In these terms:
“Vidak” means Vidak Limited.
“Purchaser” means the purchaser of the Products.
“Products” means the physical product supported by Vidak being office furniture, fittings and accessories (including workstations, mobiles, screens, cable droppers and accessories) and services directly associated with the delivery and installation of the Products as collectively described in the Quotation (but excluding all design services relating to those items or their location at the Site).
“Quotation” means the quotation for the Products setting out the detail of what is to be delivered by Vidak to the Purchaser.
“Site” means the physical premises to which the Products are to be delivered and installed.
2. ORDERS AND SECURITY FOR PAYMENT
2.1 All orders are subject to the Quotation and acceptance by Vidak. Any order accepted by Vidak from 1 February 2014 is only on these terms. They are paramount and take precedence over any terms (oral or written) which may be offered by the Purchaser, or any previous terms of Vidak. If Vidak fails to enforce any of these terms or exercise its rights under them it is not be deemed to have waived those terms or rights.
2.2 Vidak and the Purchaser may agree upon special orders and quotations which must be in writing. They are subject to these terms unless specifically provided otherwise or they are obviously inapplicable to the special order or quotation.
2.3 Before Vidak accepts an order from the Purchaser, Vidak may require the Purchaser to pay a deposit, pay for offsite materials, make progress payments or at the Purchaser’s expense provide a bond or guarantee on such terms as Vidak may reasonably require in order to secure payment under clause 5.
3. ORDER CANCELLATION
3.1 No order that is accepted by Vidak can be cancelled without its written consent. If cancellation is agreed the Purchaser must pay Vidak all costs and expenses incurred by Vidak in fulfilling the order to the date of cancellation together with its sales margin.
4.1 The price of the Products is the price in the Quotation or as otherwise agreed in writing.
4.2 The price of the Products excludes goods and services tax (“GST”) and (subject to the Quotation) excludes all insurance, transport and packaging costs to delivery to the Site.
5.1 The price of the Products plus GST must be paid by the Purchaser in cleared funds no later than the 20th of the month following the date of the invoice for the Products.
5.2 The Purchaser may not deduct or withhold any amount (whether by way of set-off, counterclaim or otherwise) from any money owing to Vidak or in respect of any security for payment given under clause 2.3.
5.3 If full payment for the Products is not made to Vidak by the due date for payment (without affecting any other rights it may have), Vidak may at its discretion require the Purchaser to pay, on demand, default interest on any amount outstanding at the rate equivalent to the prevailing cost of funds to Vidak plus 2%, plus GST.
5.4 Default interest will accrue on a daily basis from the date when payment is due until the date when payment is actually made. The Purchaser will also be liable to pay all expenses and costs (including legal costs as between solicitor and client) in connection with Vidak recovering or attempting to recover any overdue amount from the Purchaser.
5.5 Vidak may also at its option suspend the manufacture or delivery of the unpaid or any undelivered Products in its possession and retain them until the overdue amounts are paid in full.
6. ACCOUNT SUSPENSION AND CLOSURE
6.1 Without prejudice to any other rights that Vidak may have, Vidak may suspend a Purchaser’s account if payment for the Products is not made on the due date. An account suspension may cause all unfulfilled orders from the Purchaser to be cancelled.
6.2 Vidak may close a Purchaser’s account at any time for any reason whatsoever, including without limitation, where:
(a) any of these terms is not observed; or
(b) the Purchaser has on more than 3 previous occasions in any 12 month period failed to make payments required in accordance with these terms notwithstanding that the most recent invoice was paid on the due date,
and Vidak is not be liable to the Purchaser for any loss or damage which results directly or indirectly from the closure of such account.
7. DELIVERY AND INSTALLATION
7.1 Vidak will arrange the delivery of the Products to the Site and installation in accordance with the Quotation.
7.2 Vidak will in no event be liable for any late or non delivery.
7.3 Delivery will be made or deemed to have been made when the Products arrive at the Site agreed with the Purchaser and, if no such agreement has been made, delivery will occur when the Products are despatched from Vidak’s premises.
