TERMS OF TRADE FOR TOTAL BAKING INDUSTRIES
1.1 The Company will contract on these terms only and the Terms shall be deemed to be included in and govern each Contract. Receipt by the Company of an order from the Buyer (whether by verbal or written order or quotation acceptance) will be deemed to be acceptance by the Buyer of these Terms, notwithstanding anything that may be stated to the contrary in the Buyer’s enquiries or on the Buyer’s orders or application.
1.2 The terms contained in any quotation (where the Contract arises from a quotation by the Company), or the terms contained in the Company’s confirmation of order (where the Contract arises from an order by the Buyer), together with these Terms shall be the terms of the Contract. Without limiting any other provision of these Terms, the terms of each Contract shall exclusively govern the supply of Goods and Services, and all other terms, conditions, warranties, descriptions, representations, conditions as to fitness or suitability for any purpose, tolerance to any conditions, mechanicability or otherwise (whether of a like nature or not) and whether expressed or implied by law, trade, custom or otherwise are expressly excluded. In the case of any conflict between an order submitted by the Buyer and the Company’s confirmation of order and these Terms, the Company’s confirmation of order and these Terms shall prevail.
1.3 No agent or representative of the Company is authorised to make any representations, warranties, conditions or agreements not contained in any applicable Contract or expressly confirmed by the Company in writing, and the Company is not in any way bound by any such unauthorised statements, nor can any such statements be taken to form part of the Contract.
1.4 If any person has agreed to guarantee the Buyer’s obligations to the Company, the terms of the Guarantee shall apply as between the Guarantor(s) and the Company.
2.1 Where these Terms form part of a written quotation, unless stated otherwise, the quotation is open for acceptance for a period of 30 days from the date of quotation. The quotation may be withdrawn by the Company at any time before acceptance. Acceptance arises upon receipt by the Company of the Buyer’s written acceptance, whether by facsimile, email or otherwise, unless the Company agrees otherwise, which time shall be the date of the Contract.
3.1 Unless otherwise agreed in writing, the Goods and Services will be invoiced and sold at the Contract Price, and the Buyer shall pay the Contract Price in accordance with the Contract. The Contract Price is based upon rates and costs as at the date of the Contract relating to the cost of materials, transport, labour, customs duty, insurance and other rates and costs. The Contract Price shall be increased by the amount of any increase in the costs of any such items or any other factors including (without limitation) any change in the exchange rate affecting the cost of supply, production and/or delivery of the Goods and Services, due to circumstances beyond the control of the Company between the date of the Contract and the date of actual delivery and/or supply of the services to the Buyer.
3.2 Unless the Contract expressly provides otherwise, GST and any other taxes and duties assessed or levied in connection with the supply of the Goods and Services to the Buyer are not included in (and shall be payable in addition to) the Contract Price. Where the payment of such taxes or duties is the responsibility of the Company at law, the Contract Price shall be increased by the amount of such taxes or duties. When GST, sales or other taxes or duties are expressly included in any quotation given by the Company, any increase in the amount of such GST, sales or other taxes and duties between the date of quotation and the date of delivery and/or invoice of the Goods and Services shall be the responsibility of the Buyer and the Contract Price shall be increased accordingly.
4.1 Subject to any provision to the contrary in any Contract, or as otherwise agreed by the Company, payments due under any Contract shall be due on or before the 7 days of the invoice date, the date of delivery, supply and/or invoice of the Goods and Services (whichever occurs earliest).
4.2 The Company may require payment for Goods and/or Services supplied from time to time, to be paid by the Buyer to the Purchaser by way of direct debit authority. The Buyer will, upon request by the Company, provide a signed direct debit authority to the Company, together with any necessary information required by the Company to register the direct debit authority with the Buyer’s bank, and otherwise ensure the validity of the Buyer’s authority for initiating direct debit payments. The Company may withhold delivery of Goods or provision of Services pending receipt and registration of the Buyer’s direct debit authority.
4.3 Any additional payment due by the Buyer pursuant to any of the provisions of the Contract shall be added to and form part of the Contract Price, and shall be paid at the time or times provided for in the Contract or in these Terms.
4.4 If the Company deems the credit of the Buyer to be unsatisfactory, it may require security for payment and may suspend performance of its obligations under the Contract until the provision of security to the satisfaction of the Company. All costs and expenses of or incurred by the Company as a direct or indirect result of such suspension, and any recommencement, shall be payable by the Buyer upon demand.
4.5 The Buyer shall not be entitled to withhold payment or to make any deductions or set off from any Amount Owing without the prior written consent of the Company.
4.6 The Company may apply any payments received from or on behalf of the Buyer in the reduction of any Amounts Owing in such order and manner as the Company thinks fit (despite any direction to the contrary and whether before or after the occurrence of an Event of Default).
4.7 Interest at 10% per annum from due date of said invoice may be charged and shall be payable on any Amounts Owing from the date payment was due until the date payment is received by the Company, but without prejudice to the Company’s other rights in respect of non-payment or late payment.
4.8 The Buyer shall be liable to pay all expenses and legal costs of the Company (calculated as between solicitor and own client) in remedying any failure by the Buyer to make payment of any Amount Owing on the due date or any other breach by the Buyer of the Contract, such expenses and costs being calculated up to the date of payment by the Buyer and/or the remedying of the breach of the Contract by the Buyer.
5. DELIVERY OF THE GOODS
5.1 Delivery shall be made at the time and place indicated in the Contract. If the Contract does not specify delivery terms, delivery shall be made at the Company’s address on an “Ex Works” basis, in which case the Goods shall be delivered to the premises notified by the Company for collection by the Buyer. If the Buyer fails or refuses or indicates to the Company that it will fail or refuse to take or accept delivery, the Goods shall be deemed to have been delivered when the Company notifies the Buyer that they are available for collection from the premises notified by the Company, or when the Company was otherwise willing to deliver them.
