1.1 ďSellerĒ means Car Colors Of North Shore Limited, its successors and assigns or any person acting on behalf of and with the authority of Car Colors Of North Shore Limited.
1.2 ďCustomerĒ 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 ďGoodsĒ means all Goods or Services supplied by the Seller to the Customer at the Customerís request from time to time (where the context so permits the terms ĎGoodsí or ĎServicesí shall be interchangeable for the other).
1.4 ďPriceĒ means the Price payable for the Goods as agreed between the Seller 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 Sellerís consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and the Seller.
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 the Seller 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 Customerís details (including but not limited to, changes in the Customerís name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by the Seller as a result of the Customerís failure to comply with this clause.
5.1 At the Sellerís sole discretion the Price shall be either:
(a) as indicated on any invoice provided by the Seller to the Customer; or
(b)the Price as at the date of delivery of the Goods according to the Sellerís current price list; or
(c) the Sellerís quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of sixty (60) days.
5.2 The Seller reserves the right to change the Price if a variation to the Sellerís 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 increases to the Seller in the cost of materials) will be charged for on the basis of the Sellerís quotation and will be shown as variations on the invoice.
5.3 At the Sellerís 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 the Seller, which may be:
(a) on delivery of the Goods;
(b)before delivery of the Goods;
(c) by way of instalments/progress payments in accordance with the Sellerís payment schedule;
(d)for certain approved Customers, due twenty (20) days following the end of the month in which a statement is posted to the Customerís address or address for notices;
(e) the date specified on any invoice or other form as being the date for payment; or
(f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by the Seller.
5.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by any other method as agreed to between the Customer and the Seller.
5.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to the Seller an amount equal to any GST the Seller must pay for any supply by the Seller 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 (ďDeliveryĒ) of the Goods is taken to occur at the time that:
(a) the Customer or the Customerís nominated carrier takes possession of the Goods at the Sellerís address; or
(b)the Seller (or the Sellerís nominated carrier) delivers the Goods to the Customerís nominated address even if the Customer is not present at the address.
6.2 At the Sellerís sole discretion the cost of delivery is in addition to the Price.
6.3 The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then the Seller shall be entitled to charge a reasonable fee for redelivery and/or storage.
6.4 The Seller 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.
6.5 Any time or date given by the Seller to the Customer is an estimate only. The Customer must still accept delivery of the Goods even if late and the Seller will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.
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, the Seller is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Seller is sufficient evidence of the Sellerís rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
7.3 If the Customer requests the Seller to leave Goods outside the Sellerís premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customerís sole risk.
7.4 The Customer acknowledges that Goods supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. The Seller will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur.
7.5 The Seller shall not be liable for inferior existing paintwork where the Sellerís paint has bonded to the existing paintwork and weakened the previous paint causing any kind of flake, crack or blemish.
7.6 The Customer accepts and agrees that:
(a) it is the Customerís responsibility to check the accuracy of the colour before use. The Seller accepts no responsibility for any incorrect colour once the Goods (paint) has been applied; and
(b)all Goods supplied must be stirred well before use.
7.7 Any advice, recommendation, information, assistance or service provided by the Seller in relation to Goods or Services supplied is given in good faith, is based on the Sellerís own knowledge and experience and shall be accepted without liability on the part of the Seller 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.
(a) the Customer has paid the Seller all amounts owing to the Seller; and
(b)the Customer has met all of its other obligations to the Seller.
8.2 Receipt by the Seller 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.
8.3 It is further agreed that:
(a) until ownership of the Goods passes to the Customer in accordance with clause 8.1 that the Customer is only a bailee of the Goods and must return the Goods to the Seller on request.
(b)the Customer holds the benefit of the Customerís insurance of the Goods on trust for the Seller and must pay to the Seller 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 the Seller and must pay or deliver the proceeds to the Seller 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 the Seller and must sell, dispose of or return the resulting product to the Seller as it so directs.
(e) the Customer irrevocably authorises the Seller to enter any premises where the Seller believes the Goods are kept and recover possession of the Goods.
(f) the Seller 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 the Seller.
(h) the Seller may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
(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) Ė being a monetary obligation of the Customer to the Seller for Services Ė that have previously been supplied and that will be supplied in the future by the Seller to the Customer.
9.2 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 the Seller may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b)indemnify, and upon demand reimburse, the Seller 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 the Seller; and
(d)immediately advise the Seller 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.
9.3 The Seller and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
9.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
9.6 The Customer shall unconditionally ratify any actions taken by the Seller under clauses 9.1 to 9.5.
10.1 In consideration of the Seller 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).
10.2 The Customer indemnifies the Seller from and against all the Sellerís costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Sellerís rights under this clause.
10.3 The Customer irrevocably appoints the Seller and each director of the Seller as the Customerís true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Customerís behalf.
11. Customerís Disclaimer
11.1 The Customer hereby disclaims any right to rescind, or cancel any contract with the Seller or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by the Seller and the Customer acknowledges that the Goods are bought relying solely upon the Customerís skill and judgment.
12.1 The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Seller 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 the Seller has agreed in writing that the Customer is entitled to reject, the Sellerís liability is limited to either (at the Sellerís discretion) replacing the Goods or repairing the Goods.
13.1 Returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 12.1; and
(b)the Seller has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Customerís cost within seven (7) days of the delivery date; and
(d)the Seller will not be liable for Goods which have not been stored or used in a proper manner; and
(e) 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.
13.2 The Seller may (in its discretion) accept the return of Goods for credit but this may incur a restocking and/or handling fee of ten percent (10%) of the value of the returned Goods plus any freight.
13.3 Non-stocklist items or Goods made to the Customerís specifications (including, but not limited to, mixed colours) are under no circumstances acceptable for credit or return.
14.1 For Goods not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller 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.
14.2 To the extent permitted by statute, no warranty is given by the Seller as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. The Seller shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
15. Consumer Guarantees Act 1993
15.1 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 the Seller to the Customer.
16. Intellectual Property
16.1 Where the Seller has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of the Seller.
16.2 The Customer warrants that all designs, specifications or instructions given to the Seller will not cause the Seller to infringe any patent, registered design or trademark in the execution of the Customerís order and the Customer agrees to indemnify the Seller against any action taken by a third party against the Seller in respect of any such infringement.
16.3 The Customer agrees that the Seller may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which the Seller has created for the Customer.
17.1 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 the Sellerís sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
17.2 If the Customer owes the Seller any money the Customer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Sellerís collection agency costs, and bank dishonour fees).
17.3 Further to any other rights or remedies the Seller may have under this contract, if a Customer has made payment to the Seller by credit card, 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 the Seller under this clause 17 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customerís obligations under this agreement.
17.4 Without prejudice to any other remedies the Seller may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions the Seller may suspend or terminate the supply of Goods to the Customer. The Seller will not be liable to the Customer for any loss or damage the Customer suffers because the Seller has exercised its rights under this clause.
17.5 Without prejudice to the Sellerís other remedies at law the Seller shall be entitled to cancel all or any part of any ord