Wholesale Terms & Conditions of Sale
1.1 The goods described on the face of this document (“the Goods”) are supplied by Jacobsen Creative Surfaces Limited (together with its agents, administrators and assigns called “the Seller”) to the addressee of this document (together with its agents, administrators and assigns called “the Buyer”) on the following terms and conditions.
2.1 In the case of indent orders the price noted on the order is based on the cost of the Goods to the Seller at the date of the order and any subsequent increase in the cost to the Seller of supplying the Goods shall be paid by the Buyer in addition to the price and the increased price shall become the price for all purposes relating to the sale. All prices are exclusive of GST unless otherwise stated.
3.1 Payment is to be made in the manner agreed by the Seller in writing or in the absence of such agreement payment in full is to be made on the 20th day of the month following invoice.
3.2 Payment is only accepted by bank direct credit or credit card. No payment shall be deemed to have been made until funds have been cleared and cash payment received by the Seller. Credit card payments incur a 2% surcharge.
4.0 INTEREST, COSTS AND CHARGES
4.1 Where any payment is not made on the due date then without prejudice to any other rights or remedies available to the Seller under these conditions of sale or at law or in equity or otherwise the Seller may:
4.1.1 Charge interest, by way of liquidated damages, on all payments overdue at the rate of 2% per month calculated on a daily basis from the date on which payment was due until the date of payment;
4.1.2 Withhold deliveries or cancel undelivered orders or portions thereof;
4.1.3 Cancel any other order or contract or arrangement between the Seller and the Buyer or suspend performance of such order, contract or arrangement pending payment without being liable to the Buyer for any losses (of any kind and whether direct or indirect or consequential) it might suffer.
4.2 Where any payment is not made on the due date or the Buyer is unable or unwilling to collect the Goods or to accept physical delivery of the Goods when the Goods are ready for delivery the Seller may cancel the order and retain as liquidated damages up to 10% of the purchase price.
4.3 The Buyer shall upon demand reimburse the Seller for all costs, expenses and other sums reasonably incurred by the Seller in exercising any right or remedy available to it consequent upon default by the Buyer (including legal costs calculated on a Solicitor-Own basis) which amounts shall also carry interest at the rate specified in clause 4.1 if unpaid within one week of demand having been made.
5.0 CANCELLATION OF ORDERS
5.1 Orders, once accepted by the Seller, may not be cancelled without the Seller’s prior written agreement. The Buyer acknowledges that, if the Seller in its absolute discretion agrees to cancellation of part or all of an order, the Seller may, amongst other things, make that acceptance conditional upon payment by the Buyer of a reasonable handling charge.
5.2 Goods may not be returned to the Seller for credit without the Seller’s prior agreement and an Authority to Return number issued by the Seller. If the Seller, in its absolute discretion, agrees to the return of Goods for credit, the Buyer shall pre-pay delivery of the Goods to the
Seller. Goods may only be returned if in first class condition and suitable for resale.
5.3 In the case of indent orders for non-standard stock items, if the Buyer cancels the order or fails to accept delivery of or pay for any Goods, then, without prejudice to any other rights or remedies available to the Seller under these Conditions of Sale or at law or in equity or otherwise, the Seller may:
5.3.1 Cancel the order and retain or recover from the Buyer as liquidated damages up to 50% of the purchase price;
5.3.2 Cancel the order, re-sell the Goods and recover from the Buyer any loss incurred by the Seller and any costs of resale;
5.3.3 Exercise all or any of the remedies in clause 4 of these Conditions of Sale.
6.1 The Seller’s delivery obligations shall be satisfied by making the Goods available for collection at the Seller’s premises unless otherwise agreed by the Seller in writing.
6.2 The Seller shall use its best endeavours to meet the Buyer’s required delivery date but will not be responsible for any loss or damage (in either case, of any kind and whether direct, indirect or consequential) arising from any delay in the delivery of the Goods for any reason beyond the Seller’s reasonable control.
7.0 FORCE MAJEURE
7.1 Please note that any delivery date given is also subject to below Force Majeure clause:
7.2 No Party shall be liable for any failure to perform its obligations where such failure is as a result of acts of nature (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalisation, government sanction, Pandemic, blockage, embargo, labour dispute, strike, lockout or interruption or failure of international air or sea transportation, and no other Party will have a right to cancel this order in such circumstances.
7.3 Any Party asserting Force Majeure as an excuse shall have the burden of proving that reasonable steps were taken (under the circumstances) to minimize delay or damages caused
by foreseeable events, that all non-excused obligations were substantially fulfilled, and that the other Party was timely notified of the likelihood or actual occurrence which would justify such an assertion, so that other prudent precautions could be contemplated.
