Credit Account Application

Definitions

1. “The Agent” means FB & WT Ruka (1991) Limited T/A Ruka Wholesale & Distributors, its successors and assigns or any person acting on behalf of and with the authority of FB & WT Ruka (1991) Limited T/A Ruka Wholesale & Distributors.
2. “Customer” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
3. “Goods” means all Goods or Services supplied by the Agent to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
4. “Price” means the Price payable for the Goods as agreed between the Agent and the Customer in accordance with clause 3 below.

Acceptance

1.  The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Products.
2. These terms and conditions may only be amended with the Agent’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and the Agent.
3. The Customer acknowledges and accepts that the supply of Products for accepted orders may be subject to availability and if, for any reason, Products are not or cease to be available, the Agent reserves the right to vary the Price with alternative Products as per clause 3.3.
4. Notwithstanding clause 2.3 the Agent also reverses the right at their discretion to introduce additional new Products as part of the Products to be supplied.
5. The Customer’s account held with the Agent may be closed by the Customer or Agent with seven (7) days notice in writing to the other party. The Agent may, without notice, close the account held in the Customer’s name in the event that the Customer does not use the account within a twelve (12) month period. The Customer agrees to settle any outstanding monies due to the Agent at the time the account is closed.

Price and Payment

1. The Price shall be as indicated on invoices provided by the Agent to the Customer in respect of the Goods supplied.
2. Time for payment for the Goods shall be of the essence and will be as stated on the Credit Account Application, or any other documentation. If no time is stated then payment will be due fourteen (14) days following the date of the invoice.
3. The Agent reserves the right to change the Price if a variation to the Agent’s quotation is requested. Any variation from the plan of scheduled Services or specifications of the Products (including, but not limited to, any variation as a result of fluctuations in currency exchange rates or increases to the Agent in the cost of taxes, levies, materials and labour) will be charged for on the basis of the Agent’s quotation and will be shown as variations on the invoice.
4. At the Agent’s sole discretion a non-refundable deposit may be required.
5.  Time for payment for the Products being of the essence, the Price will be payable by the Customer on the date/s determined by the Agent, which may be:
   (a) on delivery of the Products;
   (b) before delivery of the Products;
   (c) for certain approved Customer’s, due twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
   (d) the date specified on any invoice or other form as being the date for payment; or
   (e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by the Agent.
6.  Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Customer and the Agent.
7. Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to the Agent an amount equal to any GST the Agent must pay for any supply by the Agent under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer 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.

Delivery of Products

1. Delivery (“Delivery”) of the Products is taken to occur at the time that:
   (a) the Customer or the Customer’s nominated carrier takes possession of the Products at the Agent’s address; or
   (b) the Agent (or the Agent’s nominated carrier) delivers the Products to the Customer’s nominated address even if the Customer is not present at the address.
2. At the Agent’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
3. The Customer must take delivery by receipt or collection of the Products whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Products as arranged then the Agent shall be entitled to charge a reasonable fee for redelivery and/or storage.
4. Any time or date given by the Agent to the Customer is an estimate only. The Customer must still accept delivery of the Products even if late and the Agent will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.

Risk

1. Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
2. If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Agent is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Agent is sufficient evidence of the Agent’s rights to receive the insurance proceeds without the need for any person dealing with the Agent to make further enquiries.

Title to Goods (Including any incidental items supplied as part of any Services)

1. The Agent and the Customer agree that ownership of the Goods shall not pass until:
   (a) the Customer has paid the Agent all amounts owing to the Agent; and
   (b) the Customer has met all of its other obligations to the Agent.
2. Receipt by the Agent 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.
3. It is further agreed that:
   (a) until ownership of the Goods passes to the Customer in accordance with clause 6.1 that the Customer is only a bailee of the Goods and must return the Goods to the Agent on request.
   (b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for the Agent and must pay to the Agent the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
   (c) the Customer 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 Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for the Agent and must pay or deliver the proceeds to the Agent on demand.
   (d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Agent and must sell, dispose of or return the resulting product to the Agent as it so directs.
   (e) the Customer irrevocably authorises the Agent to enter any premises where the Agent believes the Goods are kept and recover possession of the Goods.
   (f) the Agent may recover possession of any Goods in transit whether or not delivery has occurred.
   (g) the Customer 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 the Agent.
   (h) the Agent may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.

Personal Property Securities Act 1999 (“PPSA”)

1. Upon assenting to these terms and conditions in writing the Customer 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 Incidental Items previously supplied by the Agent to the Customer (if any) and all Incidental Items that will be supplied in the future by the Agent to the Customer.
2. The Customer 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 the Agent may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
   (b) indemnify, and upon demand reimburse, the Agent for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Incidental Items charged thereby;
   (c) not register a financing change statement or a change demand without the prior written consent of the Agent.
3. The Agent and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
4. The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
5. Unless otherwise agreed to in writing by the Agent, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
6. The Customer shall unconditionally ratify any actions taken by the Agent under clauses 7.1 to 7.5.

Default and Consequences of Default

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 the Agent’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
2. If the Customer owes the Agent any money the Customer shall indemnify the Agent from and against all costs and disbursements incurred by the Agent in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Agent’s collection agency costs, and bank dishonour fees).
3. Without prejudice to any other remedies the Agent may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions the Agent may suspend or terminate the supply of Products to the Customer. The Agent will not be liable to the Customer for any loss or damage the Customer suffers because the Agent has exercised its rights under this clause.
4. Without prejudice to the Agent’s other remedies at law the Agent shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Agent shall, whether or not due for payment, become immediately payable if:
   (a) any money payable to the Agent becomes overdue, or in the Agent’s opinion the Customer will be unable to make a payment when it falls due;
   (b) the Customer 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 Customer or any asset of the Customer.

Security and Charge

1. In consideration of the Agent agreeing to supply the Goods, the Customer 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 Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
2. The Customer indemnifies the Agent from and against all the Agent’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Agent’s rights under this clause.
3. The Customer irrevocably appoints the Agent and each director of the Agent as the Customer’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 Customer’s behalf.

Cancellation

1. The Agent may cancel any contract to which these terms and conditions apply or cancel delivery of Products at any time before the Products are delivered by giving written notice to the Customer. On giving such notice the Agent shall repay to the Customer any money paid by the Customer for the Products. The Agent shall not be liable for any loss or damage whatsoever arising from such cancellation.
2. In the event that the Customer cancels delivery of Products the Customer shall be liable for any and all loss incurred (whether direct or indirect) by the Agent as a direct result of the cancellation (including, but not limited to, any loss of profits).
3. Cancellation of orders for Products made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

Privacy Act 1993

1. The Customer authorises the Agent or the Agent’s agent to:
   (a) access, collect, retain and use any information about the Customer;
   (i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer’s creditworthiness; or
   (ii) for the purpose of marketing products and services to the Customer.
   (b) disclose information about the Customer, whether collected by the Agent from the Customer directly or obtained by the Agent 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 Customer.
2. Where the Customer is an individual the authorities under clause 11.1 are authorities or consents for the purposes of the Privacy Act 1993.
3. The Customer shall have the right to request the Agent for a copy of the information about the Customer retained by the Agent and the right to request the Agent to correct any incorrect information about the Customer held by the Agent.

General

1. The failure by the Agent to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Agent’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.
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 courts of New Zealand.
3. The Agent shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Agent of these terms and conditions (alternatively the Agent’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
4. The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Agent nor to withhold payment of any invoice because part of that invoice is in dispute.
5. The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so.