“Warwick” shall mean Warwick Fabrics Limited, or any agents or employees thereof.
“Customer” shall mean the Customer, any person acting on behalf of and with the authority of the Customer, or any person purchasing products and services from Warwick.
“Goods” shall mean:
all Goods of the general description specified on the front of this agreement and supplied by Warwick to the Customer; and
all Goods supplied by Warwick to the Customer; and
all inventory of the Customer that is supplied by Warwick; and
all Goods supplied by Warwick and further identified in any invoice issued by Warwick to the Customer, which invoices are deemed to be incorporated into and form part of this agreement; and
all Goods that are marked as having been supplied by Warwick or that are stored by the Customer in a manner that enables them to be identified as having been supplied by Warwick; and
all of the Customer’s present and after-acquired Goods that Warwick has performed work on or to or in which goods or materials supplied or financed by Warwick have been attached or incorporated.
The above descriptions may overlap but each is independent of and does not limit the others.
“Goods” shall also mean all goods, products, services and advice provided by Warwick to the Customer and shall include without limitation the supply of fabrics and all charges for labour, hire charges, insurance charges, or any fee or charge associated with the supply of Goods by Warwick to the Customer.
Any instructions received by Warwick from the Customer for the supply of Goods shall constitute a binding contract and acceptance of the terms and conditions contained herein.
Collection and use of information
The Customer authorises Warwick to collect, retain and use any information about the Customer, for the purpose of assessing the Customer’s credit worthiness, enforcing any rights under this contract, or marketing any Goods provided by Warwick to any other party.
The Customer authorises Warwick to disclose any information obtained to any person for the purposes set out in clause 3.1.
Where the Customer is a natural person the authorities under clauses 3.1 and 3.2 are authorities or consents for the purposes of the Privacy Act 1993.
Where no price is stated in writing or agreed to orally the Goods shall be deemed to be sold at the current amount as such Goods are sold by Warwick at the time of the contract.
The price may be increased by the amount of any reasonable increase in the cost of supply of the Goods that is beyond the control of Warwick between the date of the contract and delivery of the Goods.
Warwick reserve the right to change prices and to discontinue fabrics without notice. Recommended retail is inclusive of GST.
The price includes the cost of delivery of the Goods to the Customer except:
Where the price is less than $900.00 or is for closeout product; and/or
At the request of the Customer the Goods are delivered urgently and not in accordance with the Warwick’s usual delivery schedule; and/or
At the request of the Customer the Goods are delivered by more than one shipment.
Payment for Goods shall be made in full on or before the 20th day of the month following the date of the invoice (“the due date”).
Interest may be charged on any amount owing after the due date at the rate of 2.5% per month or part month.
Any expenses, disbursements and legal costs incurred by Warwick in the enforcement of any rights contained in this contract shall be paid by the Customer, including any reasonable solicitor’s fees or debt collection agency fees.
Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
A deposit may be required.
If payment is overdue the company may at its discretion and in addition to its other remedies suspend the customer’s entitlement to credit and require payment in cash on or before delivery of the goods, or withhold supply of any goods ordered by the customer under any contract, until the customer has discharged all outstanding indebtness to the company.
Where a quotation is given by Warwick for Goods:
Unless otherwise agreed the quotation shall be valid for ninety (90) days from the date of issue.
Warwick reserve the right to alter the quotation because of circumstances beyond its control.
The Goods remain at Warwick’s risk until delivery to the Customer.
Delivery of Goods shall be deemed complete when Warwick gives possession of the Goods directly to the Customer or possession of the Goods is given to a carrier, courier, or other bailee for purposes of transmission to the Customer.
Title and security (Personal Property Securities Act 1999)
Title in any Goods supplied by Warwick passes to the Customer only when the Customer has made payment in full for all Goods provided by Warwick and of all other sums due to Warwick by the Customer on any account whatsoever. Until all sums due to Warwick by the Customer have been paid in full, Warwick has a security interest in all Goods.
If the Goods are attached, fixed, or incorporated into any property of the Customer, by way of any manufacturing or assembly process by the Customer or any third party, title in the Goods shall remain with Warwick until the Customer has made payment for all Goods, and where those Goods are mixed with other property so as to be part of or a constituent of any new Goods, title to these new Goods shall deemed to be assigned to Warwick as security for the full satisfaction by the Customer of the full amount owing between Warwick and Customer.
The Customer gives irrevocable authority to Warwick 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 Warwick 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. Warwick 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. Warwick 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 Warwick reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.
Where Goods are retained by Warwick pursuant to clause 8.3 the Customer waives the right to receive notice under s.120 of the Personal Property Securities Act 1999 (“PPSA”) and to object under s.121 of the PPSA.
The following shall constitute defaults by the Customer:
Non payment of any sum by the due date.
The Customer intimates that it will not pay any sum by the due date.
Any Goods are seized by any other creditor of the Customer or any other creditor intimates that it intends to seize Goods.
Any Goods in the possession of the Customer are materially damaged while any sum due from the Customer to Warwick remains unpaid.
The Customer is bankrupted or put into liquidation or a receiver is appointed to any of the Customer’s assets or a landlord distrains against any of the Customer’s assets.
A Court judgment is entered against the Customer and remains unsatisfied for seven (7) days.
Any material adverse change in the financial position of the Customer.
Warwick may in its discretion allocate any payment received from the Customer towards any invoice that Warwick 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 Warwick, payment shall be deemed to be allocated in such manner as preserves the maximum value of Warwick’s purchase money security interest in the Goods.
Disputes and returns of goods
No claim relating to the Goods (including claims for errors or short deliveries) will be considered unless made within ten (10) days of delivery.
No Goods will be considered for return without the prior consent of Warwick. Any Goods considered for return must have been supplied at the standard price charged by Warwick and not at a discount or reduced price or on other special terms and must be in resaleable, undamaged condition, free of any stickers or other labelling by the Customer and must not have been cut. In addition the Goods must not have been imported from overseas at the Customer’s specific request. Warwick may charge a handling and restocking fee of up to 15% of the price of the Goods for any Goods accepted for return.
The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon Warwick 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 Warwick, Warwick’s liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.
Except as otherwise provided by clause 11.1 Warwick shall not be liable for:
Any loss or damage of any kind whatsoever, arising from the supply of Goods by Warwick to the Customer, including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Goods provided by Warwick to the Customer; and
The Customer shall indemnify Warwick against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of Warwick or otherwise, brought by any person in connection with any matter, act, omission, or error by Warwick its agents or employees in connection with the Goods.
Any warranty that Warwick provide to the Customer will also form part of these terms and conditions of trade.
Consumer Guarantees Act
The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Goods from Warwick for the purposes of a business in terms of section 2 and 43 of that Act.
Personal guarantee of company directors or trustees
If the Customer is a company or trust, the director(s) or trustee(s) signing this contract, in consideration for Warwick agreeing to supply Goods and grant credit to the Customer at their request, also sign this contract in their personal capacity and jointly and severally personally undertake as principal debtors to Warwick the payment of any and all monies now or hereafter owed by the Customer to Warwick and indemnify Warwick 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.
Warwick cannot agree that fabrics supplied will match exactly to the sample from which it is ordered. If exact match is required, please supply sample with order, otherwise no returns will be accepted.
All fabrics are liable to shrinkage and sufficient allowance should be made.
The Customer agrees to check before cutting that the correct fabric colour and meterage has been supplied. No claims will be accepted after fabric has been cut.
Warwick shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
Failure by Warwick to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations Warwick has under this contract.
If any provision of this contract shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.