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2.1 Any instructions received by Copack from the Customer for the supply of Products shall constitute a binding contract and acceptance of the terms and conditions contained herein.
3 COLLECTION AND USE OF INFORMATION
3.1 The Customer authorises Copack to collect, retain and use any information about the Customer, for the purpose of assessing the Customer’s credit worthiness or enforcing any rights under this contract.
3.2 The Customer authorises Copack 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 1992.
4.1 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 Copack 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 Products that is beyond the control of Copack between the date of the contract and delivery of the Products.
5.1 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”).
5.2 Interest may be charged on any amount owing after the due date at the rate of 10% per month or part month.
5.3 Any expenses, disbursements and legal costs incurred by Copack 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.
5.4 Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
5.5 A deposit may be required.
6.1 Where a quotation is given by Copack for Products:
6.1.1 Unless otherwise agreed the quotation shall be valid for thirty (30) days from the date of issue; and
6.1.2 The quotation shall be exclusive of goods and services tax unless specifically stated to the contrary;
6.1.3 Copack reserves the right to alter the quotation because of circumstances beyond its control.
6.2 Where Products are required in addition to the quotation the Customer agrees to pay for the additional cost of such Products.
7.1 The Products are at the Customers risk (including responsibility for insurance) immediately upon delivery to the Customer.
7.2 Delivery of Products shall be deemed complete when Copack gives possession of the Products directly to the customer or possession of the Products is given to a carrier, courier, or other bailee for purposes of transmission to the customer.
7.3 The time agreed for delivery shall not be an essential term of this contract unless the Customer gives written notice to Copack making time of the essence.
8.1 The Customer authorises Copack to contract either as principal or agent for the provision of Products that are the matter of this contract.
8.2 Where Copack enters into a contract of the type referred to in clause 8.1 it shall be read with and form part of this agreement and the Customer agrees to pay any amounts due under that contract.
9 TITLE AND SECURITY
9.1 Title in any Products supplied by Copack passes to the Customer only when the Customer has made payment in full for all Products provided by Copack and of all other sums due to Copack by the Customer on any account whatsoever. Until all sums due to Copack by the Customer have been paid in full, Copack has a security interest in all Products.
9.2 If the products are attached, fixed, or incorporated into any property of the Customer, by way of manufacturing or assembly process by the Customer or any third party, title in the Products shall remain with Copack until the Customer has made payment for all Products, and where these 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 Copack as security for the full satisfaction by the Customer of the full amount owing between Copack and the Customer.
9.3 The customer gives irrevocable authority to Copack to enter any premises occupied by the Customer or on which Products are situated at any reasonable time after default by the Customer or before default if Copack 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. Copack 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. Copack may either resell any repossessed Products 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 credit the Customer’s account with the invoice value thereof less such sum as Copack reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.
9.4 Where Products are retained by Copack pursuant to clause 9.3 the Customer waives the right to receive notice under s. 120 of the Personal Properties Securities Act 1999 (“PPSA”) and to object under s. 121 of the PPSA.
9.5 The following shall constitute defaults by the Customer:
9.5.1 Non payment of any sum by the due date.
9.5.2 The Customer intimates that it will not pay any sum by the due date.
9.5.3 Any Products are seized by any other creditor of the Customer or any other creditor intimates that it intends to seize Products.
9.5.4 Any Products in the possession of the Customer are materially damaged while any sum due from the Customer to Copack remains unpaid.
9.5.5 The Customer is bankrupted or put into liquidation or a receiver is appointed to any of the Customer’s assets or a landlord distains against any of the Customers’ assets.
9.5.6 A Court judgement is entered against the Customer and remains unsatisfied for seven (7) days.
9.5.7 Any material adverse change in the financial position of the Customer.
9.6 If the Credit Repossession Act applies to any transaction between the customer and Copack, the Customer has the rights provided in that Act despite anything contained in these terms and conditions of trade.
10 SECURITY INTEREST FOR SERVICE PROVIDERS
10.1 The Customer gives Copack a security interest in all of the Customer’s present and after acquired property that Copack has performed services on or to or in which goods or materials supplied by Copack have been attached or incorporated.
11 PAYMENT ALLOCATION
11.1 Copack may in its discretion allocate any payment received from the Customer towards any invoice that Copack 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 Copack, payment shall be deemed to be allocated in such manner as preserves the maximum value of Copack’s purchase money security interest in the Products.
12 DISPUTES AND RETURN OF PRODUCTS
12.1 No claim relating to the products will be considered unless made within seven (7) days of delivery.
12.2 Products supplied ex-stock in accordance with the Customer’s order can only be returned with the express approval of Copack.
12.2.1 Requests to return Products must be submitted in writing within ten (10) days from the date of supply;
12.2.2 Where Products are accepted for credit they must be delivered at the Customer’s expense to Copack’s store from where they were purchased in original condition and packaging.
12.2.3 The original invoice number must be quoted. A return authorisation number must be clearly shown on the outside of the package.
12.2.4 Copack reserves the right to levy a re-stocking fee against any returns it may agree to accept. Such fees may be up to 15% and levied at Copack’s absolute discretion.
12.3 Products especially manufactured or procured on behalf of the Customer cannot be returned except by prior written approval from Copack and then only on such terms and conditions as Copack may agree.
13.1 The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon Copack 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 Copack, Copack’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.
13.2 Except as otherwise provided by clause 13.1 Copack shall not be liable for:
13.2.1 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 damages arises directly or indirectly from Products provided by Copack to the Customer; and
13.2.2 The Customer shall indemnify Copack 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 Copack or otherwise, brought by any person in connection with any matter, act, omission, or error by Copack its agents or employees in connection with the Products.
14.1 Manufacturer’s warranty applies where applicable.
14.2 Any written warranty that Copack provide to the Customer will also form part of these terms and conditions of trade.
15 CONSUMER GUARANTEES ACT
15.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the customer acquires Products from Copack for the purposes of a business in terms of section 2 and 43 of that Act.
16 PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES
16.1 If the Customer is a company or trust, the director(s) or trustee(s) signing this contract, in consideration for Copack agreeing to supply Products and grant credit to the customer at their request, also sign this contract in their personal capacity and jointly and severally personally undertake as principal debtors to Copack the payment of any and all monies now or hereafter owed by the Customer to Copack and indemnify Copack against non-payment by the Customer. Any personal liability of a signatory hereto shall not exclude the Customer in any way whatsoever from the liabilities and obligations contained in this contract. The signatories and Customer shall be jointly and severally liable under the terms and conditions of this contract and for payment of all sums due hereunder.
17.1 Copack shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
17.2 Failure by Copack 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 Copack has under this contract.
17.3 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.
17.4 The Customer shall be solely responsible for obtaining any necessary permits under and for compliance with all statutes, regulations, by-laws in connection with the installation and operation of the Product.