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Terms of trade

1. Acceptance of Orders
1.1  These Terms of Trade (Terms) shall be incorporated into all contracts involving goods (and any services) supplied by CUBRO® LTD (hereafter referred to as CUBRO®) irrespective of how the goods are ordered by the  Customer. These Terms shall prevail over any Customer's terms to the intent that any sale by CUBRO® shall be concluded on these Terms only.
1.2 CUBRO® may by written notice to the Customer alter or replace these Terms. In that case, notice may be given by email (to the last email address notified to CUBRO® by the Customer) or by posting the new Terms on CUBRO®’s website as well as by any of the means set out in clause 14. All orders placed subsequently by the Customer shall be upon the altered or replaced Terms. An assent to these current Terms of trade is an assent to any altered or replaced terms of trade but should CUBRO® request the Customer to assent specifically to the altered or replaced terms of trade, CUBRO® shall not be obligated to accept any job or to deliver any goods until the Customer has complied with that request.
1.3 Orders are accepted at the prices ruling when received or as otherwise negotiated. An order is an offer to purchase that is not binding on CUBRO® until accepted in whole or in part. Acceptance will normally be advised by telephone, fax or email.
2.   Payment
2.1 Unless otherwise stated in writing or credit has been withdrawn, payment shall be made in full on the 20th day of the month following the date of the invoice covering delivery (and any installation) of the goods or any other services provided by CUBRO®.
3. Prices
3.1 All prices are quoted and charged subject to the addition of freight, installation costs (where installation is to be undertaken) and GST at the then current ruling rate. All prices are subject to alteration without notice prior to acceptance of any order. CUBRO® shall not be bound by clerical errors or omissions whether in computation or otherwise in any acknowledgement or invoice and the same shall be subject to correction. Where a quote has been given, the quote will be open for acceptance by the Customer within the time stated in the quote but where no such time is stated, then within 30 days from the date of the quote. To accept a quote, the Customer must state the quotation number.
4. Risk
4.1 All risk of any loss, damage to or deterioration of the goods due to any cause whatsoever shall pass to the Customer when the goods leave CUBRO®’s warehouse. Insurance beyond carrier’s limited liability is for the Customer’s care.
4.2 Any agreed delivery date is an approximate date only and no delay in delivery will entitle the Customer to cancel its order for goods. If the Customer fails to take delivery of the goods (and any services) when they are made available or fails to provide any instructions, documents, licences, consents or authorisations required to enable the goods (and any services) to be delivered, then without prejudice to any other rights or remedies that CUBRO® may have, CUBRO® may store the goods or arrange for the goods to be stored at the cost and risk of the Customer until such time as the Customer takes physical delivery of the goods or may cancel the order or contract pursuant to any express or implied rights of cancellation available to it.
4.3 CUBRO® reserves the right to without notice withhold supply to the Customer, without being liable in any way for any loss, damage, cost or expense of any kind that may directly, indirectly, consequentially or otherwise be suffered or incurred by the Customer, where CUBRO® has insufficient goods to fill an order or the ordered goods have been discontinued or CUBRO® has determined in its absolute discretion that credit should no longer be extended to the Customer.
4.4 No liability is accepted for loss or damage of any kind whether direct, indirect, or consequential or otherwise or for any delay caused by any event or circumstance beyond CUBRO®’s reasonable control.
5. Returns
5.1 Returns (where there is no claim pursuant to clause’s 6 or 8) will only be accepted where CUBRO® has agreed beforehand. All returns must be sent freight paid within 7 days of delivery. CUBRO® reserves the right to charge a 10% handling fee on the returned goods.
6. Claims
6.1 Where the supply of goods or services pursuant to these Terms are for business purposes, CUBRO® accepts no liability for any loss or damage of any kind occasioned by the supply of incorrect goods (type or number of goods) or services. Claims requesting the supply of the correct goods where the wrong number of or incorrect goods have been supplied must be received by CUBRO® no later than 7 days after the date of delivery, time being essential.
7 Intellectual Property
7.1 CUBRO®’s products and designs are subject to modification or improvement without prior notice.
7.2 All intellectual property (including without limitation copyright, patent and design rights, drawings, documents, data, ideas, procedures and calculations) which arises out of or in the course of the production of the goods or the provision of the services are CUBRO®’s exclusive property, or the exclusive property of any third party contractor engaged by CUBRO® to undertake the provision of goods and/or services, unless otherwise agreed in writing.
7.3 Trade marks used in relation to CUBRO® products are owned by a third party (licensed to CUBRO®) and any reseller who buys CUBRO® products and who wishes to use these trade marks must assent to the Trade Mark Licence by requesting a copy of and signing the licence.
7.4 CUBRO® will retain exclusive worldwide ownership at all times of its artistic styles, methods of working, techniques, ideas, skills and know-how.
7.5 You must not attribute the goods or services to anyone other than CUBRO® or remove any our trade marks, signatures, logos or similar from the Products.
8. Confidentiality
8.1 You undertake and agree to treat as secret and confidential, and not at any time for any reason, other than for the purpose of the Terms or as required by law, to disclose or permit to be disclosed to any person, or otherwise make use of, or permit to be made use of, any information relating to the goods or our technical processes, trade marks, business affairs or finances or of any suppliers, agents, distributors, licensees or customers of CUBRO®’s where such knowledge or details were received during the term of these Terms.
9. Warranties and Liabilities for Claims
9.1 This clause 8 is subject only to the provisions of the Consumer Guarantees Act 1993 if applicable (which CUBRO® contracts out of if the Customer acquires or holds itself out as acquiring the goods for business purposes). CUBRO® shall not be bound by any condition, warranty, guarantee, representation, statement or term that is not expressly set out in these Terms or agreed to in writing by an authorised person on CUBRO®’s behalf.
9.2 Any liability of CUBRO® whether in contract, tort or otherwise for any loss, damage or injury arising directly or indirectly from any defect in or non-compliance of the goods supplied or any defect in the installation thereof is limited to replacement or repair of such defective or non-complying goods or the cost of remedying such defective installation as the case may be.
9.3 CUBRO® shall not be liable for any consequential indirect or special damage or loss of any kind including without limitation loss or profits or any other form of economic loss, nor shall CUBRO® be liable for any damage or loss caused to the Customer’s servants, agents, contractors, visitors, tenants, trespassers or any other person (whether similar to the foregoing or not) in respect of any loss, damage or injury arising from any defect in or non-compliance of the goods or from any defect in the installation thereof.
9.4 No claim by the Customer shall be effective or enforceable unless in writing and received by CUBRO® within 7 days after delivery of the products to the Customer or the completion of the installation thereof where the contract includes installation.
9.5 Where CUBRO® publishes information about a product that has been supplied to it by manufacturer’s or suppliers, then to the extent permitted by law, CUBRO® accepts no responsibility for the accuracy or correctness of the information and prospective customers should make their own inquiries about the products.
9.6 Should CUBRO®’s website at any time contain links to any other sites, CUBRO® accepts no responsibility or liability for any information contained or not contained on or through those sites.
9.7 Any Customer that is a reseller shall ensure that its terms of sale exclude the application of the Consumer Guarantees Act where their buyer acquires or holds itself out as acquiring the goods for business purposes.
10. Waiver and Variation

