1.1 “43South” shall mean 43South Limited (company number 6232188), or any agents or employees thereof.
1.2 “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 43South.
1.3 “Goods” shall mean:
1.3.1all Goods of the general description specified on the front of this agreement and supplied by 43South to the Customer; and
1.3.2 all Goods supplied by 43South to the Customer; and
1.3.3 all inventory of the Customer that is supplied by 43South; and
1.3.4 all Goods supplied 43South and further identified in any invoice issued by 43South to the Customer, which invoices are deemed to be incorporated into and form part of these terms and conditions; and
1.3.5 all Goods that are marked as having been supplied by 43South or that are stored by the Customer in a manner that enables them to be identified as having been supplied by 43South; and
1.3.6 all of the Customer’s present and after-acquired Goods that 43South has performed work on or to or in which goods or materials supplied or financed 43South have been attached or incorporated. The above descriptions may overlap but each is independent of and does not limit the others.
1.4 “Goods and Services” shall mean all Goods, products, services and advice provided by 43South to the Customer and shall include without limitation the importing, design, manufacture and servicing of water treatment chemicals and water treatment equipment programs and systems and all charges for labour, hire charges, insurance charges, or any fee or charge associated with the supply of Goods and Services by 43South to the Customer.
2.1 Any instructions received by 43South from the Customer for the supply of Goods and Services shall constitute a binding contract and acceptance of the terms and conditions contained herein (as amended from time to time).
3. COLLECTION AND USE OF INFORMATION
3.1 The Customer authorises 43South to collect, retain and use any information about the Customer, for the purpose of assessing the Customer’s credit worthiness, enforcing any rights under these terms and conditions, or marketing any Goods and Services provided by 43South to any other party.
3.2 The Customer authorises 43South to disclose any information obtained to any person for the purposes set out in clause 3.1.
3.3 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.
4.1 Where no price is stated in writing or agreed to orally the Goods and Services shall be deemed to be sold at the current amount as such Goods and Services are sold by 43South.
4.2 The price of the Goods and Services may be increased by the amount of any reasonable increase in the cost of supply of the Goods and Services that is beyond the control of 43South.
5.1 Payment for Goods and Services shall be made in full on or before the 20th day of the month following the date of the invoice (the “due date”).
5.2 Interest may be charged on any amount owing after the due date at the rate of 2.5% per month or part month.
5.3 Any expenses, disbursements and legal costs incurred by 43South 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.
5.4 Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
5.5 A deposit may be required.
6.1 Where a quotation is given by 43South for Goods and Services:
6.1.1 Unless otherwise agreed the quotation shall be valid for thirty (30) days from the date of issue; and
6.1.2 The quotation shall be exclusive of goods and services tax unless specifically stated to the contrary;
6.1.3 43South reserves the right to alter the quotation because of circumstances beyond its control.
6.2 Where Goods and Services are required in addition to the volumes speicifed in the quotation the Customer agrees to pay for the additional cost of such Goods and Services.
7.1 The Goods and Services remain at 43South’s risk until delivery to the Customer.
7.2 Delivery of Goods and Services shall be deemed complete when 43South gives possession of the Goods and Services directly to the Customer or possession of the Goods and Services is given to a carrier, courier, or other bailee for purposes of transmission to the Customer.
8. PERSONAL PROPERTY SECURITIES ACT 1999 (“PPSA”)
8.1 Title in any Goods supplied by 43South passes to the Customer only when the Customer has made payment in full for all Goods provided by 43South and of all other sums due to 43South by the Customer on any account whatsoever. The Customer grants 43South a security interest in all Goods supplied by 43South to the Customer (and any proceeds of those Goods) as security for all amounts owing by the Customer to 43South and for the performance of the Customer’s obligations under these terms and conditions. While the Goods continue to secure the Customer’s indebtedness and obligations, the Customer shall separately store the Goods and clearly identify the Goods as being subject to 43South’s security interest.
8.2 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 43South until the Customer has made payment for all Goods.
8.3 Until title to any particular Goods passes to the Customer, the Customer shall:
8.3.1 hold those Goods as 43South’s bailee; and
8.3.2 return those Goods to 43South on request.
8.4 Even though title to any particular Goods remains with 43South, the Customer may sell those Goods on the Customer’s own account provided that:
8.4.1 any such sale is conducted at arms length and is for the full market value of those Goods; and
8.4.2 43South has not requested the return of those Goods.
8.5 If the Customer fails to comply with any term of these terms and conditions or any other agreement between 43South and the Customer, 43South may exercise any and all remedies afforded to a secured party by Part 9 of the Personal Property Securities Act 1999 (“PPSA”) and enter any building or premises owned, occupied, or used by the Customer, to search for and re-take possession of the Goods.
