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TERMS AND CONDITIONS OF TRADE

 

The following terms and conditions apply to all goods and/or services supplied from Transit Engineering Limited (hereinafter referred to as the "Company") to you (hereinafter referred to as the "Customer") from time to time.

 

For the purpose of these terms and conditions, the words "goods" and/or "services" means all goods and chattels, services, charges for work and labour done, hire charges, fees, repairs, materials, and insurance charges of whatsoever nature, associated with supply of goods and/or services to the Customer.

 

The Company and the Customer agree as follows:

 

1 GENERAL

1.1 The Customer acknowledges and agrees that these terms and conditions of trade ("terms") apply to all goods and/or services supplied by the Company from time to time and any contract of supply arising between the Company and that the Customer is bound by these terms.

1.2 The Customer acknowledges that no employee or agent of the Company has authority to vary these terms without the prior written consent of one director of the Company.

1.3 The Customer gives consent to the Company to collect, retain and use personal information about the Customer for the purpose of:

(a) Assessing the Customer’s creditworthiness;

(b) Disclosing to a third party, details of the Customer’s credit and any subsequent dealings it may have with the Company for the purpose of recovering moneys payable by the Customer and providing credit references;

(c) Obtaining a credit report from a credit reporting agency.

1.4 The Customer warrants that the person(s) signatures appearing on this document are duly authorised by the Customer to apply for credit and sign this document.

1.5 The signatory(ies) to this document hereby jointly and severally guarantee payment of the Customer’s account to the Company. This guarantee will be a continuing guarantee.

1.6 Use of the Customer’s credit facility constitutes acceptance of these terms.

 

2 ESTIMATES

2.1 If an estimate of the cost of goods and/or services to be supplied by the Company is given to the Customer, the estimate shall not be construed as an offer to supply the goods and/or services within a fixed time or at a fixed price unless otherwise stated on the estimate.

2.2 Unless otherwise stated on the estimate and provided the estimate has not been withdrawn before acceptance, the estimate given to the Customer is open for acceptance by the Customer for a period of 30 days from the date of the estimate.

2.3 The Company may, at its sole discretion and in writing, confirm a purported acceptance after the period of 30 days.

 

3 TERMS OF PAYMENT

3.1 If the Company agrees to grant the Customer a credit facility, payment by the Customer must be made no later than the 20th day of the calendar month following the month of purchase and/or supply of goods and/or services.

3.2 The Customer is not entitled to withhold payment nor make any set-off or deduction of any kind without the prior written consent from the Company.

3.3 Interest may be charged at a rate of 15% per annum on any moneys not paid by the Customer on the due date for payment, calculated on a daily basis until the date payment is received in full and cleared funds.

3.4 The Company reserves the right to suspend all services, work, deliveries and/or credit facilities until all moneys owing are paid in full, and the Company may provide details of any overdue account to a debit collection agency, who may charge a collection fee which shall be charged to the Customer and recoverable as a debt due.

3.5 At all times the Company is entitled to recover from the Customer the value of goods and/or services (as invoiced) as a liquidated sum.

3.6 If the Customer defaults in payment of any accounts and/or moneys owed to the Company or in any of its obligations under these terms or under any other agreement, the Company may exercise any and all remedies afforded to a secured party by the Personal Property Securities Act 1999 ("PPSA").

3.7 The Customer is liable and hereby indemnifies the Company in respect to all costs and expenses (including solicitor/client costs) incurred by the Company in the recovery or attempted recovery of outstanding moneys and the enforcement of these terms.

 

4 GOODS AND SERVICES TAX

4.1 Goods and services tax will be charged by the Company on the cost of the goods and/or services supplied or to be supplied by the Company at the rates prescribed by statute and it is accepted by the Customer as an addition to the cost of the goods and/or services unless otherwise specified.

 

5 RISK AND DELIVERY

5.1 The Company’s delivery records shall be proof of delivery of goods of the quantity, quality and description stated therein. The Company shall not be under any liability whatsoever for the consequence of any delay in completion, dispatch or any delivery of any goods and/or the provision of services for any reason beyond their control.

