TERMS OF TRADE
- 1. INTRODUCTION
By requesting Ryan’s Kitchen (a division of REB Holdings Limited) (“Company”) to supply the Goods and Services, the Client agrees (or is deemed to acknowledge and agree) that:
1.1. These Terms will apply to the supply of Goods and Services by the Company to the Client.
1.2. These Terms shall be read subject to the terms and conditions contained in the attached Letter of Engagement.
- 2. INTERPRETATION
2.1. In these Terms
“Agreement” means the Letter of Engagement and these Terms of Trade;
“Company” means Ryan’s Kitchen (a division of REB Holdings Limited);
“Client” means the person(s) described or referred to on the Letter of Engagement which these Terms form part, or (if applicable) the person(s) identified as such on any document which incorporates these Terms;
“Fee” or “Fees” means the cost of provision of the Goods and Services agreed between the Company and the Client, subject to any variation in accordance with these Terms and, unless specifically agreed otherwise in writing, is expressed exclusive of GST and any other applicable taxes and duties.
“Goods” means all present and after acquired kitchen materials, accessories, wood, hardware and wood products and associated products supplied by the Company to the client from time to time as part of the Services and under this Agreement.
Unless the context requires otherwise, Goods shall include all proceeds of sale of such Goods and any objects, products or mass which the goods subsequently become part of.
“Intellectual Property” means all statutory, common law and other proprietary right, and any interest in any copyright, designs, drawings, plans, specifications, trade mark, trade name, inventions, know how, procedures and other technical information (whether protectable by registration or not) and including, where any such rights are obtained or enhanced by registrations, any registration of such rights.
“PPSA” means the Personal Property Securities Act 1999;
“Services” means the services of kitchen design and installation described in the attached Letter of Engagement provided by the Company to the Client;
“Terms” means these Terms of Trade.
- 3. PROVISION OF SERVICES
3.1. The Company will provide the Goods and perform the Services exercising a reasonable degree of skill, care and diligence expected of a competent professional.
3.2. The Client is to provide the Company with all necessary information (including budget and timetable if applicable) to enable the Company to clearly understand the Client’s requirements in order for the Company to provide the Goods and Services.
3.3. The Company will endeavour to complete the work within the time specified in the agreed timetable. However the Company cannot take responsibility for the work undertaken by other subcontractors involved.
- 4. VARIATIONS
4.1. Any requested variation to the Goods and Services outlined in the attached Letter of Engagement must be notified in writing by the Client. Upon approval of such variation(s) by the Company, the variations will constitute an amendment to this Agreement, The Client
4.2. agrees that any variations may result in additional costs and the Client shall be responsible for any additional costs resulting from such variations.
4.3. Should the Client request the Company to work overtime or extra shifts, the Fee will be adjusted to reflect the increase in cost caused thereby based on the excess rates paid and working hours recorded.
- 5. ASSIGNMENT OF WORK
5.1. The Company reserves the right to assign other subcontractors to provide the Goods and undertake the Services to ensure quality and on-time completion.
- 6. FEE AND PAYMENT
6.1. The Client shall pay the Fee to the Company for the Goods and Services as detailed in the attached Letter of Engagement.
6.2. The Company shall issue an invoice to the Client for the Goods and Services upon completion of Services based upon the agreed Fee.
6.3. A deposit comprising 40% of the estimate price must be paid prior to commencement of any work by the Company with a Progress Payment of 50% due before any Goods leave the factory. Final payment of 10% is required on completion of job.
6.4. Design package will incur a fee of $250.00 (GST incl) deductible on acceptance of quote.
6.5. The Company reserves the right to charge the Client interest on any moneys due but unpaid under the Agreement which interest will be calculated on a daily basis at a rate equal to 2% per month. Interest is payable from the date payment was due until the date the Company actually receives payment. The Company’s right to charge interest is without prejudice to any of the Company’s other rights, powers or remedies arising after the Client’s payment default.
6.6. If payment of any invoice(s) is overdue for more than 3 months the Company may, at its discretion, cancel this Agreement with the Client and discontinue from providing any further Services until the Client has discharged all outstanding indebtedness to the Company.
6.7. No credit shall be extended on overdue accounts, except by prior written agreement with Company.
6.8. Payment of all moneys shall be made without set-off or deduction of any kind.
- 7. INTELLECTUAL PROPERTY/ COPYRIGHT
7.1. Copyright and Intellectual Property in all designs, drawings, plans, specifications and other technical information developed by the Company in the provision of the Services shall be vested in the Company. The Client shall have no right to use any of these designs, drawings, plans, specifications or other technical information where any or all of the Fees (and disbursements) payable to the Company have not been paid in full.
