Terms of Trade
Amvee Holdings Ltd T/A Cintesi - Terms & Conditions of Trade
Delivery of Goods
- "Cintesi" means Amvee Holdings Ltd T/A Cintesi, its successors and assigns or any person acting on behalf of and with the authority of Amvee Holdings Ltd T/A Cintesi.
- "Client" means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
- "Goods" means all Goods or Services supplied by Cintesi to the Client at the Client's request from time to time (where the context so permits the terms 'Goods' or 'Services' shall be interchangeable for the other).
- "Price" means the Price payable for the Goods as agreed between Cintesi and the Client in accordance with clause 5 below.
- The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
- These terms and conditions may only be amended with Cintesi's consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Cintesi.
- None of Cintesi's agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of Cintesi in writing nor is Cintesi bound by any such unauthorised statements.
The Client acknowledges and accepts that:
- the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, Cintesi reserves the right to vary the Price with alternative Goods as per clause 5.2. Cintesi also reserves the right to halt all Services until such time as Cintesi and the Client agree to such changes; and
- for Goods that are specifically designed to have a weathered and/or aged look, will be accepted on the condition that the distressed and/or aged finish shall not at any time constitute damaged or defective Goods and will not be grounds for a return.
- Unless otherwise limited as per clause 3.2 the Client agrees that should the Client introduce any third party to Cintesi as the Client's duly authorised representative, that once introduced that person shall have the full authority of the Client to order any materials or Services on the Client's behalf and/or to request any variation to the works on the Client's behalf (such authority to continue until all requested works have been completed or the Client otherwise notifies Cintesi in writing that said person is no longer the Client's duly authorised representative).
- In the event that the Client's duly authorised representative as per clause 3.1 is to have only limited authority to act on the Client's behalf then the Client must specifically and clearly advise Cintesi in writing of the parameters of the limited authority granted to their representative.
- The Client specifically acknowledges and accepts that they will be solely liable to Cintesi for all additional costs incurred by Cintesi (including Cintesi's profit margin) in providing any works, materials, Services or variation/s requested by the Client's duly authorised representative (subject always to the limitations imposed under clause 3.2 (if any)).
Change in Control
- The Client shall give Cintesi not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client's details (including but not limited to, changes in the Client's name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by Cintesi as a result of the Client's failure to comply with this clause.
Price in Payment
- At Cintesi's sole discretion the Price shall be either:
as indicated on any invoice provided by Cintesi to the Client; or
the Price as at the date of delivery of the Goods according to Cintesi's current price list; or
- Cintesi's quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of twenty-one (21) days.
Cintesi reserves the right to change the Price in the event of a variation to Cintesi's quotation. Any variation from the plan of scheduled Services or specifications (including, but not limited to, in the event that overseas transactions increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges or as a result of increases to Cintesi in the cost of the Goods) will be detailed in writing and charged for on the basis of Cintesi's quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
- At Cintesi's sole discretion a deposit may be required of 50% of the Price. The deposit amount or percentage of the Price will be stipulated at the time of the order of the Goods and shall become immediately due and payable.
- Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by Cintesi, which may be:
- prior to dispatch of the Goods;
- on delivery of the Goods;
- for certain approved Clients, due twenty (20) days following the end of the month in which a statement is posted to the Client's address or address for notices;
- the date specified on any invoice or other form as being the date for payment; or
- failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Cintesi.
- Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by any other method as agreed to between the Client and Cintesi.
- Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Cintesi an amount equal to any GST Cintesi must pay for any supply by Cintesi under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client 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 ("Delivery") of the Goods is taken to occur at the time that:
the Client or the Client's nominated carrier takes possession of the Goods at Cintesi's address; or
Cintesi (or Cintesi's nominated carrier) delivers the Goods to the Client's nominated address even if the Client is not present at the address.
- At Cintesi's sole discretion the cost of delivery is in addition to the Price.
- The Client must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Cintesi shall be entitled to charge a reasonable fee for redelivery and/or storage.
