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3Way Solutions Ltd Terms of Trade:
1.1 3Way Solutions shall mean 3Way Solutions Ltd , or any agents or employees thereof.
1.2 “Customer”shall mean the Customer, any person acting on behalf of and with the authority of the Customer, or any person purchasing products and services from 3way Solutions Ltd.
1.3 “Goods” shall mean:
1.3.1 all Goods of the general description specified on the front of this agreement and supplied by 3Way Solutions Ltd to the Customer; and
1.3.2 all Goods supplied by 3Way Solutions to the Customer; and
1.3.3 all inventory of the Customer that is supplied by 3Way Solutions Ltd; and
1.3.4 all Goods supplied by 3Way Solutions Ltd and further identified in any invoice issued by 3Way Solutions Ltd to the Customer, which invoices are deemed to be incorporated into and form part of this agreement; and
1.3.5 all Goods that are marked as having been supplied by 3Way Solutions Ltd or that are stored by the Customer in a manner that enables them to be identified as having been supplied by 3Way Solutions Ltd; and
1.3.6 all of the Customer’s present and after-acquired Goods that 3Way Solutions has performed work on or to or in which goods or materials supplied or financed by 3Way Solutions have been attached or incorporated.
1.3.7 The above descriptions may overlap but each is independent of and does not limit the others.
1.4 “Goods and Services” shall mean all goods, products, services and advice provided by 3Way Solutions to the Customer
1.5 “Price” shall mean the cost of the Goods and Services as agreed between 3Way Solutions and the Customer and includes all disbursements eg charges 3Way Solutions pay to others on the Customer’s behalf subject to clause 4 of this contract.
2.1 Any instructions received and agreed to by 3Way Solutions from the Customer for the supply of Goods and Services shall constitute a binding contract and acceptance of the terms and conditions contained herein.
- COLLECTION AND USE OF INFORMATION
3.1 The Customer authorises 3Way Solutions to collect, retain and use any information about the Customer, for the purpose of assessing the Customer’s credit worthiness, enforcing any rights under this contract, or marketing any Goods and Services provided by 3Way Solutions to any other party.
3.2 The Customer authorises 3Way Solutions to disclose any information obtained to any person for the purposes set out in clause 3.1.
3.3 Where the Customer is a natural person the authorities under clauses 3.1 and 3.2 are authorities or consents for the purposes of the Privacy Act 1993.
4.1 Where no price is stated in writing or agreed to orally the Goods and Services shall be deemed to be sold at the current amount as such Goods and Services are sold by 3Way Solutions at the time of the contract.
4.2 The price may be increased by the amount of any reasonable increase in the cost of supply of the Goods and Services that is beyond the control of 3Way Solutions between the date of the contract and delivery of the Goods and Services.
- PROGRESS PAYMENTS
5.1 The Customer agrees that 3Way Solutions may invoice the Customer for progress payments at the end of each calendar month.
5.2 The due date for any progress payment is the 20th day of the month following the date of any invoice.
5.3 If the work completed is construction work as defined in the Construction Contracts Act 2002 (the CCA):
5.3.1 The parties agree pursuant to s 14 of the CCA:
22.214.171.124. A progress claim may be made by 3Way Solutions at the end of each calendar month;
126.96.36.199. The amount of any progress claim will be calculated by 3Way Solutions based on materials purchased and labour expended during the relevant period and the amount may vary from time to time;
188.8.131.52. The date upon which payment of any progress claim becomes due will be the 20th day of the month following the date of the progress claim.
5.3.2 3Way Solutions may also serve a payment claim pursuant to s 20 of the CCA upon the Customer for payment;
5.3.3 In the event of non-payment by the Customer, 3Way Solutions may refer the matter to adjudication as provided for in the CCA (notwithstanding clause 19.7)
6.1 Payment for Goods and Services shall be made in full on or before the 20th day of the month following the date of the invoice (“the due date”).
6.2 Interest may be charged on any amount owing after the due date at the rate of 2.5% per month or part month.
6.3 Any expenses, disbursements and legal costs incurred by 3Way Solutions in the enforcement of any rights contained in this contract shall be paid by the Customer, including any reasonable solicitor’s fees or debt collection agency fees.
6.4 Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
6.5 A deposit may be required.
6.6 Payment shall not be withheld by the Purchaser by reason of the existence of any ‘pay when or if paid’ provision of any contract to which the Purchaser is a party.
7.1 Where a quotation is given by 3Way Solutions for Goods and Services:
7.1.1 Unless otherwise agreed the quotation shall be valid for thirty (30) days from the date of issue; and
7.1.2 The quotation shall be exclusive of goods and services tax unless specifically stated to the contrary;
7.1.3 3Way Solutions reserves the right to alter the quotation because of circumstances beyond its control.
