1.1 “CE” means Disabled Citizens' Society (Otago) Incorporated T/A Cargill Enterprises, its successors and assigns or any person acting on behalf of and with the authority of Disabled Citizens' Society (Otago) Incorporated T/A Cargill Enterprises.
1.2 “Customer” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
1.3 “Goods” means all Goods or Services supplied by CE to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable (plus any Goods and Services Tax (GST) where applicable) for the Goods as agreed between CE and the Customer in accordance with clause 5 below.
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with the consent of both parties in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and CE.
2.3 The Customer acknowledges and accepts that the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, CE reserves the right to vary the Price with alternative Goods as per clause 5.2. CE also reserves the right to halt all Services until such time as CE and the Customer agree to such changes. CE shall not be liable to the Customer for any loss or damage the Customer suffers due to CE exercising its rights under this clause.
2.4 The Customer acknowledges and accepts that:
(a) CE shall have the authority to accept internet orders via their respective website and/or any alternative online auction sites;
(b) if the Customer is not the cardholder for any credit card being used to pay for the Goods, CE shall be entitled to reasonably assume that the Customer has received permission from the cardholder for use of the credit card for the transaction.
3. Electronic Transactions Act 2002
3.1 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 22 of the Electronic Transactions Act 2002 or any other applicable provisions of that Act or any Regulations referred to in that Act.
4. Change in Control
4.1 The Customer shall give CE not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by CE as a result of the Customer’s failure to comply with this clause.
5. Price and Payment
5.1 At CE’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by CE to the Customer; or
(b) CE’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
5.2 CE reserves the right to change the Price if a variation to CE’s quotation is requested. Any variation from the plan of scheduled Services or specifications of the Goods (including, but not limited to, any variation as a result of fluctuations in currency exchange rates or increases to CE in the cost of taxes, levies, materials and labour) will be charged for on the basis of CE’s quotation and will be detailed in writing, and shown as variations on CE’s invoice. The Customer shall be required to respond to any variation submitted by CE within five (5) working days. Failure to do so will entitle CE to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
5.3 At CE’s sole discretion a non-refundable deposit may be required.
5.4 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by CE, which may be:
(a) before delivery of the Goods;
(b) for certain approved Customers, due twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
(c) seven (7) days following the date of invoice; or
(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by CE.
5.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Customer and CE.
5.6 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by CE nor to withhold payment of any invoice because part of that invoice is in dispute.
5.7 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to CE an amount equal to any GST CE must pay for any supply by CE under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
6. Delivery of Goods
6.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Goods at CE’s address; or
(b) CE (or CE’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
6.2 At CE’s sole discretion the cost of delivery is in addition to the Price.
6.3 CE may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.4 Any time specified by CE for delivery of the Goods is an estimate only and CE will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that CE is unable to supply the Goods as agreed solely due to any action or inaction of the Customer, then CE shall be entitled to charge a reasonable fee for redelivery and/or storage.
7.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
7.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, CE is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by CE is sufficient evidence of CE’s rights to receive the insurance proceeds without the need for any person dealing with CE to make further enquiries.
7.3 If the Customer requests CE to leave Goods outside CE’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Customer’s sole risk.
7.4 In the event that the Customer provides CE with any information and/or measurements relating to the supply of the Goods, CE shall be entitled to rely on the accuracy of any such information provided by the Customer. The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, CE accepts no responsibility for any loss, damages, or costs however resulting from the supply of inaccurate measurements or other information.
7.5 The Customer acknowledges that variations of colour and shade are inherent in fabric dye lots. While every effort will be taken by CE to match colour and shade of the Goods, CE shall not be liable for any loss, damage or costs, howsoever arising resulting from any variation in colour and shading between batches of the Goods or sale samples and the final Goods supplied.
7.6 Where the Customer has supplied materials for CE to complete the Services, the Customer acknowledges and accepts full responsibility for the suitability of purpose, quality, and any faults inherent in the materials. CE shall not be responsible for any defects in the Services, or any loss or damage to the materials (or any part thereof), howsoever arising from the use of materials supplied by the Customer.
7.7 Any advice, recommendation, information, assistance or service provided by CE in relation to Goods or Services supplied is given in good faith, is based on CE’s own knowledge and experience and shall be accepted without liability on the part of CE and it shall be the responsibility of the Customer to confirm the accuracy and reliability of the same in light of the use to which the Customer makes or intends to make of the Goods or Services.
8.1 The Customer shall ensure that CE has clear and free access to the work site at all times to enable them to undertake the Services. CE shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of CE.
9. Compliance with Laws
9.1 The Customer and CE shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services.
9.2 CE warrants that Goods manufactured on its registered premises, and supplied to all Customers, shall meet all safety regulations and standards as defined by the Hazard Analysis and Critical Control Points (HACCP), Food Safety Programme, and is eminently suitable for public consumption.
10.1 CE and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid CE all amounts owing to CE; and
(b) the Customer has met all of its other obligations to CE.
10.2 Receipt by CE of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
10.3 It is further agreed that until ownership of the Goods passes to the Customer in accordance with clause 10.1:
(a) the Customer is only a bailee of the Goods and must return the Goods to CE on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for CE and must pay to CE the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for CE and must pay or deliver the proceeds to CE on demand.
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of CE and must sell, dispose of or return the resulting product to CE as it so directs.
(e) the Customer irrevocably authorises CE to enter any premises where CE believes the Goods are kept and recover possession of the Goods.
(f) CE may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of CE.
