TRUE NORTH MANAGED SERVICES (True North)

TERMS & CONDITIONS OF TRADE

 

  1. The Customer confirms and accepts that any supplies made by True North to the Customer shall be made upon the terms and conditions of trade contained herein, as may be amended by notice in writing from time to time by True North, and that those terms and conditions of sale have been read and understood by or for and on behalf of the Customer.
  2. The Customer agrees that pending payment in full for the goods, the Customer holds the goods as fiduciary bailee and agent for True North, and True North shall retain ownership of the goods or any proceeds of on-sale.
  3. The Customer will grant a security interest in any goods supplied pursuant to these Terms and Conditions of Trade, in respect of which True North may register a financing statement pursuant to the Personal Property Securities Act 1999. In the event that payment for the goods is not made on time, True North may repossess and sell such goods and/or any other goods which have been made by using the goods supplied, in order to satisfy any outstanding liability.
  4. The Customer will, upon request by True North, execute all documents and do all things necessary to enable True North to create the security interest pursuant hereto.
  5. The Purchaser/the Guarantor(s) shall:
    • Immediately notify True North in writing of any change in name;
    • Provide any information True North reasonably requires to complete a financing change statement;
    • Waive any right to receive a copy of a verification statement under the Personal Property Securities Act 1999.
    • The Customer and the Guarantor(s) agree that these terms and conditions constitute a Security Agreement for the purposes of the Personal Properties Securities Act 1999, and that they have received a copy of this Agreement.
  6. The provisions of the Consumer Guarantees Act 1993 shall not apply to any supply of goods by True North to the Customer for business purposes in terms of Section 2 and/or Section 43 of the Consumer Guarantees Act 1993.
  7. True North does not provide any guarantees or warranties EXCEPT as expressly confirmed by True North in writing.
  8. Personal information of whatsoever nature and in respect of whomsoever collected by or held by True North (whether by virtue of this application or otherwise) is provided and may be held, used and disclosed to enable True North to process this or any other application, to ascertain at any time the credit worthiness of the Customer, and to obtain at any time credit reports, character references or credit statements to administer the Customer’s trade account with True North, to enable True North to notify and credit or reference agent of applications for credit, or in the event of any default on the part of the Customer, to enable True North to provide to True North information concerning products and services, to enable True North to sell or assign to any purposes any obligation/debt the Customer has to True North, and to enable True North to communicate with the Customer/the Guarantor(s).
  9. The Customer, and the Guarantor(s), authorise True North to obtain at any time from any person or entity whatsoever any information True North may require to process and/or accept and/or maintain any credit application or trade account which True North may make or have with True North or to perform or complete any of the other purposes for which information has been provided to True North by the Customer/the Guarantor(s). The Customer and/or the Guarantor(s) hereby authorise any such person to release to True North any information which that person holds concerning the Customer/the Guarantor(s).
  10. For the purposes of this application and these Terms and Conditions of Trade, the “goods” shall include any goods, services, information, designs, printed or electronic material provided to the Customer by True North of whatsoever nature.
  11. All and any printing plates, stereos, artwork and other equipment and/or electronic programmes produced by True North for the specific use in the manufacture of the goods for the Customer remain the property of True North at all times, unless the costs thereof (including all development costs relating thereto) have been fully paid to True North by the Customer.
  12. The Customer shall make payment of the purchase price, plus Goods and Services Tax indicated on any invoice, order form, or other similar documentation issued by True North, on or before the 20 day of the month immediately following the date of such invoice.
  13. In the event that payment is not made, in full, in accordance with the provisions of clause 11, interest shall accrue and be payable by the Customer to True North at a rate equivalent to True North’s bank’s unsecured commercial overdraft facility PLUS a margin of 4% per annum, such interest accruing at a daily rate from and including the date immediately following the due date for payment, until and including the date upon which all outstanding amounts are paid (including interest).
  14. Payments by the Customer shall be apportioned by True North to outstanding accounts in such amounts and in such order as True North may determine in its sole discretion.
  15. Where the Customer wishes to return any goods for any reason, the Customer must apply in writing to True North within 14 days from the date of delivery, for True North’s written consent to the return of the goods, failing which, the Customer shall be conclusively deemed to have accepted the goods and True North shall not incur any subsequent liability whatsoever.