5.2 The Company reserves the right to deliver the Goods by instalments and the Company shall be entitled to require that each instalment be regarded as a separate contract under the same provisions as the Contract. Should the Company fail to deliver, or make defective delivery of, one or more instalments, this shall not entitle the Buyer to repudiate or cancel the Contract.
5.3 Without prejudice to any other rights and remedies which it may have, the Company may charge storage, transportation and disposal expenses and may in addition recover from the Buyer any additional costs, charges and expenses incurred by it if the Buyer fails or refuses to take or accept delivery, or indicates to the Company that it will fail or refuse to take or accept delivery, at the time specified in the Contract or at any such other times as the Company is able to deliver the Goods.
5.4 The Buyer shall give to the Company reasonable notice of the dates and times at which and the quantities in which the Goods are to be delivered. The Company shall be entitled to make an additional charge of an amount to be determined by the Company for deliveries made before 7.30am or after 5.00pm on weekdays, before 7.30am or after 11am on Saturdays and at any time on Sundays and statutory holidays.
5.5 The Buyer shall provide suitable access to and a suitable area for unloading the Goods in all weather conditions. Damage to footpaths, kerbs, drains, verges or other property caused by any of the Company’s vehicles or sub contractors in the course of deliveries beyond the kerb line, shall be the Buyer’s responsibilities, and the Buyer shall indemnify, and hereby keep the Company indemnified, against all costs, expenses, claims, actions and liabilities whatsoever in connection therewith.
5.6 The Buyer shall at its own cost ensure that the Goods are unloaded immediately upon arrival of the Company’s delivery vehicle(s). In the case of unloading by mechanical means, the Company shall not be bound to dispatch its delivery vehicle(s) until it is satisfied that the equipment required to unload the Goods is on site and ready for operation. The Company shall not be responsible for any malfunction of, or any damage caused to, any such equipment in the course of unloading the Goods, and the Buyer shall indemnify the Company against all costs, expenses, claims, actions and liabilities whatsoever in connection therewith.
5.7 The Company shall be entitled to charge waiting time for delays by the Buyer in unloading the Goods by whatever means, and handling charges for any unloading work carried out by the Company. Such charges shall be at the Company’s current rate from time to time.
5.8 The Company will endeavour to have the Goods delivered on the agreed delivery dates, but will not be held liable for late delivery. Late delivery does not entitle the Buyer to cancel any order or part order of the Goods.
5.9 Any claim for Goods damaged in transit or during unloading or for alleged short delivery of Goods, must be noted on the delivery docket at the time of delivery and notified to the Company within five working days after the date of delivery time being of the essence.
5.10 The Buyer may reject non-conforming or defective Goods by lodging a claim with the Company within 14 days of receipt, quoting the packing slip numbers and delivery date, and the Company may, in its sole discretion, repair, replace or refund the purchase price of the Goods. No Goods are returnable after 14 days of delivery.
6. RISK AND TITLE
6.1 The risk of any loss, damage or deterioration of or to the Goods shall pass to the Buyer upon delivery in accordance with clause 5. Ownership of the Goods remains with the Company and does not pass to the Buyer until the Buyer:
(a) pays the Amount Owing in full and the Security Interest in the Goods is released and discharged; or
(b) re-sells the Goods pursuant to the authority granted by these Terms.
6.2 Receipt by the Company of any cheque or other bill of exchange or any promissory note shall not be deemed to be payment or conditional payment until the same has been honoured or cleared and until such time shall not prejudice or affect the rights, powers or remedies of the Company against the Buyer and/or the Goods.
6.3 While ownership of the Goods remains with the Company:
(a) the Buyer will hold the Goods as bailee for the Company;
(b) the Buyer shall not use the Goods as security or pledge or otherwise dispose of the Goods except as expressly permitted by these Terms;
(c) the Company may at any time terminate any Contract relating to the Goods and the bailment without notice to the Buyer and may thereupon take possession of the Goods;
(d) the Buyer must store the Goods separately and clearly identify them as belonging to the Company; and
(e) the Supplier may at any time terminate any Contract relating to the Goods and the bailment without notice to the Customer and may thereupon take possession of the Goods.
6.4 The Company may apply any payments received from or on behalf of the Buyer in reduction of all Amounts Owing in such order and manner as the Company thinks fit despite any direction to the contrary, and whether before or after the occurrence of an Event of Default in accordance with the provisions of any Contract or these Terms.
6.5 If the Buyer resells or uses any Goods before ownership of the Goods has passed to the Buyer, the proceeds of such sale or use shall be received and held by the Buyer (in whatever form) on trust for both the Buyer and the Company. The Company’s interest as beneficiary under that trust shall be that portion of the proceeds which corresponds to the Amount Owing.
The balance of the proceeds (if any) shall be the Buyer’s beneficial interest under that trust.
6.6 The Company may bring an action for the price of the Goods sold even where ownership of the Goods may not have passed to the Buyer.
7.1 If any time for delivery of the Goods and/or performance of the Services, or completion of the Contract or any part thereof by the Company, is stated in the Contract, such time shall be approximate only and shall not be deemed to be of the essence of the Contract.
7.2 The Company will endeavour to have the Goods delivered and/or the Services performed on or by the agreed delivery and/or performance dates, but will not be held liable for late delivery or performance. Late delivery or performance does not entitle the Buyer to cancel all or any part of the Contract.
