Terms of Trade
1.1 “TK Ltd” means Timber King Limited, its successors and assigns or any person acting on behalf of and with the authority of Timber King Limited.
1.2 “Client” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 “Goods” means all Goods or Services supplied by TK Ltd to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Goods as agreed between TK Ltd and the Client in accordance with clause 4 below.
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with TK Ltd’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and TK Ltd.
3. Change in Control
3.1 The Client shall give TK Ltd not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by TK Ltd as a result of the Client’s failure to comply with this clause.
4. Price and Payment
4.1 At TK Ltd’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by TK Ltd to the Client; or
(b) TK Ltd’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of twenty (20) days.
4.2 TK Ltd reserves the right to change the Price if a variation to TK Ltd’s quotation is requested.
4.3 At TK Ltd’s sole discretion, a non-refundable deposit may be required.
4.4 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by TK Ltd, which may be:
(a) on delivery of the Goods;
(b) by way of instalments in accordance with TK Ltd’s payment schedule;
(c) the date specified on any invoice or other form as being the date for payment;
(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by TK Ltd.
4.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card, or by any other method as agreed to between the Client and TK Ltd.
4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to TK Ltd an amount equal to any GST TK Ltd must pay for any supply by TK Ltd under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
5. Delivery of Goods
5.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that TK Ltd (or TK Ltd’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address. 5.2 At TK Ltd’s sole discretion, the cost of delivery is in addition to the Price.
5.3 The Client must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then TK Ltd shall be entitled to charge a reasonable fee for redelivery and/or storage.
5.4 TK Ltd may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.5 Any time or date given by TK Ltd to the Client is an estimate only. The Client must still accept delivery of the Goods even if late and TK Ltd will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
6.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, TK Ltd is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by TK Ltd is
sufficient evidence of TK Ltd’s rights to receive the insurance proceeds without the need for any person dealing with TK Ltd to make further enquiries.
6.3 If the Client requests TK Ltd to leave Goods outside TK Ltd’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
6.4 Timber is a natural product and as such may exhibit variations in texture, shade, colour, surface, finish, markings, veining, and contain natural fissures, occlusions, and indentations. Whilst TK Ltd will make every effort to match sales
samples to the supplied Goods TK Ltd accepts no liability whatsoever where such samples differ to the Goods supplied.
6.5 The Client acknowledges that Goods supplied may:
(a) fade or change colour over time; and
(b) expand, contract or distort as a result of exposure to heat, cold, weather; and
(c) mark or stain if exposed to certain substances; and
(d) be damaged or disfigured by impact or scratching.
7.1 TK Ltd and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid TK Ltd all amounts owing to TK Ltd; and
(b) the Client has met all of its other obligations to TK Ltd.
7.2 Receipt by TK Ltd of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
7.3 It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause
7.1 that the Client is only a bailee of the Goods and must return the Goods to TK Ltd on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for TK Ltd and must pay to TK Ltd the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must
hold the proceeds of any such act on trust for TK Ltd and must pay or deliver the proceeds to TK Ltd on demand.
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of TK Ltd and must sell, dispose of or return the resulting product to TK Ltd as it so directs.
(e) the Client irrevocably authorises TK Ltd to enter any premises where TK Ltd believes the Goods are kept and recover possession of the Goods.
(f) TK Ltd may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of TK Ltd.
(h) TK Ltd may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
8. Personal Property Securities Act 1999 (“PPSA”)
8.1 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Goods previously supplied by TK Ltd to the Client (if any) and all Goods that will be supplied in the future by TK Ltd to the Client.
8.2 The Client undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which TK Ltd may reasonably require to register a financing statement or financing change
statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, TK Ltd for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
(c) not register a financing change statement or a change demand without the prior written consent of TK Ltd; and
(d) immediately advise TK Ltd of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
8.3 TK Ltd and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
8.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
8.5 Unless otherwise agreed to in writing by TK Ltd, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA
8.6 The Client shall unconditionally ratify any actions taken by TK Ltd under clauses 8.1 to 8.5.
9. Security and Charge
9.1 In consideration of TK Ltd agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
9.2 The Client indemnifies TK Ltd from and against all TK Ltd’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising TK Ltd’s rights under this clause.