10.1

All the original rights, powers and exemptions and remedies of CUBRO® shall remain in force not withstanding any neglect, forbearance or delay in the enforcement thereof. CUBRO® shall not be deemed to have waived any terms or conditions unless such waiver shall be in writing and any such waiver, unless the contrary is expressly stated, shall apply to and operate only in relation to the particular transaction dealing or matter. No variation of any accepted order shall be binding unless agreed in writing (which in this case includes email).

11.

Property – Title and Security Interest

11.1

As between CUBRO® and the Customer, ownership of all goods supplied by CUBRO® shall be retained by CUBRO® until payment in full of all monies for any goods (including interest) owed by the Customer to CUBRO® are paid in full and in cleared funds.

11.2

Until payment is made, the Customer shall, where the goods have been purchased for resale, store the goods separately from goods not supplied by CUBRO® and the Customer shall hold the goods as bailee for CUBRO®. Where the goods have been purchased for resale, the Customer is authorised to resell the goods in the ordinary course of business but that authority may be revoked by CUBRO® at any time and shall be deemed automatically revoked if any of the events specified in clause 12 occur.

11.3

At any time after payment is due, CUBRO® may enter the premises occupied by the Customer or where the goods are otherwise stored to take possession of the goods. CUBRO® will not be liable for the costs, losses, damages, expenses or any other monies or losses suffered by the Customer as a result of CUBRO® retaking possession of the goods. If there is any doubt as to whether any goods in the possession of the Customer belong to CUBRO® or to the Customer, CUBRO®’s decision will be final and conclusive except in the case of manifest error (the onus of proving such being on the Customer).