5.2 Physical delivery of goods by the Company to the Customer or to a carrier or other bailee (whether named by the Customer or not) for the purpose of transmission to the Customer constitutes delivery to the Customer. Cost of delivery and transit insurance are at the Customer’s expense unless specified to the contrary.

5.3 Risk in any goods supplied by the Company shall pass to the Customer on delivery.

5.4 If the Customer is unable to take delivery of the goods, the Company will arrange suitable storage at the Customer’s expense.

 

6 TRANSFER OF OWNERSHIP

6.1 All goods supplied shall remain the sole and absolute property of the Company as the legal and equitable owner until such time as the Customer makes payment in full to the Company of all moneys owing in respect of the goods and/or services supplied by the Company.

6.2 Notwithstanding delivery, all property and title in any goods delivered by the Company shall not pass to the Customer until all moneys due or owing on any account whatsoever by the Customer have been received by the Company in cash or cleared funds without any set-off or deduction of any kind. The delivery of the goods to the Customer under these terms creates a fiduciary relationship between the Company and the Customer in relation to the goods and the Customer shall hold the goods as bailee for the Company.

6.3 Until property and title in the goods passes, the Customer shall keep the goods free from any charge, lien, or other encumbrance or "security interest" as that term is defined in the PPSA.

6.4 To secure payment of all accounts and/or moneys owed by the Customer to the Company from time to time, the Customer as debtor grants a security interest to the Company in all goods previously supplied (if any) and all present and after acquired goods supplied by the Company to the Customer or for the Customer’s account. The Customer acknowledges and agrees that:

(a) The security interest is a Purchase Money Security Interest ("PMSI") as that term is defined in the PPSA.

(b) The goods are collateral (as that term is defined in the PPSA) securing payment of all accounts and/or moneys owed by the Customer to the Company.

(c) The security interest given to the Company includes a security interest in all proceeds of collateral (as those terms are defined in the PPSA).

(d) The Customer undertakes to sign any further documents and provide any further information which the Company may reasonably require to register a financing statement or financing change statement.

(e) So far as permitted by section 107 of the PPSA the Customer will have no rights under sections 114(1)(a), 120(2), 133 or 134 of the PPSA including the right to receive any notices. The rights of the Customer as a debtor pursuant to sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA do not apply to the security interest given by the Customer to the Company.

(f) The Customer agrees to the Company exercising its rights under sections 109 and 120 of the PPSA concurrently and to the Company retaining all repossessed goods immediately so that the Company’s rights under section 123 of the PPSA shall become effective immediately upon repossession.

(g) The repossession and retention of goods under sections 120 to 123 will immediately extinguish any rights or any interest the Customer has in the goods.

(h) The Company may allocate any moneys received from the Customer towards debts, charges and expenses in any priority it determines to maintain a PMSI in the goods.

(i) The Customer waives its rights to receive a verification statement in respect of any financing statement or financing change statement registered by the Company.

(j) The Customer undertakes not to register a financing change statement or a change demand in respect of goods without the prior written consent of the Company.

6.5 If the Customer defaults in payment of moneys owing to the Company or in any of its obligations under these terms or under any other agreement, the Customer hereby irrevocably authorises the Company and/or its agents or employees to enter on and into the premises occupied by the Customer (or premises where the Company believes the goods are held) with or without notice and at the Customer’s expense to search for and remove any goods and to deal with the goods as its own without in any way being liable to the Customer or any person claiming through the Customer for any damage caused by such entry and search or any other claim.

6.6 If any of the goods recovered have been damaged or have sustained a loss (determined by future sale by the Company or otherwise) the Company shall be entitled to be compensated by the Customer for any loss of value or damage for such amount and such loss shall be recoverable from the Customer as a debt due.

6.7 If any of the goods supplied by the Company, or goods with which they are incorporated, have been resold before payment is made, the Customer shall hold the sale proceeds for and on account of the Company and to the Company’s order for the full payment and discharge of all moneys then or earlier owing by the Customer to the Company and the Customer shall ensure that such proceeds are not mingled with any moneys so that they shall at all times be identifiable as moneys belonging to the Company.