(h) CE may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
11. Personal Property Securities Act 1999 (“PPSA”)
11.1 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Goods and/or collateral (account) – being a monetary obligation of the Customer to CE for Services – that have previously been supplied and that will be supplied in the future by CE to the Customer.
11.2 The Customer undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which CE may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, CE for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of CE; and
(d) immediately advise CE of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
11.3 CE and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
11.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
11.5 Unless otherwise agreed to in writing by CE, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
11.6 The Customer shall unconditionally ratify any actions taken by CE under clauses 11.1 to 11.5.
12. Security and Charge
12.1 In consideration of CE agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
12.2 The Customer indemnifies CE from and against all CE’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising CE’s rights under this clause.
12.3 The Customer irrevocably appoints CE and each director of CE as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Customer’s behalf.
13. Customer’s Disclaimer
13.1 The Customer hereby disclaims any right to rescind, or cancel any contract with CE or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by CE and the Customer acknowledges that the Goods are bought relying solely upon the Customer’s skill and judgment.
14.1 The Customer shall inspect the Goods on delivery and shall within three (3) days of delivery (time being of the essence) notify CE of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford CE an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which CE has agreed in writing that the Customer is entitled to reject, CE’s liability is limited to either (at CE’s discretion) replacing the Goods or repairing the Goods.
14.2 Goods will not be accepted for return other than in accordance with 14.1 above, and provided that:
(a) CE has agreed in writing to accept the return of the Goods; and
(b) the Goods are returned at the Customer’s cost within seven (7) days of the delivery date; and
(c) CE will not be liable for Goods which have not been stored or used in a proper manner; and
(d) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
14.3 CE may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of twenty percent (20%) of the value of the returned Goods plus any freight.
14.4 Subject to clause 14.1, non-stocklist items or Goods made to the Customer’s specifications are not acceptable for credit or return.
15.1 For Goods not manufactured by CE, the warranty shall be the current warranty provided by the manufacturer of the Goods. CE shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
15.2 To the extent permitted by statute, no warranty is given by CE as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. CE shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
16. Consumer Guarantees Act 1993
16.1 If the Customer is acquiring Goods for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by CE to the Customer.
17. Intellectual Property
17.1 Where CE has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of CE. Under no circumstances may such designs, drawings and documents be used without the express written approval of CE.
17.2 The Customer shall permit CE to place a small logo and/or other branding mark/text on the Goods unless otherwise requested by the Customer in writing.
17.3 The Customer warrants that all designs, specifications or instructions given to CE will not cause CE to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify CE against any action taken by a third party against CE in respect of any such infringement.
17.4 The Customer agrees that CE may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which CE has created for the Customer.
18. Default and Consequences of Default
18.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at CE’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
18.2 If the Customer owes CE any money the Customer shall indemnify CE from and against all costs and disbursements incurred by CE in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, CE’s collection agency costs, and bank dishonour fees).
18.3 Further to any other rights or remedies CE may have under this contract, if a Customer has made payment to CE, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by CE under this clause 18 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this agreement.
18.4 Without prejudice to CE’s other remedies at law CE shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to CE shall, whether or not due for payment, become immediately payable if:
(a) any money payable to CE becomes overdue, or in CE’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer has exceeded any applicable credit limit provided by CE;
(c) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
19.1 Without prejudice to any other remedies CE may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions CE may suspend or terminate the supply of Goods to the Customer. CE will not be liable to the Customer for any loss or damage the Customer suffers because CE has exercised its rights under this clause.
19.2 CE may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice CE shall repay to the Customer any money paid by the Customer for the Goods. CE shall not be liable for any loss or damage whatsoever arising from such cancellation.
19.3 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by CE as a direct result of the cancellation (including, but not limited to, any loss of profits).
19.4 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
20. Dispute Resolution
20.1 All disputes and differences between the Customer and CE touching and concerning this agreement shall be referred to arbitration under a single arbitrator agreed upon by both parties, or failing agreement, by two arbitrators (one to be appointed by each party) and their umpire (appointed by them prior to arbitration), such arbitration to be carried out in accordance with provisions of the Arbitration Act 1996.
21. Privacy Act 1993
21.1 The Customer authorises CE or CE’s agent to:
(a) access, collect, retain and use any information about the Customer;
(i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Customer.
(b) disclose information about the Customer, whether collected by CE from the Customer directly or obtained by CE from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.
21.2 Where the Customer is an individual the authorities under clause 21.1 are authorities or consents for the purposes of the Privacy Act 1993.
21.3 The Customer shall have the right to request CE for a copy of the information about the Customer retained by CE and the right to request CE to correct any incorrect information about the Customer held by CE.
22. Unpaid Seller’s Rights
22.1 Where the Customer has left any item with CE for repair, modification, exchange or for CE to perform any other service in relation to the item and CE has not received or been tendered the whole of any monies owing to it by the Customer, CE shall have, until all monies owing to CE are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
22.2 The lien of CE shall continue despite the commencement of proceedings, or judgment for any monies owing to CE having been obtained against the Customer.
23. Service of Notices
23.1 Any written notice given under this contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this contract;
(c) by sending it by registered post to the address of the other party as stated in this contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
23.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
24.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
24.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the Dunedin Courts of New Zealand.
24.3 CE shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by CE of these terms and conditions (alternatively CE’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
24.4 Neither party shall assign or sub-contract all or any part of their rights and obligations under this agreement without the written consent of the other party.
24.5 The Customer agrees that CE may amend these terms and conditions by notifying the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for CE to provide Goods to the Customer.
24.6 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
24.7 Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this agreement creates binding and valid legal obligations on them.