7.4 If the Purchaser (or its contractors, agents or employees) fails or refuses or indicates to Vidak that it will fail or refuse to take delivery, whether because the Site is not available, is not ready for Product delivery, has insufficient access or delivery cannot occur for any other reason beyond Vidak’s control, then the Products will be deemed to have been delivered when Vidak was willing to deliver them.
7.5 In that event, on written request by Vidak the Purchaser agrees to pay:
(a) From the date of deemed delivery, Vidak’s reasonable storage, insurance and other costs relating to Vidak’s inability to delivery the Products; or
(b) After a period of 7 days from the deemed date of delivery (including the date of deemed delivery and the 7th day thereafter), all Vidak’s work in progress, offsite materials and labour costs and margin as if the Product had been delivered to the Site on their due date.
7.6 Vidak may deliver the Products by instalments. Each instalment is deemed to be a separate contract subject to these terms. If Vidak fails to deliver or makes defective or short delivery of one or more instalments (or any part of them) the Purchaser is not entitled to repudiate or cancel the main contract.
8. RISK AND OWNERSHIP
8.1 The Products are at the Purchaser’s risk immediately on delivery to the Site notwithstanding that Vidak may not have completed their installation. The Purchaser will insure the Products at full replacement value until legal and beneficial ownership of them has passed to the Purchaser.
8.2 If the Products are damaged or destroyed before legal and beneficial ownership of them has passed to the Purchaser, the Purchaser will hold the proceeds of such insurance in a separate fund and on trust for Vidak and subject to its rights as a secured party under clause 12.
9. WARRANTY AND LIABILITY
9.1 By accepting these terms, the Purchaser represents that it acquires the Products for business purposes so that the Consumer Guarantees Act 1993 does not apply to the Products and the sale is not a consumer sale.
9.2 Subject to clause 9.1:
(a) Vidak gives to the Purchaser the Products warranty attached to these terms as the Schedule and gives no other warranties whether express or implied by law (including the Sale of Goods Act 1908) and makes no other representations (whether for the purposes of the Fair Trading Act 1986 or any other legislation).
(b) Vidak will accept no liability for any damages or losses (including loss of profits) arising as a consequence of any act, default or negligence on the part of Vidak or of an employee, agent or contractor of Vidak.
(c) , Notwithstanding clause 9.2 (b), Insofar as Vidak may be liable for any loss, damage or injury arising directly or indirectly from any defect in the Products, the total liability of Vidak, whether in tort, contract or under any other legal rule or principle, is limited to the lesser of the price of the Products complained of, and the cost of replacing the Products to the required standard.
(d) Vidak will not be liable in any event for any consequential, indirect or damage, loss or injury of any kind suffered by the Purchaser.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 Vidak retains all rights in the copyright, patents, trademarks, designs, and other intellectual property rights to the Products and the Purchaser acknowledges that it has no claim to them. The Purchaser agrees to treat all information concerning the pricing quotation and manufacture of the Products as strictly confidential.
10.2 Vidak is not be liable for Products manufactured under the Purchaser’s directions/specifications and the Purchaser agrees to indemnify Vidak in relation to any claims for infringement of the intellectual property rights of third parties that might result.
11. FORCE MAJEURE
11.1 Notwithstanding any other provisions of these terms (but subject to the other provisions of this clause), if either party fails to observe or perform any of the provisions of these terms other than an obligation to pay money, and such failure is caused by or in connection with or in consequence of Force Majeure, the failure will not be a breach of such terms whose operation will be suspended except for any obligation to pay money.
11.2 For the purposes of these terms, “Force Majeure” means any act of God, weather conditions, medical or health risks, fire, accident or emergency of any kind, failures or delays in utilities supplies or in communications, software or information technology any other similar cause beyond the reasonable control of Vidak or the Purchaser as the case may be, which prevents, hinders or interferes with the performance by either of them of their obligations under these terms.
11.3 Neither party shall be entitled to the benefit of the provisions of this clause 11 under any or all of the following circumstances:
(a) to the extent that the failure was caused by the party claiming suspension and such party has failed to remedy the event, and to resume the performance of such terms or obligations, with reasonable promptness; or
(b) if the failure was caused by lack of funds; or
(c) unless as soon as possible after the happening of the event relied upon or as soon as possible after determining that the event was in the nature of Force Majeure and would affect the claiming party’s ability to observe or perform any of its terms, the party claiming suspension has given to the other party notice to the effect that it is unable by reason of a specified event of Force Majeure to perform the particular terms.
