2. Additional security: If Seller at any time deems the credit of Customer to be unsatisfactory, Seller may require Customer to pay any or all amounts in advance or to grant security for payment satisfactory to Seller and may suspend performance of its delivery or Installation obligations until that security is provided (at the Customer’s cost).
3. Default Interest: Interest at 5% per annum above Seller’s bank indicator lending rate from time to time calculated on a daily basis shall be payable (on demand) on any moneys outstanding by Customer to Seller from the date payment is due until the date payment is received by Seller but without prejudice to Seller’s other rights and remedies in respect of non-payment or late payment.
4. Cancellation of orders: Seller may cancel any order for Products and, if a deposit has been paid by the Customer in respect of such products, the Seller will promptly refund such deposit. Once an order has been accepted by Seller, it may not be changed or cancelled by Customer.
5. Failure to accept delivery: Without prejudice to any other rights and remedies which it may have, if Customer fails or refuses to take or accept delivery and/or permit Installation at the time specified in the Order Agreement or as otherwise advised by Seller, Seller may deem delivery to have occurred and charge storage and transportation expenses from that time
6. Risk: Risk of any loss, damage or deterioration of or to Products shall be borne by Customer from the date of delivery, or deemed delivery, of Products in accordance with clause 5. Risk of any damage to the Products arising out of Installation work carried out at Customer’s premises shall be borne by Customer except damage caused by the negligence of Seller, its employees, contractors or agents in carrying out the Installation work, which damage shall be the responsibility of Seller.
7. Security interest: Seller retains title in the Products until paid in full. Once title has passed to Customer, Customer grants a security interest to Seller in each and every part of the Products as security for payment off all amounts owing by Customer to Seller from time to time, and for the performance by the Customer of all Customer’s other obligations to Seller from time to time.
8. Customer cooperation: Customer shall do anything that Seller reasonably requires to ensure that Seller has an effective security interest having the priority required by Seller and/or to assist Seller in exercising any of its rights under these Terms.
9. Allocation of payments: Seller may allocate amounts received from Customer in any manner Seller determines.
10. Maintenance of Products: Customer shall keep the Products in good condition and protect them from loss or damage.
11. Verification statement: Customer 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.
12. Customer acknowledgements: Customer agrees that nothing in section 114(1)(a), 133 and 134 of the Personal Property Securities Act (“PPSA”) shall apply to any contract between Customer and Seller, or the security under any contract, and waives Customer’s rights under sections 121, 125, 129, 131 and 132 of the PPSA.
13. The terms “after-acquired property”, “at risk”, “proceeds”, “purchase money security interest” and “security interest” have the respective meanings given to them under, or in the context of, the PPSA.
14. Installation: Customer shall: (a) provide suitable access to the premises in all weather conditions for vehicles and all necessary services (including safe and secure storage for seller’s materials), amenities and other items that Seller, its employees and contractors will need to use in carrying out the Installation (in the applicable timeframes) and ensure that the premises and foundations are structurally sound and in a proper condition for the Installation; and (b) maintain adequate insurance against loss, damage, costs and expenses (including loss of profits and, where installation or other work is to be performed by Seller, its employees and contractors, damage to or destruction of the premises) which may be suffered or incurred as a result of or during the Installation and to ensure that Seller, its employees and/or contractors undertaking the Installation work are named as additional insured parties under all insurance policies.
15. Delay. Where the Customer is responsible for or has requested, the delay, Seller may, without prejudice to its other rights and remedies, require payment by Customer of such portion of the price for such Products and/or Installation as represents the extent to which Seller has performed its obligations up to the date such payment is required together with any expenses or additional costs incurred by Seller as a result of such delay. If the delay continues beyond a reasonable time, Seller may, without prejudice to its other rights and remedies, terminate its contract with Customer. No claim shall be accepted under the Manufacturer's warranty unless written notice of the claim is received by Seller as soon as reasonably practicable after the defect is discovered nor shall Seller be liable: (a) if any attempt to repair the relevant defect is made by any person or persons not authorised by Seller to effect those repairs; (b) if the Products have been dismantled or modified without the approval of Seller; (c) if the Products have not been stored, maintained or used in a proper manner; (d) if such defect is solely due to fair wear and tear; or (e) if the Products have been used in a way that is contrary to any limitations of the Products that have been advised to Customer by Seller, its employees, contractors or agents. Seller shall not be obliged to carry out any work nor be under any liability under this clause for so long as Customer is in default in relation to any payment or in the performance of any obligation under these Terms.
16. Place of repairs: Any repairs to the Products shall be effected at such place as Seller may specify. The Customer shall be responsible for transporting to Seller any Products to be repaired or made good.