8.6 The Customer agrees that sections 114(1)(a), 117(1)(c), 133 and 134 of the PPSA shall not apply on the enforcement by 43South of any security interest created or provided for by these terms and conditions. The Customer also waives any rights it may have under sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131 and 137 of the PPSA on such enforcement.
8.7 The Customer acknowledges receipt of a copy of these terms and conditions and waives any right it may have to receive from 43South a copy of any financing statement, financing change statement or verification statement that is registered, issued, or received at any time in relation to Goods supplied pursuant to these terms and conditions.
8.8 The Customer shall immediately notify 43South of any change of name.
8.9 Unless the context otherwise requires, terms and expressions in this clause 8 that are defined in the PPSA shall have the same meaning in this clause as in the PPSA and references to the Goods include references to any one of them.
8.10The Customer gives irrevocable authority to 43South 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 43South 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 provided that this authority shall only be exercisable by 43South whilst full payment for any Goods supplied to the Customer remains outstanding. 43South 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. 43South 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 43South reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.
8.11 The following shall constitute defaults by the Customer:
8.11.1 Non-payment of any sum by the due date.
8.11.2 The Customer intimates that it will not pay any sum by the due date.
8.11.3 Any Goods are seized by any other creditor of the Customer or any other creditor intimates that it intends to seize Goods and Services.
8.11.4 Any Goods in the possession of the Customer are materially damaged while any sum due from the Customer to 43South remains unpaid.
8.11.5 The Customer is bankrupted or put into liquidation or a receiver is appointed to any of the Customer’s assets or a landlord distains against any of the Customer’s assets.
8.11.6 A Court judgment is entered against the Customer and remains unsatisfied for seven (7) days.
8.11.7 Any material adverse change in the financial position of the Customer.
8.12 The Customer agrees that a certificate purporting to be signed by an officer of 43South identifying any Goods as “unpaid for” shall be conclusive evidence that those identified Goods have not been paid for, and of 43South’s title to those Goods.
9. SECURITY INTEREST FOR SERVICE PROVIDERS
9.1 The Customer gives 43South a security interest in all of the Customer’s present and after-acquired property that 43South has performed services on or to or in which goods or materials supplied or financed by 43South have been attached or incorporated.
10.1 The Customer shall keep the Goods in which 43South has a security interest insured in the names of 43South and the Customer for their respective rights and interests and will produce to 43South upon demand such evidence as 43South may require to confirm the existence of such insurance. If the Customer defaults in the performance of its obligations under this clause, 43South shall be entitled to insure the Goods and the cost of effecting such insurance shall be payable by the buyer to 43South upon demand.
If any of the Goods in which 43South has a security interest are damaged or destroyed, 43South shall be entitled, without prejudice to any of its rights or remedies under the contract formed on these terms and conditions (“Contract”) to receive all insurance proceeds which are payable in respect thereof (whether or not the purchase price of such Goods has become payable under the Contract) and the production of this Contract by 43South shall be sufficient evidence of 43South’s right to receive payment of such insurance proceeds without the need for further enquiry by any person dealing with 43South. Any such insurance proceeds shall be applied by 43South as follows:
10.2.1 first, in payment of the purchase price of the Goods which are damaged or destroyed, if unpaid;
10.2.2 secondly, in payment of the outstanding purchase price of any other Goods supplied to the Customer by 43South;
10.2.3 thirdly, in balance of any other sums payable to 43South by the Customer;
10.2.4 thereafter any balance shall be paid to the Customer.
11. PAYMENT ALLOCATION
11.1 43South may in its discretion allocate any payment received from the Customer towards any invoice that 43South 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 43South, payment shall be deemed to be allocated in such manner as preserves the maximum value of 43South’s purchase money security interest in the Goods and Services.
12. DISPUTES AND RETURN OF GOODS
12.1 No claim relating to the Goods and Services will be considered unless made within seven (7) days of delivery.
12.2 No Goods will be accepted for return without the prior approval of 43South. A 15% restocking fee may apply and any Goods considered for return must be unused, undamaged and still in original packaging. No returns will be considered for special orders.
13.1 With respect to Goods manufactured by 43South, warrants that:
13.1.1 Every care will be taken to ensure that the Goods and Services meet 43South’s standards or agreed specifications (within the limits of reasonable commercial accuracy).
13.1.2 43South will comply with all applicable laws and governmental regulations and orders.
