1.1 All goods or services supplied by the Cliffhanger Shelving Company are on the basis set out below unless otherwise agreed in writing. In the event of any conflict between these Terms and any subsequent written contract between the parties, the terms of the subsequent written contract shall prevail.
2.1 Cliffhanger Shelving will use its reasonable skill, care and effort to achieve the Work Objectives at the Estimated Price using resources reasonably available to Cliffhanger Shelving
2.2 Cliffhanger Shelving will use its reasonable efforts to achieve the Work Objectives on or before the Estimated Completion Date but will not be liable for any delay beyond that date.
2.3 Without limiting clause 2.2, Cliffhanger Shelving will not be liable for any delay or non-performance or for exceeding the Estimated Price if it is attributable (directly or indirectly) to circumstances beyond its reasonable control.
3.1 Payment for all goods and services is due on the 20th of the month following the date of Cliffhanger Shelving’s invoice ( or by direct debit within 24 hours at the mutual agreement of both parties ). The Company may at it’s option issue a monthly interim invoice for work greater than one month’s duration.
3.2 The Customer may be required to pay interest (as well as legal costs on a Solicitor to client basis, and credit recovery costs resulting from late or non-payment) at a rate of 5% above the average monthly base commercial lending rate from time to time charged by Cliffhanger Shelving’s bank on any moneys outstanding from the due date until the date fo payment, but without prejudice to other rights or remedies in respect of the Customer’s default in failing to make payment on the due date. Interest shall be calculated monthly and shall be payable on demand.
3.3 If the Customer is in breach of these Terms or any other contract, Cliffhanger Shelving may, without prejudice to its other rights or remedies, terminate these Terms, and/or withhold or suspend the supply of goods or services under this or any other contract, and/or withdraw any certification or accreditation issued to the Customer by Cliffhanger Shelving under this or any other contract.
4. TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999 (“PPSA”)
4.1 Until all sums due to Cliffhanger Shelving by the Customer have been paid in full, the Customer expressly agrees Cliffhanger Shelving has a purchase money security interest in all Products and/or Services to secure payment of the purchase price of those Products and/or Services and any other sums owing and the Customer waves the right to receive verification of registration of this security interest on the Personal Property Securities Register.
4.2 Cliffhanger Shelving’s security interest in the Products and/or Services continues in any new Products and/or Services into which those Products and/or Services are attached, fixed or incorporated, and in any proceeds, book debts or accounts receivable arising from the sale of the Products and/or Services.
4.3 The Customer gives irrevocable authority to Cliffhanger Shelving to enter any premises occupied by the Customer or on which Products and/or Services are situated at any reasonable time after default by the Customer [or before default if Cliffhanger Shelving believes a default is likely] and to remove and repossess any Products and/or Services and any other property to which Products and/or Services are attached or in which Products and/or Services are incorporated. Cliffhanger Shelving shall not be liable for and the Customer hereby indemnifies Cliffhanger Shelving in respect of; any costs, damages, expenses or losses incurred by the Customer or any third party as a result of this action, or liability either in contract or in tort or otherwise in any way whatsoever, unless by operation of Law such liability cannot be excluded. Cliffhanger Shelving may either resell any repossessed Products and/or Services 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 Products and/or Services and credit the Customer’s account with the invoice value thereof less such sum as Cliffhanger Shelving reasonably determines on account of wear and tear, depreciation, obsolescence, loss of profit and costs.
4.4 Where Products and/or Services are retained by Cliffhanger Shelving, the Customer waives the right to receive notice under section 120 of the PPSA and to object under section 121 of the PPSA.
4.5 The following shall constitute defaults by the Customer:
a) Non payment of any sum by the due date
b) The Customer intimates that it will not pay any sum by the due date
c) Any Products and/or Services are seized by any of the Customer’s creditors or creditor and/or any such creditor or creditors intimate(s) that it/they intend(s) to seize Products and/or Services
d) Any Products and/or Services in the possession of the Customer are materially damaged while any sum due from the Customer to Cliffhanger Shelving remains unpaid
e) The Customer is bankrupted or put into liquidation or a receiver is appointed to any of the Customer’s assets or a landlord imposes distrait against any of the Customer’s assets
f) A Court judgement is entered against the Customer and remains unsatisfied for seven (7) days
g) Any material adverse change in the financial position of the Customer, or
h) If the Credit (Repossession) Act 1997 applies to any transaction between the Customer’s present and after acquired property that Cliffhanger Shelving Systems has performed Services on or to or in which Products or materials supplied or financed by Cliffhanger Shelving have been attached or incorporated.