11.4

If the Customer resells the goods or any of them before payment is made to CUBRO® for the goods the Customer shall hold the sale proceeds and any resultant book debts in trust for CUBRO® and account to CUBRO® for all monies owed by the Customer to CUBRO®.

11.5

For the purposes of the Personal Property and Securities Act 1999 (PPSA), the Customer acknowledges that CUBRO® has a purchase money security interest in goods supplied by CUBRO® (and any goods for which any of those goods have been exchanged or traded or that have been acquired in lieu of those goods, any new goods into which the goods have been manufactured, processed, assembled or commingled such that their original identity is lost, and all proceeds including without limitation accounts receivable in relation to any of those goods) to secure the price payable for the goods (and any interest or other charges payable in relation to the goods).

11.6

The Customer acknowledges that CUBRO® also has a general security interest in all goods supplied by CUBRO® from time to time and all proceeds (including without limitation, accounts receivable in relation to the goods) to secure all monies of any kind owing by the Customer to CUBRO® at any time.

11.7

The Customer will, if CUBRO® requests, sign any documents (including any new contracts), provide all the necessary information and do anything else required by CUBRO® to ensure that CUBRO®’s purchase money security interest is a perfected security interest. The Customer will not enter into any security agreement that permits any other person to register any other security interest in respect of the goods or the proceeds.

11.8

CUBRO® may at its discretion and in such manner as it determines allocate payments made by the Customer for any goods supplied by CUBRO®. Where CUBRO® takes possession of the goods, CUBRO® may sell the goods by any means at any time and from any sale proceeds, deduct all costs incurred in connection with the sale and all monies owed (even if not due and payable) by the Customer to CUBRO® on any account (to the extent to which CUBRO® has priority over any other interested parties). CUBRO® may recover from the Customer any shortfall on any sale or attempted sale.

11.9

The Customer waives its rights under sections 114(1)(a) (notice of sale), 116 (statement of account), 120(2) and 121 (receive notice of any proposal to retain goods and object to any proposal), 125 (removal of accession and damage caused when removing accession), 129 (notice of removal of accession), 131 (right to seek Court order as to removal of accession), and 133-134 inclusive (reinstatement of Agreement) of the PPSA. The Customer waives its right to receive a copy of the verification statement confirming registration of a financing statement or a financing change statement relating to CUBRO®’s security interest.

12

Default

12.1

CUBRO® may, without prejudice to any other provisions of these Terms or any other remedies available to CUBRO®, withdraw credit (if credit has been agreed) and/or withdraw any discounts that it has agreed to provide and/or with hold deliveries and/or require immediate payment (without the need to make formal demand) for goods (and any services) that are made available if CUBRO® considers the Customer to be a credit risk. Where any payment is not made on the due date, then without prejudice to any other rights or remedies available to CUBRO® under these Terms or at law or in equity or otherwise, CUBRO® may:

(a)

Charge interest, by way of liquidated damages, on all overdue accounts at the rate of 4% per month above the base lending rate of CUBRO®’s primary banker as at the date of default, calculated on a daily basis from the date on which payment was due until payment is made;

(b)

Withhold deliveries until all outstanding payments (whether or not presently due and payable) for any goods are paid or cancel undelivered orders or portions thereof;

(c)

Cancel an order or portion thereof and retain as liquidated damages any moneys paid by the Customer (up to a maximum of 10% of the purchase price) and sue the Customer for damages;

(d)

Cancel any other order or contract or arrangement between CUBRO® and the Customer or suspend performance of that order, contract or arrangement pending payment without being liable to the Customer for any losses (of any kind and whether direct or indirect or consequential) that the Customer might suffer;

(e)

Suspend or cancel credit and require cash on delivery or payment in advance of delivery;

(f)

Suspend or cancel any discounts that have been agreed.

 

Unless CUBRO® agrees otherwise, all payments for any goods whether or not then due shall immediately become due and payable. The Customer shall pay CUBRO® upon demand all costs and expenses incurred by CUBRO® (including without limitation all legal costs on a solicitor and own client basis) incurred or suffered by CUBRO® in endeavouring to obtain payment by the Customer or any guarantor of all sums payable by the Customer to CUBRO®.