8.0 RISK AND TITLE
8.1 The Buyer carries the full risk in the Goods from the date of their delivery by the Seller.
8.2 Title to, and property in, any goods supplied by the Seller to the Buyer (“the Collateral”) will not pass to the Buyer until payment of the purchase price for the Collateral is received. For the purposes of the Personal Property Securities Act 1999 (“the PPSA”), this clause is intended to create a security interest in the Collateral to secure the obligation of the Buyer to pay the purchase price for the Collateral.
8.3 The Buyer grants to the Seller a security interest in the Collateral and in any proceeds arising from the sale of the Collateral to secure the obligation of the Buyer to pay the purchase price for the Collateral and any other obligations of the buyer to the Seller under this Agreement as and when the same become due.
8.4 The Buyer warrants and undertakes to 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 PPPSA Register.
8.5 The Buyer waives its right to receive a Verification Statement in respect of any Financing Statement or Financing Change Statement in accordance with Section 148 of the PPSA.
8.6 If any part of this clause 7 is void or unenforceable against any creditor, Statutory Manager, receiver or liquidator or Official Assignee in bankruptcy of the Buyer only that part of this clause shall be void or unenforceable, and it shall be severed from this clause leaving the remaining provisions in full force and effect.
9.0 WARRANTIES AND LIABILITIES
9.1 The Seller makes no representations and gives no assurance, condition or warranty of any kind to the Buyer (including any assurance, condition or warranty implied by law to the extent that such assurance, condition or warranty can be excluded) in relation to the Goods and accepts no liability for any assurance, condition, warranty, representation, statement or term not expressly set out in these conditions of sale or other writing given by the Seller to the Buyer. The Buyer specifically acknowledges that it is acquiring the Goods for business purposes and that the provisions of the Consumer Guarantees Act 1993 are excluded.
9.2 The Seller will replace with reasonable dispatch any Goods containing faults which under proper and normal conditions of storage or use are revealed and notified to the Seller in writing within 14 days of receipt of the Goods by the Buyer. The Seller’s obligations under this warranty are limited to replacing any Goods which in the Seller’s opinion are defective. Before replacement the Seller may require the defective Goods to be returned to the Seller’s premises together with proof of purchase. This warranty does not extend to indent orders, sale Goods, specials, obsolete lines or part cartons.
9.3 The benefit of the warranty contained in clause 8.2 is personal to the Buyer and is not assignable.
9.4 The Seller will not, in any circumstances, be liable for any deficiencies, damaged or faulty Goods or errors in despatch:
9.4.1 Where the Buyer or any person on the Buyer’s behalf has signed for receipt of the Goods in good order; or
9.4.2 Which would have been apparent by inspection on delivery.
In other circumstances the Seller will not be liable unless written notice of the deficiency, fault, damage or error is given to the Seller within a reasonable time from receipt of the Goods by the Buyer.
9.5 The Buyer’s remedies in respect of any claim against the Seller are limited to the remedies set out in clause 9.2. The Seller shall not be liable (whether before or after completion of any contract for the supply of any Goods) for any loss or damage arising from, caused by or due to any negligence of the Seller’s representatives, servants or agents. The Seller shall not be liable for any special, incidental, indirect or consequential loss or damage which may result from or relate to a breach by the Seller of any of its obligations or a breach of any of the Buyer’s rights. Regardless of the legal basis of any claim made against the Seller, the maximum liability of the Seller will, to the extent allowed by law, not exceed the purchase price paid or payable for the goods or services supplied which gave rise to that claim.
9.6 None of the Seller’s employees, agents or independent contractors shall in any circumstance be under any liability of any kind to the Buyer for any loss or damage whether arising or resulting directly, indirectly or consequentially from any act, neglect or default on their part. Every exemption, limitation, condition and right expressed or implied in these Conditions of Sale on the part of the Seller or in favour of the Seller shall extend to protect all of its employees, agents and independent contractors.
10.0 SHADING/BATCH VARIATIONS
10.1 The Buyer acknowledges that due to the nature of vinyl flooring and wallcovering, ceramic tiles and wood flooring, and the manufacturing process by which they are produced, there may be a variation in shade between the sample and the delivered product and between one batch of product and another and that such variation in shade is not a defect and the Seller accepts no liability for any such variation.
11.1 The Seller shall not be deemed to have waived or varied any provision of these conditions of sale or any right or remedy which it may have under these conditions of sale or at law or in equity or otherwise unless the waiver or variation is in writing signed by the Seller or an authorised person on its behalf. No waiver of a breach shall be deemed to be a waiver of any other breach or any further breach.