13.1.3 All Goods supplied will be of good material and workmanship for a period of 30 days, or such longer period as specified in writing by 43South, from the date of delivery. This warranty does not apply where:
(a) the Goods were used for a purpose other than for which they were intended;
(b) the Goods were repaired, modified, altered or adjusted by any person other than 43South on its specific instructions;
(c) the defect has arisen due to an accident or any wilful damage, negligence, neglect or default of the Customer or any third party;
(d) the defect has arisen due to the incorrect installation of the Goods or abnormal working conditions;
(e) the defect has arisen due to normal wear and tear on the Goods;
(f) the Goods have not been stored or maintained as recommended by 43South; or
(g) the Customer is in breach of any agreement with 43South (including non-payment for any Goods and Services).
13.1.4 43South makes no other warranties, whether of merchantability, fitness for a particular purpose, or otherwise, and none will be implied except in accordance with clause 13.4.
13.2With respect to Goods manufactured by 43South, 43South’s sole obligation under this warranty shall be limited to (at 43South’s option) replacement of the non-conforming Goods at the Customer’s premises or refund of the sale price of the non-conforming Goods. The remedies provided for above are the Customer’s exclusive remedies under these terms and conditions. No claim by the Customer based on defective Goods or Services will be allowed unless:
the claim is notified to 43South within one year of delivery of the Goods to the Customer or performance of the Services, and the claim quotes the invoice number;
the Customer has paid in full all monies it owes to 43South; and
43South is given a reasonable opportunity to investigate the claim.
13.3 With respect to Goods not manufactured by 43South, then a manufacturer’s warranty will apply if applicable. In respect of defective Goods not manufactured by 43South, 43South will in no event be liable to pay to the Customer any amount in excess of such amount (if any) as 43South has received from its supplier in respect of those defective Goods.
13.4 The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon 43South 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 43South, 43South’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.
13.5 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Goods and Services from 43South for the purposes of a business in terms of section 2 and 43 of that Act.
13.6 Except as otherwise provided by clause 13.4, 43South shall not be liable for any indirect or consequential loss or damage of any kind whatsoever arising from the supply of Goods and Services by 43South to the Customer whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise.
13.7 Notwithstanding any other provision of these terms and conditions and any other agreement between 43South and the Customer, but subject always to clause 13.4, the maximum aggregate liability of 43South to the Customer under these terms and conditions and any other agreement between 43South and the Customer shall be limited to the total revenue derived by 43South from the Customer under these terms and conditions.
14.1 Where the Customer supplies the Goods in trade to a person acquiring them for business purposes, it must be a term of the Customer’s contract with the purchaser that the Consumer Guarantees Act 1993 does not apply in respect of the Goods.
14.2 Where the Customer supplies the Goods to any other person, the Customer must not give or make any undertaking, assertion or representation in relation to the Goods without 43South’s prior approval in writing. The Customer shall pass on any written product information supplied by 43South to the purchaser.
14.3 The Customer agrees to indemnify 43South against any liability or cost incurred by 43South under the Consumer Guarantees Act 1993 as a result of any breach by the Customer of the obligations contained in these terms.
15. PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES
15.1 If the Customer is a company or trust, the director(s) or trustee(s) signing the account application form, in consideration for 43South agreeing to supply Goods and Services and grant credit to the Customer at their request, also sign in their personal capacity and jointly and severally personally undertake as principal debtors to 43South the payment of any and all monies now or hereafter owed by the Customer to 43South and indemnify 43South 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.
16.1 43South shall not be liable for non-performance or delay in performance of its obligations due wholly or partly to any cause either not within its control or which it could not by reasonable diligence have avoided. The following events shall be considered not within 43South’s control for the purposes of this clause: (a) labour controversies; (b) court decrees; (c) inability to use the full capacity of plants or facilities as a result of governmental action or intervention, (d) machinery malfunctions or breakdowns; and (e) the inability to obtain, or the curtailment of the supply of: (i) raw materials necessary for the manufacture of the Goods, (ii) labour, (iii) containers, or (iv) transportation facilities, without the payment of penalties or unreasonable prices, or the acceptance of unreasonable terms and conditions. Upon the occurrence of any such event, 43South shall have the right to suspend or reduce deliveries of the Goods or performance of the Services during the period of such event, and the total quantity deliverable under these terms and conditions shall be reduced by the amount so affected.
16.2 Failure by 43South to enforce any of these terms and conditions shall not be deemed to be a waiver of any of the rights or obligations 43South has under these terms and conditions.
16.3 If any provision of these terms and conditions 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.
16.4 43South may amend these terms and conditions from time to time by publishing on its website or sending to its Customers the then current terms and conditions. Any purchase of Goods by the Customer will be subject to the terms and conditions published on the 43South website or previously sent to Customers on the date the Customer places an order.