7.2. The Client will acquire ownership of copyright upon payment of all Fee(s)s due to the Company in full.
7.3. The Company is entitled to retain copies of all designs, drawings, plans, specifications and other technical information or documentation for its own purposes. The Company shall also be entitled to destroy the same at any time.
- 8. RISK
8.1. All risk in and for the Goods shall pass to the Client on delivery and installation by the Company.
8.2. If any of the Goods are damaged or destroyed prior to property in them passing to the Client, the Company is entitled without prejudice to any of its other rights or remedies under the Agreement (including the right to receive payment of the Fee), to receive all insurance proceeds payable for the Goods. This applies whether or not the Fee has become payable under the Agreement. The production of the Agreement (including these Terms) by the Company is sufficient evidence of the Company’s right to receive the insurance proceeds without the need for any person dealing with the Company to make further enquiries.
- 9. PROPERTY
9.1. Property in, ownership of and title to the Goods shall not pass to the Client until the Client pays the Fee(s) in full and all other amounts owing under the Agreement.
9.2. Until all moneys have been paid the Client undertakes to:
9.2.1. Hold the Goods supplied as fiduciary for the Company and will only deal with them as agent for and on behalf of the Company (but will not hold itself out as the Company’s agent to any third parties.
9.2.2. To authorise the Company’s agent to enter the Client’s premises to remove any Goods supplied and resell them if an Event of Default occurs or the Company reasonably believes an Event of Default may occur. Such authority is irrevocable;
9.2.3. If any of the Goods become part of a product or mass (through or by whatever process) such that the identity of those Goods is lost in the product or mass, the security interest created by this clause continues in the product or mass in accordance with the PPSA;
9.2.4. If any Goods are installed in, or affixed to and become an accession to, other goods, the security interest continues in the accession in accordance with the PPSA.
- 10. RETURN OF GOODS
10.1. Except as provided in this clause, the Client is not entitled to return the Goods to the Company for any reason. For defective Goods which the Client is entitled to reject, the Company’s liability is limited to either (as the Company discretion) repairing or replacing the Goods, or refunding the price provided that:
10.1.1. The Client must notify the Company in writing within 7 days of delivery that the Goods are defective;
10.1.2. The Company is given a reasonable opportunity to investigate the Client’s claim;
10.1.3. The Company will not be liable for Goods which have been tampered with or modified without the Company’s approval or which have not been stored or used in a property manner.
- 11. DEFAULT
11.1. In the event of a breach by the Client (“Default Event”) without prejudice to any other rights, powers or remedies the Company may have:
11.1.1. The Company may suspend or terminate the supply of Goods to the Client and any of its other obligations under the Agreement, or cancel all or any part of any order with the Company which remains unperformed;
11.1.2. All Fee(s) owing shall immediately become due and payable notwithstanding that the due date for payment has not arisen; and
11.1.3. The Company may enforce any security interest granted to it by the Client.
11.2. The Client agrees that, at any time after a Default Event has occurred or at any time if any Goods are at risk, the Company may:
11.2.1. Take possession of any Goods; and/or
11.2.2. Sell or dispose of any Goods in such manner and generally on such terms and conditions as the Company thinks fit, and, in each case, otherwise do anything the Client could do in relation to the Goods. The Company and the Client agree that section 109(1) of the PPSA is contracted out in respect of particular Goods if and only for so long as the Company is not the secured party with priority over all other secured parties in respect of those Goods. As agent for the Client, the Company (and its employees and agents) may, without prior notice, enter upon any land or premises where the Company believes the Goods are kept in order to take possession of and/or remove them. The Client agrees to procure all other rights (including consents) necessary to enable, and to indemnify the Company (and its employees and agents) against any liability incurred in connection with, such entry, taking of possession and removal.
- 12. PPSA
12.1.1. The Client acknowledges and agrees that:
18.104.22.168. By assenting to these Terms, the Client grants a security interest (by virtue of the retention of title clause in clause 10 of these Terms) to the Company in all Goods supplied by the Company to the Client (if any) and all after acquired Goods supplied by the Company to the Client (or for the Client’s account); and
22.214.171.124. These Terms shall apply notwithstanding anything, express or implied, to the contrary contained in the Agreement.