6.8 If any of the goods supplied by the Company are affixed or installed in a property such as to rend them fixtures of that property, the Customer agrees that upon demand being made by the Company at any time but before payment is made in full and cleared funds to the Company, the Customer shall execute a mortgage over the property in which the goods have become fixtures in favour of the Company (to be prepared by the Company’s solicitors at the Customer’s cost) for the amount equivalent to the unpaid balance of the price plus any interest owing and any additional extras owed by the Customer. The terms of such mortgage shall be collateral to the terms hereof and payment in full and cleared funds of the moneys owing to the Company hereunder shall operate as a full discharge of the mortgage.

 

7 INTELLECTUAL PROPERTY

7.1 All copyright and other intellectual property rights in all designs, products, goods and/or devices developed and/or any documentation prepared in the course of supplying goods and/or services to the Customer is and shall remain the absolute sole and exclusive property of the Company and/or the Company’s contractors or licensors (as the case may be) unless otherwise agreed in writing by the Company and the Customer.

7.2 Upon the Customer making payment in full of all moneys owing by the Customer to the Company, the Company grants to the Customer an irrevocable non-exclusive licence to use the intellectual property developed as a result of goods and/or services supplied by the Company for the Customer without further fee or royalty unless otherwise agreed in writing by the Company and the Customer. The term "use" means utilisation of all components that form part of the goods and/or services supplied to the Customer solely for the intended purposes.

 

8 WARRANTIES

8.1 Where the supply of goods and/or services by the Company is for business purposes, the provisions of the Customer Guarantees Act 1993 shall not apply and the Company can give no warranty that the goods and/or services are suitable for the purpose for which the Customer proposes to use them. All terms, conditions and warranties (whether express or implied) whether by the Company and/or its agents or employees, statute or otherwise (other than those mandatory warranties in the Fair Trading Act 1986 and Sale of Goods Act 1908 or other similar legislation) are expressly excluded.

8.2 The Customer acknowledges and agrees that in supplying its goods and/or services the Company may rely upon information and advice supplied to it by the Customer and/or the Customer’s agents or employees. The Company shall not be liable in any way for work undertaken by the Company based upon incorrect measurements and/or advice received and the Customer hereby indemnifies the Company from all liability that may arise from work undertaken by the Company based upon incorrect measurements and/or advice received.

8.3 The sole liability of the Company and the exclusive remedy for the Customer arising out of the performance of services or supply of goods or their use, whether arising under contract, tort (including negligence), strict liability or otherwise shall be the modification, adjustment, repair or replacement of the goods, re-performance of the service or a credit to the Customer’s account for the cost of the performance of the services or the supply of goods, such remedy to be at the Company’s absolute discretion.

8.4 The Customer indemnifies the Company against any prosecution, enforcement action or liability arising out of or connection with goods and/or services undertaken by the Company under these terms, including any loss, damages, penalties, fines or any other such costs whatsoever including but not limited to legal costs on a solicitor/client basis.

8.5 Notwithstanding clause 8.4, if the Company, its agents, directors, officers, staff or contractors are found to be liable to the Customer in any circumstances then the maximum combined amount such person shall be liable for to the Customer under any contract or contracts is an amount equal to the lesser of:

(a) Price of the goods and/or services supplied to the Customer; or

(b) The cost of replacement or repair of the goods and/or services supplied to the Customer; or

(c) The actual loss or damage suffered.

8.6 The Company will not be liable for:

(a) Any defect that arises after one calendar month from the date of delivery and/or performance of the services (as the case may be); or

(b) Any defect that is the result of repairs, alterations, modifications or attachments to the goods that are not authorised by the Company; or

(c) Improper installation, operation, use, handling and/or maintenance of the goods; or

(d) Fire, flood, lightning, earthquake and any other events over which the Company has no control; or

(e) Service work not performed by the Company; or

(f) Any defect that is the result of use of the goods in combination with hardware, equipment, software or services not supplied by the Company or the failure of any such hardware, equipment, software or services; or

(g) Any defect that is the result of the use of the goods other than in the operating environment recommended by the Company or other than in accordance with the Company’s reasonable directions; or

(h) Any defect that is the result of unusual physical stress, misuse, abuse, accident or neglect.