7.2 Where Goods and Services are required in addition to the quotation the Customer agrees to pay for the additional cost of such Goods and Services.
8.1 The Goods and Services remain at 3Way Solutions’ risk until delivery to the Customer.
8.2 Delivery of Goods and Services shall be deemed complete when 3Way Solutions gives possession of the Goods and Services directly to the Customer or possession of the Goods and Services is given to a carrier, courier, or other bailee for purposes of transmission to the Customer.
8.3 The time agreed for delivery shall not be an essential term of this contract unless the Customer gives written notice to 3Way Solutions making time of the essence.
8.4 Where 3Way Solutions delivers Goods and Services to the Customer by instalments and
3Way Solutions fails to deliver or supply one or more instalments the Customer shall not have the right to cancel the contract but shall have the right to claim compensation as a severable breach.
9.1 The Customer authorises 3Way Solutions to contract either as principal or agent for the provision of Goods and Services that are the matter of this contract.
9.2 Where 3Way Solutions enters into a contract of the type referred to in clause 9.1 it shall be read with and form part of this agreement and the Customer agrees to pay any amounts due under that contract.
- TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999)
10.1 Title in any Goods and Services supplied by 3Way Solutions passes to the Customer only when the Customer has made payment in full for all Goods and Services provided by 3Way Solutions and of all other sums due to 3Way Solutions by the Customer on any account whatsoever. Until all sums due to 3Way Solutions by the Customer have been paid in full, 3Way Solutions has a security interest in all Goods and Services.
10.2 If the Goods and Services are attached, fixed, or incorporated into any property of the Customer, by way of any manufacturing or assembly process by the Customer or any third party, title in the Goods and Services shall remain with 3Way Solutions until the Customer has made payment for all Goods and Services, and where those Goods and Services are mixed with other property so as to be part of or a constituent of any new Goods and Services, title to these new Goods and Services shall deemed to be assigned to 3Way Solutions as security for the full satisfaction by the Customer of the full amount owing between 3Way Solutions and Customer.
10.3 The Customer gives irrevocable authority to 3Way Solutions to enter any premises occupied by the Customer or on which Goods and Services are situated at any reasonable time after default by the Customer or before default if 3Way Solutions believes a default is likely and to remove and repossess any Goods and Services and any other property to which Goods and Services are attached or in which Goods and Services are incorporated. 3Way Solutions shall not be liable for any costs, damages, expenses or losses incurred by the Customer 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. 3Way Solutions may either resell any repossessed Goods and 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 Goods and Services and credit the Customer’s account with the invoice value thereof less such sum as 3Way Solutions reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.
10.4 Where Goods and Services are retained by 3Way Solutions pursuant to clause 10.3 the Customer 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.
10.5 The following shall constitute defaults by the Customer:
10.5.1 Non payment of any sum by the due date.
10.5.2 The Customer intimates that it will not pay any sum by the due date.
10.5.3 Any Goods and Services are seized by any other creditor of the Customer or any other creditor intimates that it intends to seize Goods and Services.
10.5.4 Any Goods and Services in the possession of the Customer are materially damaged while any sum due from the Customer to 3Way Solutions remains unpaid.
10.5.5 The Customer is bankrupted or put into liquidation or a receiver is appointed to any of the Customer’s assets or a landlord distain against any of the Customer’s assets.
10.5.6 A Court judgement is entered against the Customer and remains unsatisfied for seven (7) days.
10.5.7 Any material adverse change in the financial position of the Customer.
10.6 If the Credit Repossession Act applies to any transaction between the Customer and 3Way Solutions, the Customer has the rights provided in that Act despite anything contained in these terms and conditions of trade.
- PAYMENT ALLOCATION
11.1 3Way Solutions may in its discretion allocate any payment received from the Customer towards any invoice that 3Way Solutions determines and may do so at the time of receipt or at any time afterwards and on default by the Customer may reallocate any payments previously received and allocated. In the absence of any payment allocation by 3Way Solutions, payment shall be deemed to be allocated in such manner as preserves the maximum value of 3Way Solutions purchase money security interest in products.
- GENERAL LIEN
12.1 The Customer agrees that 3Way Solutions may exercise a general lien against any Goods and Services or property belonging to the Customer that is in the possession of 3Way Solutions for all sums outstanding under this contract and any other contract to which the Customer and 3Way Solutions are parties.
12.2 If the lien is not satisfied within seven (7) days of the due date 3Way Solutions may, having given notice of the lien at its option either:
12.2.1 Remove such Goods and Services and store them in such a place and in such a manner as 3Way Solutions shall think fit and proper and at the risk and expense of the Customer; or
12.2.2 Sell such Goods and Services 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.
- DISPUTES AND RETURN OF GOODS
13.1 No claim relating to the Goods and Services will be considered unless made in writing within seven (7) days of delivery.
