Credit Repossession Act applies
to any transaction between the Customer and A E,
the Customer has the rights provided in that Act
despite anything contained in these terms and conditions
of trade. |
8. SECURITY INTEREST FOR SERVICE PROVIDERS.
| 8.1 |
The Customer gives A E a security interest in
all of the Customer's present and after-acquired
property that A E has performed services on or to
or in which goods or materials supplied or financed
by A E have been attached or incorporated. |
9. PAYMENT ALLOCATION
| 9.1 |
A E may in its discretion allocate any payment
received from the Customer towards any invoice that
A E 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 A E, payment shall be deemed to be
allocated in such manner as preserves the maximum
value of A E's purchase money security interest
in the Goods and Services. |
10. GENERAL LIEN
| 10.1 |
The Customer agrees that A E may exercise
a general lien against any Goods and Services or
property belonging to the Customer that is in the
possession of A E for all sums outstanding under
this contract and any other contract to which the
Customer and A E are parties. |
| 10.2 |
If the Lien is not satisified within
seven (7) days of the due date A E may, having given
notice of the lien at is option either: |
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10.2.1 |
Remove such Goods and Services and store them
in such a place and in such a manner as A E shall
think fit and proper and at the risk and expense
of the Customer, or |
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10.2.2 |
Sell such Goods and Services or part thereof upon
such terms as it shall think fit and apply the proceeds
in or towards discharge of the lien and costs of
sale without being liable to any person for damaged
caused. |
11. DISPUTES
| 11.1 |
No claim relating to Goods and Services will be
considered unless made within (7) days of delivery. |
12. LIABILITY
| 12.1 |
The Consumer Guarantees Act 1993,
the Fair Trading Act 1986 and other statutes may
imply warranties or conditions or impose obligations
upon A E 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 A E 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. |
| 12.2 |
Except as otherwise provided by clause
12.1 A E shall not be liable for: |
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12.2.1 |
Any loss or damage of any kind whatsoever 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 A E to the Customer; and |
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12.2.2 |
The Customer shall indemnify AE 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 A E or otherwise,
brought by any persons in connection with any matter,
act, omission, or error by AE its agents or employees
in connection with the Goods and Services. |
13. WARRANTY
| 13.1 |
Manufacturer's warranty applies where applicable. |
| 13.2 |
Any warranty that A E provide to the Customer
will also form part of these terms and conditions
of trade. |
14. CONSUMER GUARANTEES ACT
| 14.1 |
The guarantees contained in the Consumer Guarantees
Act 1993 are excluded where the Customer acquires
Goods and Services from A E for the purposes of
a business in terms of section 2 and 43 of that
Act. |
15. PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES
| 15.1 |
If the Customer is a company or trust, the director(s)
or trustee(s) signing this contract, in consideration
for A E agreeing to supply Goods and Services and
grant credit to the Customer at their request, also
sign this contract in their personal capacity and
jointly and severally personally undertake as principal
debtors to A E the payment of any and all monies
now or hereafter owed by the Customer to A E and
indemnify A E against non-payment by the Customer.
Any personal liability of a signatory hereto shall
not exclude the Customer in any way whatsoever from
the liabilities and obligations contained in this
contract. The signatories and Customer shall be
jointly and severally liable under the terms and
conditions of this contract and for payment of all
sums due hereunder. |
16. MISCELLANEOUS
| 16.1 |
A E shall not be liable for delay or failure to
perform its obligations if the cause of the delay
or failure is beyond its control. |
| 16.2 |
Failure by A E 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 A E has under this contract. |
| 16.3 |
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. |
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