DEFINITIONS
“Furtex” shall mean Furtex Limited, or any agents or employees thereof.
“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 Furtex.
“Goods” shall mean:
all Goods supplied by Furtex to the Customer; and
all inventory of the Customer that is supplied by Furtex; and
all Goods supplied by Furtex and further identified in any invoice issued by Furtex to the Customer, which invoices are deemed to be incorporated into and form part of this agreement; and
all Goods that are marked as having been supplied by Furtex or that are stored by the Customer in a manner that enables them to be identified as having been supplied by Furtex; and
all of the Customer’s present and after-acquired Goods that Furtex has performed work on or to or in which goods or materials supplied or financed by Furtex have been attached or incorporated.
The above descriptions may overlap but each is independent of and does not limit the others.
“Goods” shall also mean all goods, products, services and advice provided by Furtex to the Customer and shall include without limitation the supply of floor rugs, hides and hide products, soft furnishings products, textiles, synthetic fur and pile fabrics, felt, fur skins and any other products and all charges for labour, hire charges, insurance charges, or any fee or charge associated with the supply of Goods by Furtex to the Customer.
“Price” shall mean the cost of the Goods as agreed between Furtex and the Customer and includes all disbursements e.g.S charges Furtex pay to others on the Customer's behalf subject to clause 4 of this contract.
ACCEPTANCE
Any instructions received by Furtex from the Customer for the supply of Goods shall constitute a binding contract and acceptance of the terms and conditions contained herein.
COLLECTION AND USE OF INFORMATION
The Customer authorises Furtex 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 provided by Furtex to any other party.
The Customer authorises Furtex to disclose any information obtained to any person for the purposes set out in clause 3.1.
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.
PRICE
Where no price is stated in writing or agreed to orally the Goods shall be deemed to be sold at the current amount as such Goods are sold by Furtex at the time of the contract.
The price may be increased by the amount of any reasonable increase in the cost of supply of the Goods that is beyond the control of Furtex between the date of the contract and delivery of the Goods.
PAYMENT
Payment for Goods shall be made in cash or unless agreed, payment in full on or before the 20th day of the month following the date of the invoice, or on receipt of delivery of Goods, whichever is the earlier (“the due date”).
Interest may be charged on any amount owing after the due date at the rate of 2.5% per month or part month.
Any expenses, disbursements and legal costs incurred by Furtex 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.
Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
A deposit may be required.
QUOTATION
Where a quotation is given by Furtex for Goods:
- Unless otherwise agreed the quotation shall be valid for thirty (30) days from the date of issue; and
- The quotation shall be exclusive of Goods tax unless specifically stated to the contrary;
- Furtex reserves the right to alter the quotation because of circumstances beyond its control.
- Where Goods are required in addition to the quotation the Customer agrees to pay for the additional cost of such Goods.
RISK
The Goods remain at Furtex’s risk until delivery to the Customer.
Delivery of Goods shall be deemed complete when Furtex gives possession of the Goods directly to the Customer or possession of the Goods is given to a carrier, courier, or other bailee for purposes of transmission to the Customer.
The time agreed for delivery shall not be an essential term of this contract unless the Customer gives written notice to Furtex making time of the essence.
AGENCY
The Customer authorises Furtex to contract either as principal or agent for the provision of Goods that are the matter of this contract.
Where Furtex enters into a contract of the type referred to in clause 8.1 it shall be read with and form part of this agreement and the Customer agrees to pay any amounts due under that contract.
TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999)
Title in any Goods supplied by Furtex passes to the Customer only when the Customer has made payment in full for all Goods provided by Furtex and of all other sums due to Furtex by the Customer on any account whatsoever. Until all sums due to Furtex by the Customer have been paid in full, Furtex has a security interest in all Goods.
If the Goods 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 shall remain with Furtex until the Customer has made payment for all Goods, and where those Goods are mixed with other property so as to be part of or a constituent of any new Goods, title to these new Goods shall deemed to be assigned to Furtex as security for the full satisfaction by the Customer of the full amount owing between Furtex and Customer.