7.3 Without limiting clause 17, the Company shall not be liable for failure to deliver or perform, or for any delay in delivery or performance where such failure or delay is occasioned by strike, combination of workmen lockout, difficulty in procuring components or materials, shortage of labour, lack of skilled labour, delays in transit, failure or delay to the Buyer in performing any of its obligations hereunder, failure or delays by suppliers or subcontractors, legislative Government or other prohibitions or restraints, fire, flood, hostilities, commotions or other causes whatsoever (whether similar in nature or not to the foregoing) beyond the Company’s reasonable control.
7.4 If the manufacture, supply or delivery of the Goods and/or Services is delayed by reason of or as a result of any act, omission, default or request by or on behalf of the Buyer, the Company may without prejudice to its other rights and remedies require payment by the Buyer of such portion of the Contract Price as represents the extent to which the Company has performed the Contract or carried out work required by the Contract up to the date such payment is required, together with any expenses or additional costs incurred by the Company as a result of such delay continuing beyond a reasonable time.
8. PERSONAL PROPERTY SECURITIES ACT 1999 (the PPSA)
8.1 The Buyer acknowledges and agrees that, pursuant to the PPSA:
(a) these Terms create, in favour of the Company, a purchase money security interest in all present and after acquired personal property, being Goods which are or become the subject of a Contract, and their proceeds, to secure the payment by the Buyer of the Amount Owing;
(b) the Goods constitute collateral until payment of all Amounts Owing have been made to the Company for the Goods and the Security Interest is either discharged by operation of law or released by the Company; and
(c) the Security Interest attaches to the collateral when the Goods are delivered to or received by the Buyer pursuant to clause 5; and
(d) the Company may forthwith register a financing statement in respect of the Security Interest.
8.2 The Buyer further acknowledges and agrees that, pursuant to the PPSA:
(a) these Terms create, in favour of the Company, a security interest in all of the Buyer’s present and after acquired personal property, as security for all Amounts Owing in respect of Services; and
(b) the Company may forthwith register a financing statement in respect of the Security Interest created by sub-paragraph (a) of this clause.
8.3 The Buyer undertakes:
(a) to promptly do all things, sign all documents and/or provide any information which the Company may reasonably require to enable the Company to perfect and maintain the perfection of its Security Interests;
(b) to give the Company not less than 14 days’ prior written notice of any proposed change of the Buyer’s name and/or any of the Buyer’s details (including, but not limited to, changes in the Buyer’s address, facsimile number, trading name or business practice);
(c) not to allow any non-purchase money security interest to arise in respect of the Goods unless the Company has perfected the Security Interest created by clause 8.1(a) prior to the Buyer taking delivery of the Goods or alternatively, the Buyer having first provided priority to the Company in respect of the Security Interest created by clause 8.1(a) over the non-purchase money security interest; and
(d) not to permit the Goods to become accessions or commingled with other goods or mass.
8.4 The Buyer waives its right to receive a verification statement in respect of any financing statement relating to the Security Interests pursuant to section 148 of the PPSA.
8.5 To the extent permitted by law, the Buyer and the Company contract out of Part 9 of the PPSA in that:
(a) the rights and obligations contained in sections 114(1)(a), 125, 129, 132, 133 and 134 of the PPSA do not apply between the Buyer and the Company; and
(b) the Buyer waives its rights contained in sections 121 and 131 of the PPSA; and
(c) the Buyer’s rights referred to in section 107(2)(c), (d), (h) and (i) of the PPSA do not apply between the Company and the Buyer.
8.6 The Purchaser agrees that the Security Interests have the same priority in relation to all amounts comprising and corresponding to the Amounts Owing.
9.1 The Company warrants that it will repair or make good any defects in materials or workmanship (the Defective Goods) arising within any period specified in the Contract or, where no time is specified, within 14 days from the date of delivery of the Goods and completion of the performance of any corresponding Services. No claim shall be accepted under such warranty unless written notice of the claim is received by the Company as soon as reasonably possible after the defect is discovered, nor shall any claim be accepted:
(a) if any attempt to repair the Defective Goods is made by any person or persons not authorised by the Company to effect such repairs; or
(b) if the Defective Goods have been modified or incorrectly stored, maintained, installed or operated. This includes negligence.
9.2 Should the Company elect to repair any of the Defective Goods, such repair shall be effected at such place as the Company may specify, and the Buyer shall be responsible for shipment of the Defective Goods to the place or places specified.
9.3 In the event that the Goods and Services or any component or components thereof are not manufactured or provided by the Company, then the foregoing warranty shall not apply to such Goods or Services, component or components that are not manufactured or provided by the Company, and no warranties are given by the Company in respect of such Goods and Services, component or components. In the case where the manufacturer or supplier of any such Goods and Services, component or components provides any warranty, then the Company shall use reasonable commercial endeavours to make such warranty available to the Buyer. The Buyer acknowledges that all such warranties are published by the relevant manufacturer from time to time and provided to the Company, and copies of such warranties are available to the Buyer at any time upon request.
9.4 If the Company fails to perform its warranty obligations under clause 9.1 hereof the Company’s liability for such failure shall be limited to damages which shall be subject to the limitations contained on clause 12 hereof.
9.5 Goods may be covered by manufactures warranties for 12 months for parts only. Labour shall be at the buyers expense.
10. DEFAULT, PAYMENT AND PAYMENT VALIDITY
10.1 If an Event of Default occurs:
(a) the Company may suspend or terminate any Contract;
(b) all Amounts Owing shall immediately become due and payable notwithstanding that the due date has not arisen;
(c) the Company may enforce the Security Interest;
(d) the Company may (without the consent of the Buyer) appoint a receiver in respect of any Goods and any receiver is authorised to do anything referred to in these Terms and otherwise to exercise all rights and powers conferred on a receiver by law; and
(e) the Company reserves the right to claim compensation for all costs, interests and damages incurred by the Company.