- Cintesi may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
- Any time or date given by Cintesi to the Client is an estimate only. The Client must still accept delivery of the Goods even if late and Cintesi will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
- Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
- If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Cintesi is entitled to full payment of the Goods and receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Cintesi is sufficient evidence of Cintesi's rights to receive the insurance proceeds without the need for any person dealing with Cintesi to make further enquiries.
- If the Client requests Cintesi to leave Goods outside Cintesi's premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client's sole risk.
- The Client acknowledges that variations of colour and shade are inherent in all products. While every effort will be taken by Cintesi to match colour and shade of the Goods, Cintesi shall not be liable for any loss, damage or costs, howsoever arising resulting from any variation in colour and shading between batches of the Goods or sale samples and the final Goods supplied.
- Cintesi shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this
information provided by the Client is inaccurate, the Contractor accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
Personal Property Securities Act 1999 ("PPSA")
- Cintesi and the Client agree that ownership of the Goods shall not pass until:
- the Client has paid Cintesi all amounts owing to Cintesi; and
- the Client has met all of its other obligations to Cintesi..
- Receipt by Cintesi 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.
- It is further agreed that:
- until ownership of the Goods passes to the Client in accordance with clause 8.1 that the Client is only a bailee of the Goods and must return the Goods to Cintesi on request.
- the Client holds the benefit of the Client's insurance of the Goods on trust for Cintesi and must pay to Cintesi the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
- the Client 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 Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for Cintesi and must pay or deliver the proceeds to Cintesi on demand.
- the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Cintesi and must sell, dispose of or return the resulting product to Cintesi as it so directs.
- the Client irrevocably authorises Cintesi to enter any premises where Cintesi believes the Goods are kept and recover possession of the Goods.
- Cintesi may recover possession of any Goods in transit whether or not delivery has occurred.
- the Client 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 Cintesi.
- Cintesi may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
Security and Charge
- Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
- these terms and conditions constitute a security agreement for the purposes of the PPSA; and
- a security interest is taken in all Goods previously supplied by Cintesi to the Client (if any) and all Goods that will be supplied in the future by Cintesi to the Client.
- The Client undertakes to:
- sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Cintesi may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
- indemnify, and upon demand reimburse, Cintesi for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
- not register a financing change statement or a change demand without the prior written consent of Cintesi; and
- immediately advise Cintesi of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
- Cintesi and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
- The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
- Unless otherwise agreed to in writing by Cintesi, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
- The Client shall unconditionally ratify any actions taken by Cintesi under clauses 9.1 to 9.5.
- In consideration of Cintesi agreeing to supply the Goods, the Client 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 Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
- The Client indemnifies Cintesi from and against all Cintesi's costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Cintesi's rights under this clause.
- The Client irrevocably appoints Cintesi and each director of Cintesi as the Client's true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Client's behalf.
- The Client hereby disclaims any right to rescind, or cancel any contract with Cintesi or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by Cintesi and the Client acknowledges that the Goods are bought relying solely upon the Client's skill and judgment.
- The Client shall inspect the Goods on delivery and shall within twenty-four (24) hours of delivery (time being of the essence) notify Cintesi of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. Any freight damage is to be noted on receipt of Goods on the carrier dockets and the Client agrees to make any claim in respect of damage in transit direct to the carrier. The Client shall afford Cintesi an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Cintesi has agreed in writing that the Client is entitled to reject, Cintesi's liability is limited to either (at Cintesi's discretion) replacing the Goods or repairing the Goods.
- Returns will only be accepted provided that:
- the Client has complied with the provisions of clause 12.1; and
- Cintesi has agreed in writing to accept the return of the Goods; and
- the Goods are returned at the Client's cost within seven (7) days of the delivery date; and
- Cintesi will not be liable for Goods which have not been stored or used in a proper manner; and
- the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
- Cintesi may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of twenty percent (20%) of the value of the returned Goods plus any freight.
- Non-stocklist items or Goods made to the Client's specifications are under no circumstances acceptable for credit or return.
Consumer Guarantees Act 1993
- For Goods not manufactured by Cintesi, the warranty shall be the current warranty provided by the manufacturer of the Goods. Cintesi shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
- The conditions applicable to any warranty given on Goods supplied by Cintesi and as detailed on Cintesi's website www.cintesi.co.nz.