  16. If True North gives its written consent for the return of the goods, the goods shall be returned TOGETHER WITH a credit claim, which quotes: True North’s invoice number, the date of delivery of the goods, the name of True North representative who approved the return and the reason for the return.
  17. True North may, at its own discretion entirely:
    • Give credit for the goods which have been correctly returned, in the same condition and packaging in which they were dispatched (subject to a charge for reasonable costs where goods were ordered incorrectly).
    • Subject to any express warranty given by True North, repair any damaged or defective goods or make a reasonable allowance on the purchase of replacement goods.
    • In the event that the above provisions are not strictly complied with, True North will return the goods to the Customer at True North’s expense.
  18. Notwithstanding any other provision of these Terms and Conditions of Trade, or the law, risk and the goods shall pass from True North to the Purchaser when the goods are delivered to the Customer.
  19. Property and title in the goods (including where the goods have been incorporated into other goods but remain distinct and separately identifiable) shall remain with True North and shall only pass from True North to the Customer when True North/the Guarantor(s) have discharged all outstanding indebtedness to True North.
  20. If the Customer sells the goods before discharging its indebtedness to True North, the Customer will be deemed to have done so as agent for True North and the proceeds of such sale shall be the property of True North. The Customer shall hold the proceeds on Trust for True North in a separate account and repay such amount immediately if required by True North.
  21. In the event of any default by the Customer of these Terms and Conditions of Trade, in addition to any other right or remedy available to True North pursuant to these terms and conditions of trade, or at general law, True North shall be entitled to enter on and into any premises or property occupied by the Customer or any property on which the goods are stored or held, to inspect, search for, and remove the goods supplied, and True North shall not be liable to the Customer or any third party for any damage of any kind whatsoever which may result from the exercise of its rights under this clause. True North shall be entitled to resell the goods on commercially reasonable terms and apply the proceeds derived in or towards the payment of any amount due and payable by the Customer to True North, and all costs and expenses of or incurred by True North as a result of and incidental to such action.
  22. Where the Customer is in default, True North may, in addition to any other rights contained in these Terms and Conditions of Trade or at general law, appoint a receiver in respect of the goods.
  23. The liability of True North to the Customer in respect of the goods shall be limited, at all times, to the purchase price of the goods in respect of which such liability arises and no warranty or condition shall be implied against True North by any statute, at common law, or otherwise.
  24. These Terms and Conditions of Trade may be varied at any time(s) by True North by notice in writing to the Customer.
  25. True North shall not be liable for any delay in production or delivery of goods directly or indirectly caused by acts of God, fire, riot, war, acts of terrorism, embargo, strike, labour dispute, theft, delays in delivery by sub-supplier, action or interference by any government or other authority or any other occurrence beyond the reasonable control of True North.
  26. This Agreement shall be governed by and construed in all respects in accordance with New Zealand Law.
  27. If any provision hereof is held to be invalid or unenforceable, the invalidity or unenforceability shall be deemed eliminated or modified to the minimum possible extent to make the remainder of these terms and conditions of trade enforceable.
  28. Failure by True North to insist upon strict performance by the Customer of any of these Terms and Conditions of Trade shall not be a waiver of any rights of True North on any subsequent occasion.
  29. The Guarantor(s) hereby acknowledge that:
    • The greatest extent possible, they hereby guarantee to True North the due performance of the Customer pursuant to these Terms and Conditions of Trade and indemnify True North against any loss True North may suffer as a result of the default of the Customer.
    • No release, delay or other indulgence given by True North to the Customer or to the Customer’s successors or assigns or any other thing whereby the Guarantor(s) would have been released had the Guarantor(s) been merely a surety, shall release prejudice or affect the liability of the Guarantor(s) as a Guarantor or as indemnifier.
    • As between the Guarantor(s) and True North, the Guarantor(s) may for all purposes be treated as the Customer and True North shall be under no obligation to take proceedings against the Customer before taking proceedings against the Guarantor(s).
    • The Guarantee herein is for the benefit of and may be enforced by any person entitled for the time being to receive or act on the part of True North.
    • Should there be more than one Guarantor, their liability under this Guarantee shall be joint and several.