10.2 The Buyer agrees that, at any time after an Event of Default has occurred and is continuing, or at any time if Goods are at risk, the Company may:
(a) take possession of any Goods; and/or
(b) sell or otherwise dispose of any Goods,
in each case in such manner and generally on such terms and conditions as it thinks fit, and, in each case, otherwise do anything the Buyer could do in relation to those Goods. The Company and the Buyer agree that section 109(1) of the PPSA is contracted out of in respect of particular Goods if, and only for so long as, the Company is not the secured party with priority over all other secured parties in respect of those Goods. As the Buyer’s agent, the Company (and its employees and agents) may, without prior notice, enter any land or premises where the Goods are kept in order to take possession of and/or remove them, without being responsible for any damage caused in doing so. The Buyer agrees to procure all other rights (including consents) necessary to enable, and to indemnify the Company (and its employees and agents) against any liability incurred in connection with, such entry, taking of possession and removal. The Company may resell any of the Goods and apply the proceeds of sale in reduction of the Amount Owing.
10.3 All costs, claims, proceedings, damages and expenses of or incurred by the Company as a result of any such action together with transportation and storage charges and legal costs (as between solicitor and own client) shall be payable by the Buyer upon demand. Any suspension of the Contract by the Company shall not prevent it from terminating the Contract during the period of suspension.
10.4 The Buyer acknowledges that (prior to the occurrence of any Event of Default) the Company continues to supply the Buyer on the condition that all payments received by the Company from the Buyer are valid and are made in the ordinary course of the Buyer’s business.
10.5 The Buyer further acknowledges that the Company receives all payments in the ordinary course of the Buyer’s business, in good faith and in the reasonably held belief as to the validity of those payments unless and until the Buyer gives notice in writing to the Company:
(a) that the Buyer is unable to pay its debts; and
(b) that the Buyer’s intention or purpose in making such payment is to enable the Company to receive more towards the satisfaction of its debt than it would otherwise have received or have been likely to have received in any liquidation of the Buyer,
and until receipt of such notice all payments received from the Buyer are deemed to be made in the ordinary course of the Buyer’s business.
10.5 The Buyer acknowledges that payments made with a credit card will incur a credit card payment fee of 2.5% minimum.
11.1 Except for such warranties which cannot be excluded by virtue of the Consumer Guarantees Act 1993 or any amending or substituting legislation, all warranties, descriptions, representations or conditions whether implied by law, trade, custom or otherwise are, and all liability of the Company, whether in tort (including negligence) contract or otherwise, is expressly excluded to the fullest extent permitted by law.
11.2 The warranties and guarantees implied by the Consumer Guarantees Act 1993 (CGA) or any amending or substituting legislation, all warranties, descriptions, representations or conditions whether implied by law, trade, custom or otherwise and all liability of the Company, whether in tort (including negligence) contract or otherwise, are expressly excluded in relation to the Goods and Services purchased or supplied for the purposes of a business.
11.3 The Buyer agrees to the following terms:
(a) The liability of the Company for any loss, damage or injury arising directly or indirectly from any defect in or non-compliance of any of the Goods and Services or any other breach of the Company’s obligations (whether in contract, tort, in equity, under statute or otherwise) shall be limited, and shall not in any case exceed, the lowest of, the Contract Price paid for the Goods and/or Services, the cost of repairing or replacing any Defective Goods and/or the actual loss or damage suffered by the Buyer.
(b) The Company will have no liability for any loss of profit, reputational damage, consequential, indirect or special damage, loss or injury of any kind suffered by the Buyer or any other person arising from the supply of the Goods and/or Services.
11.4 While the Company will make every effort to ensure the accuracy of any advice, recommendation, information, assistance or service provided by the Company in relation to the Goods manufactured or the Goods and Services supplied by the Company on their use or application, the Company does not accept liability or responsibility in respect thereof.
11.5 The Buyer indemnifies the Company upon demand against any and all losses, costs, expenses or other liabilities suffered or incurred by the Company:
(a) as a result of any breach by the Buyer of the terms of the Contract or any other agreement relating to the supply of the Goods and/or Services; and
(b) arising under the CGA as a result of any breach by the Buyer of any term of the Contract or any other agreement relating to the supply of Goods and/or Services.
11.6 The parties acknowledge and agree that:
(a) for the purposes of section 43 of the CGA and section 5D of the Fair Trading Act 1986 (FTA), the Goods and Services are being supplied and acquired in trade and the parties are in trade;
(b) the Buyer and Company contract out of the provisions of the CGA and sections 9, 12A, 13 and 14(1) of the FTA; and
(c) it is fair and reasonable that they are bound by this clause.
11.7 Nothing in these Terms is intended to have the effect of contracting out of the provisions of the CGA or the FTA except to the extent permitted by either of those Acts, and these Terms may be modified or read down to the extent necessary to give effect to that intention.
12. ACCOUNT APPLICATION PROCESS & USE OF INFORMATION
12.1 The Buyer acknowledges that the application to open a credit account, of which the Terms and Guarantee forms part, must be approved by the Company. In order to enable the Company to assess such an application, the Buyer and each Guarantor specifically agrees to our credit control company and the Company collecting information about the Buyer and the Guarantor to determine whether to open a credit account in the name of the Buyer, and thereafter from time to time, to determine whether to continue offering such credit to the Buyer.
12.2 Information collected and held about the Buyer and each Guarantor may be used from time to time for any credit assessment and control and debt recovery purposes of the Company through its online application process, to register any Security Interest, and for marketing and promotional purposes.