The Customer gives irrevocable authority to Furtex to enter any premises occupied by the Customer or on which Goods are situated at any reasonable time after default by the Customer or before default if Furtex believes a default is likely and to remove and repossess any Goods and any other property to which Goods are attached or in which Goods are incorporated. Furtex 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. Furtex may either resell any repossessed Goods 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 credit the Customer’s account with the invoice value thereof less such sum as Furtex reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.
Where Goods are retained by Furtex pursuant to clause 9.3 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.
The following shall constitute defaults by the Customer:
- Non payment of any sum by the due date.
- The Customer intimates that it will not pay any sum by the due date.
- Any Goods are seized by any other creditor of the Customer or any other creditor intimates that it intends to seize Goods.
- Any Goods in the possession of the Customer are materially damaged while any sum due from the Customer to Furtex remains unpaid.
- 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.
- A Court judgment is entered against the Customer and remains unsatisfied for seven (7) days.
- Any material adverse change in the financial position of the Customer.
- Where a financing statement is registered pursuant to s.146 of the PPSA the Customer waives the right to receive notice under s.148 of the PPSA.
PAYMENT ALLOCATION
Furtex may in its discretion allocate any payment received from the Customer towards any invoice that Furtex 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 Furtex, payment shall be deemed to be allocated in such manner as preserves the maximum value of Furtex’s purchase money security interest in the Goods.
DISPUTES AND RETURN OF GOODS
No claim relating to the Goods will be considered unless made in writing within seven (7) days of delivery.
No Goods will be accepted for return without the prior consent of Furtex. A 15% restocking fee will apply to Goods accepted for return.
The Customer shall be deemed to have accepted the goods unless the Customer notifies Furtex otherwise. HOWEVER, no goods may be returned to Furtex where these goods have been processed, cut or their condition altered in any way.
If the goods are not accepted according to 11.3 of this contract the Customer shall pay for the delivery of the returned goods to Furtex whereby the Customer shall be entitled to a credit for the purchase price of any such goods.
LIABILITY
The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon Furtex 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 Furtex, Furtex’s 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.
Except as otherwise provided by clause 12.1 Furtex shall not be liable for:
Any loss or damage of any kind whatsoever, arising from the supply of Goods by Furtex to the Customer 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 provided by Furtex to the Customer; and
The Customer shall indemnify Furtex 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 Furtex or otherwise, brought by any person in connection with any matter, act, omission, or error by Furtex its agents or employees in connection with the Goods.
WARRANTY
Manufacturer’s warranty applies where applicable.
No representation, condition, warranty or premise expressed or implied by law or otherwise applies to the Goods except where goods are supplied or services provided pursuant to the Consumer Guarantees Act 1993 or except where expressly stated in this contract.
Furtex does not provide any warranty that the Goods are fit and suitable for the purpose for which they are required by the Customer and shall not be liable if they are not.
CONSUMER GUARANTEES ACT
The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Goods from Furtex for the purposes of a business in terms of section 2 and 43 of that Act.
PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES
If the Customer is a company or trust, the director(s) or trustee(s) signing this contract, in consideration for Furtex agreeing to supply Goods 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 Furtex the payment of any and all monies now or hereafter owed by the Customer to Furtex and indemnify Furtex 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.
CANCELLATION
Furtex shall, without any liability, and without any prejudice to any other right it has in law or equity, have the right by notice to suspend or cancel in whole or in part any contract for the supply of Goods to the Customer if the Customer fails to pay any money owing after the due date or the Customer commits an act of bankruptcy as defined in section 19 of the Insolvency Act 1967.
Any cancellation or suspension of this agreement shall not affect Furtex’s claim for money due at the time of cancellation or suspension or for damages for any breach of any terms of this contract or the Customer’s obligations to Furtex under this contract.
MISCELLANEOUS
Furtex shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
Failure by Furtex 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 Furtex has under this contract.
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.