 

9 MISCELLANEOUS

9.1 The Company shall be entitled at any time during the continuance of the credit facility to request such additional security as the Company shall in its absolute discretion think fit and shall be entitled to withhold provision of goods, services and/or credit arrangements until such additional security shall be obtained.

9.2 The Customer must give the Company at least 14 days prior written notice of any proposed change in name of the Customer and/or any other change in the Customer’s details including but not limited to changes in address, facsimile number, trading name, registered name or where an individual, an individual’s name whether by marriage, deed pole or otherwise.

9.3 The Company reserves the right to amend or vary these terms at any time and such variations shall take effect from the date notice of such variation(s) is given to the Customer.

9.4 The Company has the right to terminate all credit facilities at any time on giving 3 working days notice in writing to the Customer. Such termination shall be without prejudice to any rights of the Company up to and including the date of termination against the Customer which may have accrued to the date of termination and such termination shall not release the Customer from any accounts and/or moneys owed as at the date of termination.

 

 

 

 

 

 

 

 

 

THE TERMS IN THIS SECTION ARE ONLY APPLICABLE IF THE CUSTOMER IS A CONSUMER AND NOT A BUSINESS

The Credit Contracts and Consumer Finance Act 2003 gives you a right for a short time after these terms have been disclosed to you to cancel the contract.

Statement of Right to Cancel

How to cancel

Time limits for cancellation

If the disclosure documents are sent to you by electronic means (for example, e-mail) you must give notice that you intend to cancel within 5 working days after the electronic communication is sent. If the documents are mailed to you, you must give notice within 7 working days after they are posted. Saturdays, Sundays, and national public holidays are not counted as working days.

What you must have to pay if you cancel

This statement only contains a summary of your rights and obligation in connection with the right to cancel.

If there is anything about your rights or obligations under the Credit Contracts and Consumer Finance Act 2003 that you do not understand, if there is a dispute about your rights, or if you think that the creditor is being unreasonable in any way, you should seek legal advice immediately.

Continuing Disclosure

No continuing disclosure statements will be supplied as neither interest charges nor credit fees are payable (unless you are in default under these terms).

The undersigned as Customer, or authorised person(s) on behalf of the Customer, acknowledge(s) that my/our signature(s) confirm(s) that I/we are duly authorised by the Customer to apply for credit and sign this document and I/we have read, understood and accepted these terms of the Company and I/we agree to be bound by such terms.

I/we, as the Customer, warrant that the information supplied by me/us is true and correct and that I/we have received a copy of these terms. I/we agree that in signing this form I am/we are giving a security interest (as such term is defined by the Personal Property Securities Act 1999) to the Company.

The Guarantor(s) who signed this form and who are detailed below further confirm(s) that in consideration of the Company supplying to the Customer goods and/or services from time to time, I/we hereby unconditionally and irrevocably guarantee as a continuing guarantee the due and punctual payment by the Customer of all moneys payable in respect of the goods and/or services and pursuant to these terms as and when the same shall be due and payable by the Customer. I/we agree that:

 

(i) No granting of time, waiver, indulgence, neglect to sue or other concession by the Company;

(ii) No alteration, modification or variation to these terms or any other contract in respect of the supply of goods; or

(iii) No other act, omission or event which but for this provision might operate to impair, discharge, abrogate, prejudice or otherwise affect my obligations under this guarantee or any of the rights, powers or remedies conferred by this guarantee or by law; shall impair, discharge, abrogate, prejudice or affect my/our liability as between the Company and me/us, I/we shall be deemed to be a principal debtor. I/we hereby unconditionally and irrevocably guarantee that I/we will be jointly and severally liable for all debts incurred now or hereafter by the Customer with the Company.

– If you cancel the contract the creditor can charge you the amount of any reasonable expenses the creditor had to pay in connection with the contract and its cancellation (including legal fees and fees for credit reports, etc).
– If the disclosure documents are handed to you directly you must give notice that you intend to cancel within three working days after you receive the documents.
- If you want to cancel this contract you must give written notice to the Company.