12.3 The Buyer irrevocably authorises the Company to receive, use and disclose information about the Buyer from the Buyer or any other person to assist credit approval, debt collecting, direct marketing activities and management of any credit facility granted to the Buyer.
12.4 The Buyer must notify the Company of any change in circumstances that may affect the accuracy of the information provided by the Buyer to the Company.
12.5 If the Buyer is an individual (i.e. natural person), the Buyer is entitled under the Privacy Act 1993 to access and request the correction of any personal information which the Company holds about the Buyer.
13.1 Copyright in all drawings, specifications and other technical information provided by the Company in connection with the Contract is vested in the Company.
13.2 Where the Company has followed a design or instruction furnished or given by the Buyer, the Buyer shall indemnify and hereby indemnifies the Company against all loss, damages, claims, penalties, costs and expenses to the Company or in respect of which the Company may become liable to any other person, firm or Company arising from the Company following such a design or instruction infringing any patent, trademark, copyright, registered design or breaching any statutory provision or any common law or equitable right.
14. DIES, JIGS AND TOOLS
14.1 Where the Buyer supplies a die, jig, tool or any other item used in the manufacturing process of the Goods and Services, the Company shall not be liable for any loss or damage of the dies, jigs, tools or material supplied by the Buyer to the Company for the purpose of fulfilling any contract.
14.2 Dies, jigs and tools which are not supplied by the Buyer remain the property of the Company, whether they have been charged for in full or part, and the Company shall be entitled to retain or destroy such dies, jigs and tools at its discretion.
15. DIMENSION AND SPECIFICATIONS
15.1 Dimensions and specifications contained or referred to in the Contract or in any catalogue or other publication maintained or issued by the Company are estimates only. Unless otherwise expressly agreed in writing, it is not a condition of the Contract that the Goods will correspond precisely with such dimensions and specifications and customary tolerances or in the absence of customary tolerances, reasonable tolerances shall be allowed.
16.1 The Company in its discretion may accept the Goods or any part thereof, returned by the Buyer but shall not be bound to make any cash refunds in respect thereof. The Company shall be entitled to make a handling charge for returns of such amounts as the Company in its discretion determines, and such charge may be deducted from the cash or amount of the credit to which the Buyer may be entitled in respect of any returned Goods.
17. FORCE MAJEURE
17.1 Notwithstanding any other provision of these Terms, non-performance by either the Company or the Buyer of their respective obligations (other than to pay money) under a given Contract may be excused, without liability for non-performance, during the time and to the extent that such a performance is prevented, wholly or substantially by Force Majeure, subject to the party claiming the benefit giving written notice to the other specifying the cause, extent of its inability to perform, and likely duration of such non-performance, and taking all reasonable steps within its power or control to remedy or abate the Force Majeure. Performance of any obligation affected by Force Majeure shall resume as soon as reasonably practicable after the termination or abatement of the relative event. If the Force Majeure continues for more than three months following the date the affected party notifies the other of the Force Majeure, either party may terminate any Contract which is affected by the Force Majeure.
18.1 All the original rights, powers, exemptions and remedies of the Company shall remain in force notwithstanding any neglect, forbearance or delay in the enforcement thereof. The Company shall not be deemed to have waived any condition unless such waiver shall be in writing under the signature of the Company or an authorised officer thereof and any such waiver, unless the contrary shall be expressly stated shall apply to and operate only in a particular transaction, dealing or matter.
18.2 The Buyer may not assign all or any of its rights or obligations under the Contract without the prior written consent of the Company.
18.3 The Company is entitled at any time to assign to any other person all or part of any debt owing by the Buyer to the Company.
18.4 These Terms and each Contract shall be governed by and construed in accordance with New Zealand law, and the parties submit to the non-exclusive jurisdiction of New Zealand courts.
18.5 Where any provision of these Terms is rendered void, unenforceable or otherwise ineffective by operation of law, that shall not effect the enforceability or effectiveness of any other provisions of these Terms.
18.6 If the Buyer is a trust, then the trustees of that trust will be liable to the Company in their personal capacity unless their liability as (if applicable) professional trustees has been limited by written agreement with the Company.
18.7 If the Buyer is a partnership, then the partners of the partnership will be personally liable under the Terms of the Contract.
19.1 These Terms are entered into on behalf of and are intended to bind and ensure to the benefit of the Company and the Company’s successors and assigns.
19.2 In these Terms, in addition to any terms specifically defined herein:
Amount Owing means, at any time, all or any part of the Contract Price which remains unpaid, and includes any other sums due under any relevant Contract, and/or which the Company is otherwise entitled to charge to the Buyer under the Contract, and includes any other amounts which are otherwise owing by the Buyer to the Company (in whatever capacity).
Buyer means the person, firm, trust, partnership or company buying the Goods and/or Services from the Company;
Company means Total Baking Industries Limited and any related company as defined in the Companies Act 1993 and any amending or substituting legislation;
Contract means each contract formed between the Company and the Buyer from time to time for the purchase of Goods and/or the supply of Services, of which these Terms form part;
Contract Price means the price of the Goods and/or Services as agreed between the Company and the Buyer, subject to any variation in accordance with the provisions of the Contract or these Terms;
Event of Default means an event where:
(a) any Goods are seized by a third party or become subject to a prior-ranking security interest granted to or created in favour of any third party;
(b) the Buyer fails to comply with any Contract or any other agreement with the Company relating to the sale, purchase or supply of Goods or Services generally; or
(c) the Buyer enters into any composition or arrangement with its creditors;
(d) the Buyer is subject to any event which is in the nature of dissolution, winding up, bankruptcy, liquidation, insolvency or receivership, or which generally precedes such an event; or
(e) an event occurs or information becomes known to the Company which, in the Company’s opinion, might materially affect the Buyer’s creditworthiness, the value of the Goods the subject of the Security Interest, or the Buyer’s ability or willingness to comply with its obligations under any Contract or any other agreement with the Company relating to the sale, purchase or supply of Goods generally.
