1.1 “Contour” shall mean Contour International Limited its successors and assigns or
any person acting on behalf of and with the authority of Contour International
Limited.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the
authority of the Client) as described on any Credit Account Application, Request to
supply goods, or other form submitted to Contour by the client.
1.3 “Guarantor” shall mean any person (or persons) who agrees to personally
guarantee the debts of the Client to Contour.
1.4 “Goods” shall mean all Goods supplied by Contour to the client and shall include
the supply of services by Contour to the Client and includes Goods described on
any invoices, quotations, work authorisation or any other forms provided by
Contour to the Client.
1.5 “Price” shall mean the price payable for the Goods as per the provisions of clause
3 of these Terms.
1.6 “Terms” means these Terms and Conditions of Trade.
2. Acceptance
2.1 Any instructions and/or request received by Contour from the Client for the supply
of Goods including, but not limited to, any Request to Supply Goods Form
completed by the Client and provided to Contour shall constitute acceptance of
the Terms.
2.2 Upon acceptance of these Terms by the Client, the Terms can only be amended in
writing, including by Contour giving the Client written notice of any variation to
the Terms.
2.3 The Client shall give Contour not less than fourteen (14) days prior written notice
of any proposed change of ownership and/or control of the Client or any change
in the Client’s name and/or any other change in the Client’s details (including, but
not limited to, changes in the Client’s address, facsimile number, or business
practice). The Client shall be liable for any loss incurred by Contour because of the
Client failing to comply with this clause.
2.4 Any Goods supplied by Contour to the Client are supplied exclusively on the Terms
notwithstanding any evidence whatsoever to the contrary unless Contour agrees
in writing to any amendment to the Terms.
2.5 Contour shall be entitled to treat any request received by Contour for the supply
of Goods from any officer, agent, employee, or other representative of the Client
as a request directly form the Client. The Client shall not, in any circumstances, be
entitled to refuse receipt of any Goods or payment for any Goods supplied by
Contour on the basis that the officer, agent, employee or other representative of
the Client that placed the order for the Goods did not have the authority of the
Client to order the Goods.
3. Price and Payment
3.1 At Contour’s sole discretion the Price shall be either:
a. Contour’s current price at the date of delivery of the Goods according to Contour’s
current Price list; or
b. Contour’s quoted Price (subject to clause 3.2) which shall be binding upon Contour
provided that the Client shall accept Contour’s quotation in writing within the
quotation validity date specified on any quotation provided by Contour.
3.2 Contour reserves the right to change the Price in the event of a variation to
Contour’s quotation.
3.3 At Contour’s sole discretion a deposit may be required. Such deposit shall be non-
refundable.
3.4 Payment is due in full on the payment “due date” indicated on Contour’s invoice,
time being of the essence. However, Contour retains the right to require payment
on delivery of the Goods or on any other terms that Contour gives notice of to the
Client in writing, with time being of the essence.
3.5 Payment will be made by credit card (transaction fees apply), or by direct credit,
or by any other method as agreed between the Client and Contour in writing.
3.6 GST and other taxes and duties that may be applicable shall be added to the Price
except when they are expressly included in the Price.
4. Delivery of Goods
4.1 Delivery of the Goods to the Client by Contour shall be deemed to have occurred
when the Goods leave Contour’s Warehouse, whether uplifted by the Client or by
a carrier, regardless of whether the carrier is arranged by the Client or by Contour.
4.2 Contour may deliver the Goods by separate instalments. Each separate instalment
shall be invoiced and paid for in accordance with the provisions in these terms and
conditions.
4.3 The failure of Contour to deliver any Goods shall not entitle either party to treat
this contract as repudiated
4.4 Contour shall not be liable for any loss or damage whatsoever to the Client or any
other party due to failure by Contour to deliver the Goods (or any of them)
promptly or at all, where due to circumstances beyond the control of Contour.
4.5 Contour will take all reasonable steps to ensure all Goods are delivered within the
indicative time frames. However, in no circumstances will Contour be liable for any
losses suffered by the Client or other party because of any Goods not being
delivered within the indicative timeframes.
4.6 Contour reserves the right to make minor adjustments to order quantities to
conform to standard packaging protocol.