9.3 The Client irrevocably appoints TK Ltd and each director of TK Ltd as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 9 including, but not limited to, signing any document on the Client’s behalf.
10. Client’s Disclaimer
10.1 The Client hereby disclaims any right to rescind, or cancel any contract with TK Ltd or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by TK Ltd and the Client acknowledges that
the Goods are bought relying solely upon the Client’s skill and judgment.
11.1 The Client shall inspect the Goods on delivery and shall within three (3) days of delivery (time being of the essence) notify TK Ltd of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford TK Ltd an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which TK Ltd has agreed in writing that the Client is entitled to reject, TK Ltd’s liability is limited to either (at TK Ltd’s discretion) replacing the Goods or repairing the Goods.
12.1 Returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 11.1; and
(b) TK Ltd has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Client’s cost within five (5) days of the delivery date; and
(d) TK Ltd will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with
all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
12.2 TK Ltd may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of fifteen percent (15%) of the value of the returned Goods plus any freight.
13.1 For Goods not manufactured by TK Ltd, the warranty shall be the current warranty provided by the manufacturer of the Goods. TK Ltd shall not be bound by nor be responsible for any term, condition, representation or warranty other than
that which is given by the manufacturer of the Goods
14. Consumer Guarantees Act 1993
14.1 If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by TK Ltd to the Client.
15. Default and Consequences of Default
15.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at TK Ltd’s sole discretion such interest shall compound
monthly at such a rate) after as well as before any judgment.
15.2 If the Client owes TK Ltd any money the Client shall indemnify TK Ltd from and against all costs and disbursements incurred by TK Ltd in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, TK Ltd’s collection agency costs, and bank dishonour fees).
15.3 Without prejudice to any other remedies TK Ltd may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions TK Ltd may suspend or terminate the supply of Goods to the Client. TK Ltd will not be liable to the Client for any loss or damage the Client suffers because TK Ltd has exercised its rights under this clause.
15.4 Without prejudice to TK Ltd’s other remedies at law TK Ltd shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to TK Ltd shall, whether or not due for payment, become immediately payable if:
(a) any money payable to TK Ltd becomes overdue, or in TK Ltd’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
16.1 TK Ltd may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice TK Ltd shall repay to the Client
any money paid by the Client for the Goods. TK Ltd shall not be liable for any loss or damage whatsoever arising from such cancellation.
16.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by TK Ltd as a direct result of the cancellation (including, but not limited to, any loss of profits).
16.3 Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
17. Privacy Act 1993
17.1 The Client authorises TK Ltd or TK Ltd’s agent to:
(a) access, collect, retain and use any information about the Client;
(i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or (ii) for the purpose of marketing products and services to the Client.
(b) disclose information about the Client, whether collected by TK Ltd from the Client directly or obtained by TK Ltd from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.
17.2 Where the Client is an individual the authorities under clause 17.1 are authorities or consents for the purposes of the Privacy Act 1993.
17.3 The Client shall have the right to request TK Ltd for a copy of the information about the Client retained by TK Ltd and the right to request TK Ltd to correct any incorrect information about the Client held by TK Ltd.
18. Unpaid Seller’s Rights
18.1 Where the Client has left any item with TK Ltd for repair, modification, exchange or for TK Ltd to perform any other service in relation to the item and TK Ltd has not received or been tendered the whole of any moneys owing to it by the
Client, TK Ltd shall have, until all moneys owing to TK Ltd are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
18.2 The lien of TK Ltd shall continue despite the commencement of proceedings, or judgment for any moneys owing to TK Ltd having been obtained against the Client.
19.1 The failure by TK Ltd to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect TK Ltd’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
19.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the Auckland Courts of New Zealand.
19.3 TK Ltd shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by TK Ltd of these terms and conditions (alternatively
TK Ltd’s liability shall be limited to damages which under no circumstances shall exceed the Price).
19.4 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by TK Ltd nor to withhold payment of any invoice because part of that invoice is in dispute.
19.5 TK Ltd may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
19.6 The Client agrees that TK Ltd may amend these terms and conditions at any time. If TK Ltd makes a change to these terms and conditions, then that change will take effect from the date on which TK Ltd notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for TK Ltd to provide Goods to the Client.
19.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
19.8 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.