Force Majeure means any event, whether natural or derived from human action or otherwise, including any Government entity, requirement, restriction or failure to act, or any unavoidable accident or other similar cause beyond the reasonable control of the party claiming the benefit of clause 17, which that party is unable to overcome by the exercise of reasonable diligence and at reasonable cost; but excluding any event which the party affected could have prevented or overcome by exercising a standard reasonable care, or lack of funds for any reason.
Goods means all goods purchased by the Buyer from the Company which are the subject of a Contract;
Guarantee means the personal guarantee terms set out in the Company’s online account application process, or as otherwise provided to and accepted by a Guarantor;
Guarantor means each person who has agreed to provide the Guarantee in favour of the Company, either pursuant to the Company’s online account application process or pursuant to any relevant terms of the Contract;
Person means a corporation, association, firm, trust, company, partnership or individual;
PPSA means the Personal Property Securities Act 1999;
Security Interest means each security interest created under the PPSA evidenced by and recorded in these Terms;
Services means any services supplied by the Company to the Buyer pursuant to the terms of the Contract from time to time;
Terms means the Company’s terms and conditions of sale as set out in this document, and as may be varied in writing from time to time.
19.3 Headings are used as a matter of convenience only and shall not affect the interpretation of these Terms.
19.4 References to the PPSA, the CGA, the FTA, the Privacy Act 1993 and any other relevant statutes include that legislation as it is from time to time amended, re-enacted or substituted, and includes any statutory instruments, regulations and orders issued under such legislation.
19.5 Unless the context otherwise requires, words and phrases in these Terms have the corresponding meanings given to them in, or by virtue of, the PPSA.
Total Baking Industries – Terms of Personal Guarantee
1. PERSONAL GUARANTEE
1.1 Personal Guarantee: The Guarantor unconditionally and irrevocably guarantees to the Company the due and punctual payment of all monies (including interest) which the Buyer is liable to pay the Company for Goods and Services from time to time.
1.2 Payment: The Guarantor shall be liable to the Company on demand for due payment by the Buyer for all the Goods supplied from time to time by the Company to the Buyer, together with all additional costs, claims and charges referred to in the Terms.
1.3 Recovery: The Company will be entitled to recover from the Guarantor any monies owed to it by the Buyer without the Company first taking any proceedings against or making demands upon the Buyer.
1.4 Continuing Guarantee: This guarantee is a continuing guarantee to the Company for all monies owing from time to time by the Buyer to the Company in respect of the Goods and Services supplied to the Buyer by the Company, and shall remain in full force and effect until all Amounts Owing have been paid in full.
1.5 Liability not prejudiced: The liability of each of the Guarantor under this guarantee shall not be abrogated, prejudiced or affected by any of the following:
(a) any material alteration(s) to the Contract;
(b) any change in circumstance in either the Buyer or the Guarantor (including for example (and without limitation), a change of shareholding of the Buyer or the Guarantor (if applicable), a change in directorship of the Buyer or the Guarantor (if applicable), or death of the relevant party);
(c) the granting of time, credit or any other indulgence to the Buyer, or by any compounding, compromise, release, abandonment, waiver or variation of any of the rights of the Company against the Buyer, or by anything done or omitted or neglected to be done by the Buyer in exercise of the authorities, powers and discretions vested in this Guarantee and the Terms, or by any other matter, dealing or thing which, but for this provision, might operate to abrogate, prejudice or affect the Guarantee;.
(d) the liquidation, insolvency or winding up of the Buyer or any Guarantor (including any corporate guarantor);
(e) any security held or taken by or on behalf of the Company being void, defective or unenforceable on any ground whatsoever; or
(f) any other act, event or omission which, but for this clause 1.5, might operate to discharge, impair or otherwise affect the obligations of any Guarantor or any of the rights, powers or remedies conferred upon the Company by the Guarantee and/or the Terms, or by law.
1.6 Right to mortgage: The Guarantor agrees that the Company shall have the right to complete and have registered a mortgage over any real or personal property owned by the Guarantor to secure monies owed by the Buyer or the Guarantor, and the Company shall also have the right to register a caveat against any real property pursuant to this clause 1.6, and the Guarantor hereby irrevocably appoints the Company as the Guarantor’s attorney for the purpose of executing and perfecting such a mortgage.
1.7 Company’s discretion: The Company may determine from time to time whether it shall enforce or refrain from enforcing the Guarantee or any other guarantee, and may from time to time make any arrangement or compromise with the Buyer or the Guarantor(s) which the Company may think expedient.
1.8 No subrogation: Until all Amounts Owing have been fully paid or satisfied and the Company is of the opinion that payment of the monies owed will not be set aside under any insolvency provision, the Guarantor will not:
(a) be entitled on any grounds whatsoever to be subrogated to the position of the Company or to claim the benefit of any security now or in the future held by the Company for payment of any monies owed to the Company; or
(b) exercise any rights (including rights of set-off) or claim any amounts by way of contribution or indemnity from any other surety and/or the Buyer.
1.9 Reinstatement: If any payment made to the Company by or on behalf of the Buyer is avoided by law, such payment shall be deemed not to have discharged or affected the liability of the Guarantor under this Guarantee and, in that event the Company and the Guarantor shall be restored to the position in which each would have been and be entitled to exercise all the rights which each would have had if such payment had not been made.