- Cintesi will not be liable to repair any defective Goods and at its own discretion may:
notify the manufacturers of the Goods of any defect notified by the Client; and
request the manufacturers to repair or replace any defective Goods.
- If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by Cintesi to the Client.
Default and Consequences of Default
- Where Cintesi has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of Cintesi.
- The Client warrants that all designs, specifications or instructions given to Cintesi will not cause Cintesi to infringe any patent, registered design or trademark in the execution of the Client's order and the Client agrees to indemnify Cintesi against any action taken by a third party against Cintesi in respect of any such infringement.
- The Client agrees that Cintesi may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Cintesi has created for the Client.
- 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 Cintesi's sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
- If the Client owes Cintesi any money the Client shall indemnify Cintesi from and against all costs and disbursements incurred by Cintesi in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Cintesi's collection agency costs, and bank dishonour fees).
- Without prejudice to any other remedies Cintesi may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Cintesi may suspend or terminate the supply of Goods to the Client. Cintesi will not be liable to the Client for any loss or damage the Client suffers because Cintesi has exercised its rights under this clause.
- Without prejudice to Cintesi's other remedies at law Cintesi shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Cintesi shall, whether or not due for payment, become immediately payable if:
- any money payable to Cintesi becomes overdue, or in Cintesi's opinion the Client will be unable to make a payment when it falls due;
- the Client 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
- a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
Privacy Act 1993
- Cintesi may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Cintesi shall repay to the Client any money paid by the Client for the Goods. Cintesi shall not be liable for any loss or damage whatsoever arising from such cancellation.
- In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by Cintesi as a direct result of the cancellation (including, but not limited to, any loss of profits).
- Cancellation of orders for Goods made to the Client's specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
- The Client authorises Cintesi or Cintesi's agent to:
- access, collect, retain and use any information about the Client;
(including any overdue fines balance information held by the Ministry of Justice) for the
- purpose of assessing the Client's creditworthiness; or
- for the purpose of marketing products and services to the Client.
- disclose information about the Client, whether collected by Cintesi from the Client directly or obtained by Cintesi 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 Client.
- Where the Client is an individual the authorities under clause 19.1 are authorities or consents for the purposes of the Privacy Act 1993.
- The Client shall have the right to request Cintesi for a copy of the information about the Client retained by Cintesi and the right to request Cintesi to correct any incorrect information about the Client held by Cintesi.
- Where Cintesi or the Client is either wholly or in part is unable by reason of, an Act of God, strike, lockout, or other interference with work, war, blockade, disturbance, lightning, fire, earthquake, storm, flood, explosion, governmental restraint or embargo, unavailability or delay in availability of Goods, or transport, inability or delay in obtaining government approvals, or any other cause which is not reasonably within the control of the affected party (i.e. a force majeure event), to carry out any obligation under this agreement and that party:
- gives the other party prompt notice of that force majeure with full particulars of the probable extent to which it will be unable to perform, or be delayed in performing its obligations under this agreement; and
- uses all possible diligence to remove that force majeure as soon as possible; then
those obligations shall be suspended so far as it is affected by the force majeure event and during its continuance provided that;
- an obligation to pay money is never excused by force majeure; and
- the requirement that any force majeure event shall be removed with all possible diligence shall not require the settlement of strikes, lockouts, or other labour disputes, or claims or demands by any government, on terms contrary to the wishes of the party affected.
- The failure by Cintesi to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Cintesi'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.
- 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.
- Cintesi shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Cintesi of these terms and conditions.
- The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Cintesi nor to withhold payment of any invoice because part of that invoice is in dispute.
- Cintesi may license or sub-contract all or any part of its rights and obligations without the Client's consent.
- The Client agrees that Cintesi may amend these terms and conditions at any time. If Cintesi makes a change to these terms and conditions, then that change will take effect from the date on which Cintesi notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for Cintesi to provide Goods to the Client.
- The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
Please note that a larger print version of these terms abd conditions is available from Cintesi on request.
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