13.1.1 Goods and Services approved for return must be in the same re-saleable condition and in the manufacturer’s original container and undamaged. 3Way Solutions reserves the right to reject products not conforming to this condition; 1
3.1.2 Goods and Services accepted for return are subject to a restocking fee of 10 % of the original invoice value
13.1.3 Return freight and insurance costs must be prepaid by the Customer;
14.1 The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon 3Way Solutions 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 3Way Solutions, 3Way Solutions Ltd 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.
14.2 Except as otherwise provided by clause 14.1 3Way Solutions shall not be liable for:
14.2.1 Any loss or damage of any kind whatsoever including consequential loss whether suffered or incurred by the Customer 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 Goods and Services provided by 3Way Solutions to the Customer; and
14.2.2 The Customer shall indemnify 3Way Solutions 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 3Way Solutions or otherwise, brought by any person in connection with any matter, act, omission, or error by 3Way Solutions its agents or employees in connection with the Goods and Services.
15.1 No representation, condition, warranty or premise expressed or implied by law or otherwise applies to the Goods and Services except where goods are supplied or services provided pursuant to the Consumer Guarantees Act 1993 or except where expressly stated in this contract.
15.2 3Way Solutions does not provide any warranty that the Goods and Services are fit and suitable for the purpose for which they are required by the Customer and shall not be liable if they are not.
- CONSUMER GUARANTEES ACT
16.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Goods and Services from 3Way Solutions for the purposes of a business in terms of section 2 and 43 of that Act.
17.1 Security You acknowledge and agree that:
(a) By assenting to these terms, you grant a security interest (by virtue of the retention of title clause in clause 9 of these Terms) to the supplier in all goods previously supplied by the supplier to you (if any) and all after acquired Goods supplied by the supplier to you (or for your account);and
(b) These Terms shall apply not withstanding anything, express or implied, to the contrary contained in your purchase order
17.2 Financing Statement:
You undertake to:
(a) Sign any further documents and /or provide any further information (which information you warrant to be complete, accurate and up-to- date in all respects) which a member of 3Way Solutions Ltd may reasonably require to enable registration of a financing statement or financing change statement on the Personal Property security Register
(b) not register a financing change statement or a change demand in respect of the Goods (as those terms are defined in the PPSA) with out 3Way Solutions prior written consent; and give 3Way Solutions not less than 14 days prior written notice of any proposed change in your name and/or any other change in your details including, but not limited to, changes in your address, facsimile number, trading name or business practice.
17.3 Waiver and contracting out
(a) Unless otherwise agreed to in writing by 3Way Solutions you waiver your right to receive a verification statement in respect of any financing statement or financing change statement relating to the security interest
(b) To the maximum extent permitted by the law, you waive your rights and, with the 3Way solutions agreement, contract out of rights under sections referred to in sections 107(2)(c) to (e)and (g) to (i) of the PPSA.
(c) You agree that nothing in sections114(a), 133 and 134 of the PPSA shall apply to these Terms and, with 3Way Solution’s agreement, contract out of such sections.
18.1 3Way Solutions shall, without any liability, and without any prejudice to any other right it has in law or equity, have the right by notice to suspend or cancel in whole or in part any contract for the supply of Goods and Services to the Customer if the Customer fails to pay any money owing after the due date or the Customer commits an act of bankruptcy as defined in section 19 of the Insolvency Act 1967.
18.2 Any cancellation or suspension of this agreement shall not affect 3Way Solutions claim for money due at the time of cancellation or suspension or for damages for any breach of any terms of this contract or the Customer’s obligations to 3Way Solutions under this contract.
19.1 3Way Solutions shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
19.2 Failure by 3Way Solutions 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 3Way Solutions Ltd has under this contract.
19.3 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.
19.4 The client shall not assign all or any of its rights or obligations under this contract without the written consent of 3Way Solutions Ltd.
19.5 Where these terms and conditions of trade are at variance with the order or instructions from the Customer these terms and conditions of trade shall prevail.
19.6 If required by 3Way Solutions the Customer will store Goods and Services supplied by 3Way Solutions in a way that enables them to be identified as having been supplied by 3Way Solutions Ltd.
19.7 Unless 3Way Solutions Ltd elects otherwise, any dispute between the parties is to be dealt with in accordance with the Arbitration Act 1996.
19.8 The Customer consents to any information being given in an electronic form (by email) including invoices, quotations variation orders progress claims and payment claims pursuant to the Construction Contracts Act 2002