1.10 Joint and several liability: In the event of there being more than one Guarantor, then the obligations of each such Guarantor shall be joint and several.
1.11 Principal debtor: Although as between the Buyer and the Guarantor, the liability of the Guarantor to the Buyer may be that of surety only, nevertheless as between the Guarantor and the Company, the Guarantor shall be deemed to be a principal debtor in respect of all Amounts Owing and such liability shall not be affected or diminished by any of the matters referred to above or by any other act, indulgence or omission which but for this Guarantee would have operated to release the Guarantor wholly or partly from liability under this Guarantee to the Company.
1.12 No competition: The Guarantor will not compete with the Company or enforce any right in law that would affect payment of any Amounts Owing to the Company by the Buyer or the Guarantor while there are any Amounts Owing.
1.13 Waiver of rights: To the fullest extent permitted by the law, the Guarantor hereby waives such of the rights of the Guarantor as surety or indemnifier (legal, equitable, statutory or otherwise) which may at any time be inconsistent with any of the provisions of this Guarantee.
1.14 Indemnity: If the whole or any part of any Amounts Owing are or may be for any reason irrecoverable from or enforceable against the Buyer and all or part of such moneys and obligations are not recoverable from or enforceable against the Guarantor(s) by the Company by virtue of this Guarantee, then and in each such case:
(a) the Guarantor as a separate, continuing and additional liability under this Guarantee, agrees to indemnify the Company in respect of such moneys and obligations and against all losses, damages, costs, charges, liabilities and expenses which the Company may at any time suffer or incur because of a failure by the Buyer to perform its obligations under this Guarantee;
(b) the Guarantor, as a principal debtor, agrees to pay the Company when demanded a sum equal to the amount of such moneys; and
(c) for the purpose of the indemnity contained in this clause above, the Guarantee shall be construed as if such moneys were recoverable.
1.15 Costs: The Guarantor agrees to indemnify the Company for all costs and expenses (including legal expenses) properly and reasonably incurred by the Company in or in connection with the preservation and/or enforcement of the Company’s rights under the Guarantee, and in suing for or attempting to sue for or recovering any sum due to the Company hereunder.
1.16 Defined terms: Terms defined by the Terms (denoted by capitalisation) shall have the same meaning where used in this Guarantee.
2. PRIVACY STATEMENT
2.1 Information collection: The Guarantor acknowledges that the application to open a credit account, of which this Guarantee forms part, must be approved by the Company. In order to enable the Company to assess such an application, the Guarantor specifically agrees to the Company and its agents collecting information about the Buyer and the Guarantor to determine whether to open a credit account in the name of the Buyer, and thereafter from time to time, to determine whether to continue offering such credit to the Buyer.
2.2 Use of information: Information collected and held about the Buyer and the Guarantor may be used from time to time for any credit assessment and control and debt recovery purposes of the Company through its online account application process, to register any Security Interest, and for marketing and promotional purposes.
2.3 Approval of credit account: The Guarantor specifically agrees that any credit information of the Guarantor may be disclosed to any credit reporting agency and any debt collection agency for credit assessment and control and debt recovery. The Guarantor also agrees that any credit reporting agency is authorised to provide to the Company any credit information file held by it in relation to the Guarantor, and to disclose any personal information contained therein.
2.4 Privacy Act 1993: Under the Privacy Act 1993, individuals have rights of access to, and correction of, their personal information.
1.1 In consideration of the Supplier providing credit and goods and/or services to the Business Customer or agreeing for a period of one day not to sue the Business Customer for moneys owed to the Supplier, the Guarantor and any other director(s), partner(s), trustee(s) and/or any other person who provides a similar guarantee to this guarantee hereby jointly and severally guarantees the due and prompt payment by the Business Customer to the Supplier (‘Guarantee’), in the manner and at the times agreed upon between the Supplier and the Business Customer, or in the absence of any such agreement then upon demand, of all moneys which are owing now or in the future to the Supplier by the Business Customer, in relation to the goods, services or credit given by the Supplier, or which may otherwise become payable by the Business Customer to the Supplier and including costs which are set out in clause 1.3 of this Guarantee.
1.2 The Guarantor’s liability under this Application is as a principal debtor also and not solely as a surety.
1.3 The Guarantor agrees that the Guarantee is a continuing guarantee and will operate until either full payment of all amounts owing by the Business Customer to the Supplier (including costs and interest) or a written discharge is given despite any:
a. material alteration to the agreement in relation to the provision of credit, goods or services by the Supplier to the Business Customer (‘Agreement’);
b. release of the Business Customer from any debt or liability under the Agreement;
c. change in circumstance in either the Business Customer or the Guarantor (including for example, and without limitation, a change of shareholding, change in directorship, death, or insolvency);
d. release of a co-guarantor(s);
e. prejudicing of any securities held by the Supplier in respect of the Business Customer; or
f. other action which at law would have the consequence of releasing the Guarantor.
1.4 The Guarantor agrees that:
a. the Guarantee shall bind the Guarantor’s respective personal representatives;
b. if any amounts paid by the Guarantor are clawed-back for any reason, the parties will then be restored to the position as if that payment was never made; and
c. while any amounts under the Agreement are owing, or may be owing, the Guarantor will not compete with the Supplier or enforce any right in law that would affect payment to the Supplier by the Business Customer or a Guarantor (including but not limited to rights of subrogation and contribution).
2. Privacy Statement
2.1 Our credit control company (‘our credit control company’) and the Supplier are collecting information about the Business Customer and the Guarantor to determine whether to open a credit account in the name of the Business Customer and thereafter from time to time to determine whether or not to continue offering credit to the Business Customer. The Business Customer may not be able to open a credit account if all the requested information is not provided.