13.

Force Majeur

13.1

Under this clause 13, “Force Majeure Event” means an act, event or cause reasonably beyond CUBRO®’s control including:

(a)

an action or inaction of Government, including expropriation, restraint, prohibition, intervention, requisition, requirement, direction or embargo by legislation, regulation, decree or other legally enforceable order; or

(b)

an act of God, fire, earthquake, storm, flood, landslide, explosion, power failure, sabotage, cyber-attack, national emergency, epidemic/pandemic, quarantine, radiation or radioactive contamination, or act or war but does not include financial management difficulties or any risk or event, including those listed above, the effects of which could have been prevented by the taking or reasonable care by us.

13.2

CUBRO® is not liable to you for any defect, loss, damage or delay caused by a Force Majeure Event.

14.

Cancellation

14.1

Without prejudice to any other rights or remedies that CUBRO® may have, CUBRO® may cancel an order in whole or in part or the contract upon the occurrence of any of the following events (“Events”):

(a)

CUBRO® considers that any information provided by the Customer or any Guarantor is materially inaccurate, incomplete or incorrect;

(b)

Any resolution is passed or application made for the liquidation of the Customer or the Customer does anything that would render it liable to be liquidated or a receiver or receiver and manager or administrator (or any similar person) is appointed in relation to any or all of the Customer’s assets;

(c)

The Customer commits any act of bankruptcy or has any monetary judgement entered against it or any exaction is levied against any assets of the Customer;

(d)

The Customer is, or in CUBRO®’s opinion, may be insolvent or for any reason, CUBRO® deems the Customer's credit to be unsatisfactory;

(e)

The Customer enters into or endeavours or proposes to enter into any composition with creditors.

14.2

CUBRO® may recover from the Customer any losses, damages, costs, interest, fees, charges and expenses (including without limitation all legal costs) incurred by CUBRO® as a result of any of these Events and the subsequent cancellation by CUBRO®.

15.

Customer's Change of Name

15.1

The Customer will give CUBRO® not less than 14 days written notice of any proposed change to the Customer’s name and co-operate with CUBRO® to enable a Financing Change Statement to be registered accordingly.

16.

Dispute Resolution

16.1

Where any dispute arises in connection with these Terms the complaining party must promptly give full written particulars of the dispute to the defaulting party. The Parties must then endeavour to meet and resolve the dispute in good faith.

16.2

Where any dispute remains unresolved within 20 working days of written particulars being given, either party is free to seek resolution of the dispute by whatever means available at law.

16.3

This clause 15 does not apply to:

(a)

any dispute arising in connection with any attempted renegotiation of these Terms of Trade; or

(b)

an application by either party for urgent interlocutory relief.

16.4

Pending resolution of any dispute the parties will perform these Terms in all respects including performance of the matter which is the subject of dispute but a payment due may be withheld if it is in dispute.

17.

Notices

17.1

Any notice or other document required to be in writing by virtue of these Terms may be given in person or by registered letter or facsimile addressed to the registered office or place of business or residential address of the party to be served last known to the other party. Service by registered letter shall be deemed effective at the time the registered letter would normally have been delivered in the ordinary course of post. Service by facsimile shall be deemed effective at the time of sending provided that the sending machine produces a printout of the time date and uninterrupted transmission of the message.

18.

Assignment

18.1

The Customer may not assign all or any of its rights or its rights or obligations under the contract between the parties without CUBRO®’s prior written consent. (which may be given or withheld in CUBRO®’s absolute discretion).

19.

General

19.1

You must pay us costs (including legal costs, as between solicitor and client) of and incidental to the enforcement or attempted enforcement of our rights, remedies and powers under these Terms.

19.2

If any of these Terms is held to be invalid, void, unenforceable or illegal for any reason, such provision must be deemed to be severed from these Terms and the remaining provisions must continue in force.

19.3

A failure or delay in enforcing a right pursuant to these Terms is not a waiver of that right. Any waiver must be in writing and signed by the party granting the waiver.

19.4

These Terms will be governed by the laws of New Zealand and are subject to the non-exclusive jurisdiction of New Zealand.

19.5

These Terms apply in preference to any terms supplied by you. Except as may be set out in a separate written and signed agreement between you and us, these Terms represent the entire agreement of the Parties in relation to the supply of Products and Services.