17. Manufacturer’s Warranties: Customer shall be entitled to such benefits as Seller may receive under any warranty given to Seller by the manufacturer of the Products to the extent that Seller is able to pass these on to Customer.
18. Consent: Customer is responsible for securing all permits, consents and/or certificates required by any authority in respect of the Products or Installation of the Products at Customer’s premises and copies of all such permits, consents and/or certificates shall be provided to the Seller prior to Installation. If Customer fails to secure such permits, consents and/or certificates prior to the installation date set out in the Order Agreement, the Seller may, in its sole discretion, either delay Installation until the Customer has obtained such consents, permits and/or certificates and provided evidence of the same to the Seller or obtain such consents, permits and/or certif
icates on behalf of the Customer (at the Customer’s cost).
19. Exclusion of warranties conditions, etc: To the fullest extent permissible at law;
(a) all representations, terms, warranties, guarantees, or conditions whether implied by statute, common law or custom of the trade or otherwise are excluded; and
(b) Seller shall have no liability to Customer for anything, other than a breach by Seller of an express provision of these Terms (including but not limited to negligence on the part of Seller, its employees, contractors or agents).
20. No liability for consequential losses, etc: Seller shall not be liable for any loss of profits or any consequential, indirect or special damage or loss of any kind suffered by Customer and the liability of Seller to Customer shall not in aggregate exceed the price paid by customer for the Products and Installation in respect of which the liability arises.
21. Indemnity: Customer shall indemnify Seller against:
(a) any claim against Seller by Customer’s employees, agents, contractors, customers or any other persons (whether similar to the foregoing or not) in respect of any loss, damage or injury arising from any cause relating to or concerning the Products and/or
Installation; and
(b) any liability or cost incurred by Seller as a result of any breach by Customer of any provision of these Terms.
24. Consumer Guarantees Act: Nothing in these Terms is intended to have the effect of contracting out of the provisions of the Consumer Guarantees Act 1993 (“CGA”) except to the extent permitted by the CGA, and all provisions of these Terms shall be read as modified to the extent necessary to give effect to that intention.
25. Returns: Seller may in its absolute discretion, accept a request by Customer to return Products to Seller for credit, exchange or refund. If Seller accepts any request by Customer under this clause, such acceptance will be conditional on Customer delivering, at its expense and risk, the relevant Products to Seller in the same condition and packaging in which they were delivered to Customer, with a copy of Seller’s invoice, within 5 Business Days of Seller’s acceptance and complying with such other terms and conditions as the Seller may apply in respect of that return.
26. Default: If Customer defaults in the performance of its obligations under these Terms or any Products are at risk prior to Installation or payment in full by Customer (“Default”).
If a Default occurs, Seller, without prejudice to any other rights or remedies, may at its option
(a) require all moneys outstanding to be immediately due and payable and enforce the security interest created by clauses 7 to 13; or
(b) enter upon Customer’s premises where the Products are situated and take possession of and remove the same without being responsible for any damage caused, and resell those Products and apply the proceeds in satisfaction or reduction of amounts owing by Customer.
27. Customer shall pay all costs incurred by Seller, (including costs on a solicitor/client basis and debt collectors’ costs) incurred in the recovery or attempted recovery of outstanding moneys and the enforcement of these Terms.
28. Severability: Any unlawful provision in these Terms will be severed and the remaining provisions enforceable.
28. Force majeure: Seller shall not be liable for any failure or delay in complying with any obligation imposed on Seller under these Terms if the failure or delay arises directly or indirectly from a cause reasonably beyond Seller’s control and not due to the default or insolvency, or an intentional act or omission, of Seller.
29. Amendment: Seller may vary these Terms at any time by notice in writing to Customer
30. Assignment: Customer may not assign all or any of its rights or obligations without the prior written consent of Seller.
31. Waiver: No delay or failure to act is a waiver. No waiver is effective unless it is in writing. A waiver of a breach is not a waiver of any other breach.
33. Confidentiality: To the extent that any confidential information is passed by a party to the other, the other party must keep that information confidential.
32. Privacy Act: Customer authorises Seller to contact any credit agency, referee or any other source in order to check, exchange or provide information in relation to Customer and Customer authorises each such source to provide to Seller any information about Customer. If Customer is a natural person the Privacy Act 1993 entitles Customer to have access to personal information held by Seller about Customer and to request correction of that personal information.
33. Acknowledgement: Customer acknowledges that it has received a copy of these Terms and in particular that each contract it enters into with Seller constitutes a “security agreement” for the purposes of the PPSA, and that Seller may register a financing statement.