2.2 Information collected and held about the Business Customer and the Guarantor may be used from time to time for credit assessment and control and debt recovery purposes of the Supplier and other businesses that use the our credit control company platform for credit applications (‘Other our credit control company Users’), to register any security interest granted to the Supplier or Other our credit control company Users, for marketing and promotional purposes and generally to do business with the Supplier, our credit control company and Other our credit control company Users.
2.3 Information (including default information) may from time to time be disclosed to, and collected from, trade references, credit reporting agencies (such as Equifax New Zealand Information Services and Solutions Limited and Total Risk Management Limited), debt collection agencies and related companies of the Supplier (“Group”) for credit assessment and control and debt recovery.
2.4 Information disclosed to credit reporting agencies (including default information) will be held by each agency on its system, accessed by the customers of the credit reporting database and used to provide its credit reporting services (including the maintenance of credit information files and supplying the information to other customers of the relevant credit reporting agency).
2.5 Under the Privacy Act 1993, individuals have rights of access to, and correction of, their personal information.
3.1 The Guarantor confirms and acknowledges that:
a. no information has been withheld which the Supplier or our credit control company should be aware of in considering this application for credit;
b. the guarantee in clause 1 above has been read, understood and agreed by the Guarantor;
c. the Supplier and our credit control company may use subcontractors to perform their rights and obligations including with respect to the collection and use of information;
d. he or she has read and agrees to the privacy statement in clause 2 above and authorises the Supplier and our credit control company to:
• collect information about the Guarantor and Business Customer from any person, including trade references, other third parties that our credit control company or the Supplier consider relevant as a result of such trade references and credit checking processes, credit reporting agencies, debt collection agencies and other companies in the Group for any of the purposes set out in the privacy statement above and for such entities to provide the Supplier and our credit control company with the information it may require;
• disclose information between them and to any person, including trade references, credit reporting agencies, debt collection agencies and other companies in the Group for any of the purposes set out in the privacy statement above and for such entities to collect information from the Supplier and our credit control company; and
• release to any person any information to enable the Supplier to sell or assign to any person any obligation the Business Customer may have to the Supplier; and
e. it consents to receive notices given pursuant to this Guarantee and other communications from the Supplier and/or our credit control company electronically.
USE OF THE ORDERING PLATFORM
If the website is used (including for online ordering), you are responsible for maintaining the confidentiality of your personal details, password and payment details. You agree to accept full responsibility for all your activities on our website and online ordering.
If you order online we may send you an email or SMS confirming the details of your order. The confirmation email or SMS will not constitute a tax invoice. The Total Baking Industries online ordering system must only be used by persons over the age of eighteen (18) years, or otherwise under the supervision of an adult or guardian. Total Baking Industries reserves the right to refuse service, terminate your access to the website or online ordering, remove or edit any content or cancel your order/s in its sole discretion and without prior notice to you.
In making the Total Baking Industries online ordering system (website and applications) available for use, Total Baking Industries merely acts as an agent of sub-franchisee stores from which the products or services will be provided (as selected by you or determined based on proximity to the delivery address) does not (except where you order from a Total Baking Industries corporate store) provide you with any goods or services makes no warranties or representations regarding the goods and services to be provided (including availability and delivery)
Total Baking Industries does not guarantee that the website or online ordering system will be free from viruses or other harmful components and you agree to hold harmless Total Baking Industries from any claim, judgement, loss, expense, liability from any viruses or harm suffered by you as a result of using the website, applications or online ordering and reserves the right to alter the agreed price if an incorrect price was caused by a software fault, error or malicious attack.
In using Total Baking Industries online ordering system (whether via the website or an application) you acknowledge that all orders are treated as an express intention to purchase the nominated goods or services for the agreed online prices acknowledge that you contract with the individual store from which you order and not Total Baking Industries except where you order from a Total Baking Industries owned store) and therefore you have no claim, recourse or action against Total Baking Industries whatsoever (except where you order from a Total Baking Industries owned store) and indemnify Total Baking Industries from all claims, losses, judgement, liability and damage relating to a failure of the online ordering system.
Deliveries will be left at your door if you are not home or at your office or other nominated address as standard policy unless you inform us otherwise. Deliveries will be made by our courier or freight forwarder partners. Any Damage in transit must be notified upon receipt of goods and Total Baking must be notified immediately to process a valid claim. Under the carriage of goods act all items are covered for damage up to a value of NZD$2000 domestically. It is the purchases responsibility to arrange their own marine transit insurance for any items not covered by the standard Carriage of Goods Act 1979 in New Zealand. Any purchase made that is not covered by the Carriage of Goods Act 1979 is at the sole responsibility of the purchaser to arrange insurance damage cover.
Please be advised that a credit card surcharge of 2.5% applies to all visa and mastercard transactions. If you wish to be invoiced and pay by direct debit please send us your order to email@example.com and we can organise this of you.
You agree to defend, indemnify and hold harmless Total Baking Industries, the Master Franchisor and related corporations, affiliates, and the officers, directors, employees and agents of these entities, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to legal fees) arising from or in connection with (i) your use of and access to the website (including any online ordering and applications) (ii) your violation of any term of these Terms and Conditions of Use and (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right (iv) any claim that one of your User Submissions caused damage to a third party and (v) use of the User Submissions by Total Baking Industries.
ABILITY TO ACCEPT TERMS and CONDITIONS OF USE
You affirm that you are either more than 18 years of age, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms and Conditions of Use, and to abide by and comply with these Terms and Conditions of Use.