11.4 The party claiming suspension must also give notice as soon as possible after the Force Majeure is remedied, and that such party has resumed, or is then in a position to resume, the performance of terms.
11.5 Notwithstanding anything to the contrary expressed or implied in this clause 11, the parties agree that the settlement of strikes, lockouts and other industrial disturbances is entirely within the discretion of the particular party involved and such party may make settlement at such time and on such terms and conditions as it may deem to be advisable and no delay in making such settlement will deprive such party of the benefit of this clause 11.
11.6 If the event of Force Majeure continues for 10 days or more either party may terminate these terms by written notice to the other but any pre-existing rights will not be affected.
12. PERSONAL PROPERTY SECURITIES ACT
12.1 Vidak and the Purchaser acknowledge that these terms constitute a security agreement as defined by the Personal Property Securities Act 1999 (“PPSA”). For the purposes of the PPSA, in this clause the term “Collateral” includes the Products and their proceeds including insurance payments. The Purchaser agrees to give Vidak a security interest in all of the Purchaser’s present and after-acquired property that Vidak has supplied as the Products as the Collateral and agrees not to allow any person to file a finance statement over any of the Collateral secured by this security agreement without the prior written consent of Vidak.
12.2 The Purchaser agrees to advise its creditors of the terms upon which it buys Products from Vidak and that Vidak may create and register a purchase money security Interest under the PPSA for all Products in which Vidak has title.
12.3 Upon signing these terms the Purchaser acknowledges that:
(a) these terms are a security agreement for the purposes of section 36 of the PPSA, and
(b) a security interest is taken in all Products previously supplied to the Purchaser and all Products that will be supplied in the future by Vidak to the Purchaser during the continuance of the party’s relationships.
12.4 The Purchaser undertakes to:
(a) Sign any further documents and/or provide any further information which Vidak may reasonably require to register financing statements or financing change statements on the Personal Properties Securities Register,
(b) Give Vidak not less than 14 days prior written notice of any proposed change to the Purchaser’s name and will use its best endeavours to ensure that a financing change statement is registered disclosing its new name; and
(c) Immediately advise Vidak of any material change in its business practices of selling the Products that would result in a change of the nature of proceeds derived from such sales.
(d) The Purchaser waives the rights listed in section 107(2) of PPSA, its right to receive the notice referred to in section 114(1)(a) of the PPSA, its right to reinstate under sections 133 and 134 and its right to receive verification statements under section 148 of the PPSA. The Purchaser agrees that Vidak may exercise the rights in sections 108, 109, 111(1) and 120(1) of the PPSA whether or not Vidak has priority over all other secured parties, and that Vidak may charge for complying with a demand under section 162 of the PPSA. The Purchaser will inform any trustee in bankruptcy or liquidator of the Purchaser or any receiver of the Purchaser’s business or assets of the rights of Vidak and title to the proceeds of sale.
12.5 The security agreement is a continuing security and will operate irrespective of any intervening payment or settlement of account until a release has been signed by Vidak. The security interest granted in the Collateral has the same priority in relation to any Products supplied to the Purchaser by Vidak at any time.
13.1 Either Vidak or the Purchaser can terminate the trading relationship between them based on these terms with 10 days written notice to the other.
13.2 Termination will be without prejudice to any claims that either party may have under the terms and any outstanding but unfulfilled orders will be completed.
13.3 If the Purchaser breaches any of these terms which is material and the breach (if capable of remedy) remains unremedied after Vidak has given 30 days written notice of the defect specifying what is required for remedy or if the Purchaser becomes bankrupt or is put into liquidation, voluntary or otherwise, receivership or voluntary administration or enters into an arrangement or compromise with their creditors then, in any of those cases, Vidak may cancel the supply agreements then in force with the Purchaser and claim the amounts referred to in clause 7.5 (b) as if that clause applied to those circumstances, without notice.