5. WARRANTIES, LIABILITY AND INDEMNITY
5.1 Cliffhanger Shelving warrants that it shall exercise all reasonable skill, care and effort in providing any goods and services to the Customer pursuant to these Terms.
5.2 Cliffhanger Shelving is not liable for any loss of profits or any special, indirect, incidental or consequential damage, loss or injury of any kind suffered by the Customer arising directly or indirectly from any breach of Cliffhanger Shelving’s obligations under or in connection with the contract or from any cancellation of the contract or from any negligence, misrepresentation or other act or omission on the part of Cliffhanger Shelving, its servants, parent company, agents or contractors.
5.3 Subject to clauses 5.1 and 5.2. the liability of Cliffhanger Shelving, whether in contract or pursuant to any cancellation of any contract or in tort or otherwise, in respect of all claims for loss, damage or injury arising:
a) From breach of any of Cliffhanger Shelving’s obligations arising under or in connection with these Terms
b) From any cancellation of these Terms, or
c) From any negligence, misrepresentation or other act or omission by Cliffhanger Shelving, its servants, agents or contracts shall not in aggregate exceed the lesser of the total fee for the particular services or $5,000 (as the case may be)
5.4 Cliffhanger Shelving and the Customer agree that any goods supplied under these Terms are for the purposes of a business and hence the statutory guarantees of the Consumer Guarantees Act 1993 do not apply. Should those statutory guarantees apply, these Terms shall be interpreted subject to the Consumer Guarantees Act 1993.
5.5 Cliffhanger Shelving does not warrant that the manufacture of or use of goods, or use of information or methods, developed or provided under these Terms is not an infringement of the intellectual property rights of third parties.
6.1 Cliffhanger Shelving may by notice in writing to the Customer terminate Cliffhanger Shelving’s obligations under these Terms:
a) upon the provision of the goods and services to the Customer and payment of all moneys owing by the Customer under these Terms; or
b) at the option of Cliffhanger Shelving, where it appears to Cliffhanger Shelving that it is likely that the cost of achieving the Work Objectives will exceed the Estimated Price by 20% or more (provided that the Customer advises Cliffhanger Shelving within 14 days of being informed of such likelihood, that it wishes to terminate the contract); or
c) at the option of Cliffhanger Shelving, in accordance with clause 4.3; or
d) if the Customer commits any act of bankruptcy, enters into any arrangement with its creditors or (in the case of a company) does any act which would render it liable to be liquidated, or if a resolution is passed or proceedings commenced for the liquidation of the Customer or if a receiver, statutory manager or similar functionary is appointed in respect of all or any of its assets; or
e) upon mutual agreement of the parties
6.2 Termination will not affect the rights of either party in respect of any breach of these Terms in existence prior to termination.
7.1 The Customer may not assign all or any of its rights or obligations under these Terms without the prior written consent of Cliffhanger Shelving.
7.2 Cliffhanger Shelving is not deemed to have waived any provision or right unless the waiver is in writing under signature of Cliffhanger Shelving or its authorised officer and any such waiver, unless the contrary is expressly stated, applies to and operates only in a particular transaction, dealing or matter.
7.3 All notices shall be delivered by hand or be sent by facsimile, fast post or email. Any notice sent by facsimile will be deemed to have been received on the following business day in the place of receipt, any notice sent by fast post will be deemed to have been received two business days after posting and any notice sent by email will be deemed to have been received. Notices shall be given to the parties at the address, facsimile number or email addresses or such other addresses, facsimile numbers or email addresses as they may from time to time advise in writing.
7.4 These Terms constitute the entire agreement between the Customer and Cliffhanger Shelving with respect to the matters contemplated by these Terms and supersedes all previous agreements, arrangements or understandings between the Customer and Cliffhanger Shelving.
7.5 The Customer must advise Cliffhanger Shelving of any relevant safety hazards pertaining to the Services requested by the Customer and provide all relevant Material Safety Data Sheets.
7.6 If any provision of these Terms shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforce ability of the remaining provisions shall not be affected.
7.7 The Terms shall be governed by the laws of New Zealand and Cliffhanger Shelving and the Customer agree to submit to the non-exclusive jurisdiction of the Courts of New Zealand.