12.2. Financing Statement:
12.2.1. The Client undertakes to:
126.96.36.199. Sign any further documents and/or provide any further information (which information the Client warrants to be complete, accurate and up-to-date in all respects) which the Company may reasonably require to enable registration of a financing statement or financing change statement on the Personal Property Securities Register;
188.8.131.52. Not register a financing change statement or a change demand in respect of the Goods (as those terms are defined in the PPSA) without the Company’s prior written consent; and
184.108.40.206. Give the Company not less than 14 days prior written notice of any proposed change in the Client’s name and/or any other change in its details (including, but not limited to, changes in address, facsimile number, trading name or business practice);
220.127.116.11. Not register or agree to register any financing statement granting security over the Goods without the prior express written authority of the Company.
12.3.1. The Client waives its right to receive a verification statement in respect of any financing statement or financing change statement relating to the security interest.
12.4. Contracting Out:
12.4.1. The Client agrees that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms and, contract out of such sections.
12.4.2. To the maximum extent permitted by law the Client waives its rights and, contracts out of its rights under the sections referred to in section 148 and 107(2)(Court) to (3) and (g) to (i) of the PPSA.
- 13. FORCE MAJEURE
13.1. The Company shall not be liable for any failure or delay in delivering the Goods and/ or Services resulting from circumstances beyond its reasonable control, including, without limitation: default by third parties; strikes and labour unrest; war; acts of terrorism; government or regulatory intervention; fire; flood; accident; epidemics or pandemics; natural disaster; or any other event interpreted under New Zealand law as an “Act of God”. If Company invokes force majeure, it shall do all reasonable things within its power to end the circumstances causing the force majeure and to mitigate any losses that the Client may suffer as a consequence thereof. However, the Company shall not be liable for any such losses.
- 14. TERMINATION
14.1. This Agreement will continue until the Goods have been installed and the Services completed by the Company. [The Company may terminate this Agreement by giving 30 days written notice to the Client of its intention to terminate].
14.2. Upon termination, any part of the Company’s Fee for work completed up to the date of termination together with any other monies owing shall forthwith become due and payable. Any such termination shall be without prejudice to any claim or right the Company may otherwise possess. The Company will not be liable for any damage or loss arising directly or indirectly in connection with the Services being terminated as a result of the Client’s default.
- 15. DISPUTE RESOLUTION
15.1. Should a dispute arise in relation to the Agreement the Company and the Client must notify the other party in writing, detailing the problems. An attempt in good faith to resolve the issues must be made by both parties. Should a resolution not be achieved, the matter shall be referred to mediation. A notice requiring mediation must be issued in writing by either party within 30 working days of the notification of the dispute.
15.2. The Company and the Client shall endeavour to agree on a mediator. Each party shall be responsible for its own costs in the mediation and share the costs of the mediator. The mediator’s decision shall be binding, unless either party notifies the other within 10 working days that they reject the mediator’s decision. If mediation has not settles the dispute, the matter shall be submitted to the arbitration of an arbitrator who shall conduct the proceedings in accordance with the Arbitration Act 1996. The Arbitrators decision is binding.
- 16. SEVERABILITY
16.1. If any part of this Agreement (including these Terms) is held by any court to be illegal, void or unenforceable, such determination shall not impair the enforceability of the remaining parts of this Agreement.
- 17. GUARANTEE
17.1. In consideration of the Company providing the Goods and Services to the Client, the Guarantor guarantees payment of all moneys and the performance by the Client of these Terms and indemnities the Company against any loss the Company might suffer as a result of any breach or non payment by the Client.
17.2. The Guarantor covenants with the Company that no release delay or other indulgence given by the Company to the Client or any other thing whereby the Guarantor would have been released had the Guarantor been merely a surety shall release prejudice or affect the liability of the Guarantor as a Guarantor or as an indemnifier, and as between the Guarantor and the Company, the Company shall be under no obligation to take proceedings against the Client before taking proceedings against the Guarantor and should there be more than one Guarantor their liability under this guarantee shall be joint and several.
17.3. The Guarantor acknowledges that this is a continuing guarantee and shall remain in full force and effect for all purchases of goods and services made by the Client either now or in the future.
18. GOVERNING LAW
18.1. These Terms shall be governed by the laws of New Zealand and the parties agree to submit to the exclusive jurisdiction of New Zealand Courts.