“Imagin ” shall mean Imagin Plastics Limited, or any agents or employees thereof.
“Client” shall mean the Client, any person acting on behalf of and with the authority of the Client, or any person purchasing products and services from Imagin.
“Products” shall mean:
all Products of the general description specified on the front of this agreement and supplied by Imagin to the Client; and
all Products supplied by Imagin to the Client; and
all inventory of the Client that is supplied by Imagin ; and
all Products supplied by Imagin and further identified in any invoice issued by Imagin to the Client, which invoices are deemed to be incorporated into and form part of this agreement; and
all Products that are marked as having been supplied by Imagin or that are stored by the Client in a manner that enables them to be identified as having been supplied by Imagin ; and
all of the Client’s present and after-acquired Products that Imagin has performed work on or to or in which goods or materials supplied or financed by Imagin have been attached or incorporated.
The above descriptions may overlap but each is independent of and does not limit the others.
“Products” shall also mean all goods, products, services and advice provided by Imagin to the Client and shall include without limitation the supply of all goods and related items, technical advice and support and all charges for time and attendances, hire charges, insurance charges, or any fee or charge associated with the supply of Products by Imagin to the Client.
“Price” shall mean the cost of the Products as agreed between Imagin and the Client and includes all disbursements eg charges Imagin pay to others on the Client's behalf subject to clause 4 of this contract.
Any instructions received by Imagin from the Client for the supply of Products shall constitute a binding contract and acceptance of the terms and conditions contained herein.
COLLECTION AND USE OF INFORMATION
The Client authorises Imagin to collect, retain and use any information about the Client, for the purpose of assessing the Client’s credit worthiness, enforcing any rights under this contract, or marketing any Products provided by Imagin to any other party.
The Client authorises Imagin to disclose any information obtained to any person for the purposes set out in clause 1.6.
Where the Client is a natural person the authorities under clauses 1.6 and 1.7 are authorities or consents for the purposes of the Privacy Act 1993.
Where no price is stated in writing or agreed to orally the Products shall be deemed to be sold at the current amount as such Products are sold by Imagin 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 Products that is beyond the control of Imagin between the date of the contract and delivery of the Products.
Payment for Products 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 Imagin in the enforcement of any rights contained in this contract shall be paid by the Client, 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.
Where a quotation is given by Imagin for Products:
Unless otherwise agreed the quotation shall be valid for thirty (30) days from the date of issue; and
The quotation shall be exclusive of goods and services tax unless specifically stated to the contrary;
Imagin reserve the right to alter the quotation because of circumstances beyond its control.
Where Products are required in addition to the quotation the Client agrees to pay for the additional cost of such Products.
The Client authorises Imagin to contract either as principal or agent for the provision of Products that are the matter of this contract.
Where Imagin enters into a contract of the type referred to in clause 1.13 it shall be read with and form part of this agreement and the Client agrees to pay any amounts due under that contract.
TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999)
Title in any Products supplied by Imagin passes to the Client only when the Client has made payment in full for all Products provided by Imagin and of all other sums due to Imagin by the Client on any account whatsoever. Until all sums due to Imagin by the Client have been paid in full, Imagin has a security interest in all Products.
If the Products are attached, fixed, or incorporated into any property of the Client, by way of any manufacturing or assembly process by the Client or any third party, title in the Products shall remain with Imagin until the Client has made payment for all Products, and where those Products are mixed with other property so as to be part of or a constituent of any new Products, title to these new Products shall deemed to be assigned to Imagin as security for the full satisfaction by the Client of the full amount owing between Imagin and Client.
The Client gives irrevocable authority to Imagin to enter any premises occupied by the Client or on which Products are situated at any reasonable time after default by the Client or before default if Imagin believes a default is likely and to remove and repossess any Products and any other property to which Products are attached or in which Products are incorporated. Imagin shall not be liable for any costs, damages, expenses or losses incurred by the Client 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. Imagin may either resell any repossessed Products and credit the Client’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 credit the Client’s account with the invoice value thereof less such sum as Imagin reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.
Where Products are retained by Imagin pursuant to clause 1.17 the Client 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 Client:
Non payment of any sum by the due date.
The Client intimates that it will not pay any sum by the due date.
Any Products are seized by any other creditor of the Client or any other creditor intimates that it intends to seize Products.
Any Products in the possession of the Client are materially damaged while any sum due from the Client to Imagin remains unpaid.
The Client is bankrupted or put into liquidation or a receiver is appointed to any of the Client’s assets or a landlord distains against any of the Client’s assets.
A Court judgment is entered against the Client and remains unsatisfied for seven (7) days.
Any material adverse change in the financial position of the Client.
If the Credit Repossession Act applies to any transaction between the Client and Imagin , the Client has the rights provided in that Act despite anything contained in these terms and conditions of trade.
The Client agrees that Imagin may exercise a general lien against any Products or property belonging to the Client that is in the possession of Imagin for all sums outstanding under this contract and any other contract to which the Client and Imagin are parties.
If the lien is not satisfied within seven (7) days of the due date Imagin may, having given notice of the lien at its option either:
Remove such Products and store them in such a place and in such a manner as Imagin shall think fit and proper and at the risk and expense of the Client; or
Sell such Products or part thereof upon such terms as it shall think fit and apply the proceeds in or towards discharge of the lien and costs of sale without being liable to any person for damage caused.
No claim relating to Products will be considered unless made within seven (7) days of delivery.
The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon Imagin 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 Imagin , Imagin ’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 1.22 Imagin shall not be liable for:
Any loss or damage of any kind whatsoever, arising from the supply of Products provided by Imagin to the Client, including consequential loss whether suffered or incurred by the Client 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 Products provided by Imagin to the Client; and
The Client shall indemnify Imagin 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 Imagin or otherwise, brought by any person in connection with any matter, act, omission, or error by Imagin its agents or employees in connection with the Products.
If, contrary to the disclaimer of liability contained in these terms and conditions of trade Imagin is deemed to be liable to the Client, following and arising from the supply of Products by it to the Client then it is agreed between Imagin and the Client that such liability is limited in its aggregate to $500.00.
Manufacturer’s warranty applies where applicable.
CONSUMER GUARANTEES ACT
The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Client acquires Products from Imagin for the purposes of a business in terms of section 2 and 43 of that Act.
Imagin 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 Imagin 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 Imagin 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.