4.7 The Client shall ensure that the suitable facilities and/or equipment are available
for unloading the Goods. If suitable facilities and/or equipment are not available
then the Client will be responsible for all associated costs, including (without
limitation) damage to the Goods during unloading, equipment and labor costs for
unloading the goods, and freight/transport costs for the return of the Goods to
Contour and/or alternative delivery of the Goods in the event that the freight
company refuses delivery of the Goods.
5. Risk
5.1 Notwithstanding Contour’s retention of ownership of the Goods pursuant to these
Terms, all risk for the Goods passes to the Client on delivery of the goods (i.e. when
the Goods leave Contour’s warehouse).
5.2 If any of the Goods are damaged or destroyed following delivery but prior to
ownership passing to the Client, Contour is entitled to receive all insurance
proceeds payable for the Goods. The production of these Terms by Contour is
sufficient evidence of Contour’s rights to receive the insurance proceeds without
the need for any person dealing with Contour to make further enquiries.
6. Title
6.1 Contour and the Client agree that ownership of the Goods shall not pass from
Contour to the Client until:
a. The Client has paid Contour all amounts owing for the Goods; and
b. The Client has met all other obligations due by the Client to Contour in respect of
all contracts between Contour and the Client.
6.2 Receipt by Contour of any form of payment from the Client shall not be deemed
to be payment until that form of payment has been cleared so that such payment
is unable to be withdrawn or reversed in any circumstances and until then
Contour’s ownership rights in respect of the Goods shall continue.
6.3 It is further agreed that:
a. Where practicable the Goods shall be kept separate and identifiable until Contour
shall have received payment and all other obligations of the Client are met; and
b. Until such time as ownership of the Goods shall pass from Contour to the Client
Contour may give notice in writing to the Client to return the Goods or any of them
to Contour. Upon such notice being given the rights of the Client to obtain
ownership or any other interest in the Goods shall cease; and
c. The Client is only a bailee of the Goods and until such time as Contour has received
payment in full for the Goods then the Client shall hold any proceeds from the sale
or disposal of the Goods, up to and including the amount the Client owes to
Contour for the Goods, on trust for Contour; and
d. If the Client fails to return the Goods to Contour then Contour or Contour’s agent
may (as the invitee of the Client) enter upon and into land and premises owned,
occupied, or used by the Client, or any premises where the Goods are situated and
take possession of the Goods, and Contour will not be liable for any reasonable
loss or damage suffered as a result of any action by Contour under this clause.
7. Personal Property Securities Act 1999
7.1 Upon assenting to these terms and conditions in writing the Client acknowledges
and agrees that:
a. These terms and conditions constitute a security agreement for the purposes of
the Personal Property Securities Act 1999 (“PPSA”); and
b. A security interest is taken in all Goods previously supplied by Contour to the Client
(if any) and all Goods that will be supplied in the future by Contour to the Client,
with Contour being entitled to perfect such security interest by registration of a
financing statement in the Personal Property Securities Register.
7.2 The Client warrants that the Client will:
a. Sign any further documents and/or provide any further information which Contour
may reasonably require to register a financing statement or financing change
statement on the Personal Property Securities Register.
b. Not register a financing change statement or a change demand without the prior
written consent of Contour in relation to any financing statement registered by
Contour.
7.3 Contour and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the
PPSA shall apply to these Terms.
7.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126,
127, 129, 131 and 132 of the PPSA.
7.5 Unless otherwise agreed to in writing by Contour, the Client waives its right to
receive a verification statement in accordance with section 148 of the PPSA.
7.6 The Client shall unconditionally ratify any actions taken by Contour under clauses
7.1 to 7.5 above.
8. Security and Charge
8.1 Notwithstanding anything to the contrary contained in these Terms or any other
rights which Contour may have whatsoever:
a. Where the Client and/or the Guarantor (if any) is the owner of land, realty, or any
other asset capable of being charged, both the Client and/or the Guarantor agree
to mortgage and/or charge all of their joint and/or several interest in the said land,
realty or any other asset to Contour or Contour’s nominee to secure all amounts
and other monetary obligations payable under these terms and conditions. The
Client and/or Guarantor acknowledge and agree that Contour (or Contour’s
nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall
be withdrawn once all payments and other monetary obligations payable
hereunder have been met.
b. Should Contour elect to proceed in any manner in accordance with this clause
and/or its sub-clauses, the Client and/or Guarantor shall indemnify Contour from
and against all Contour’s costs and disbursements including legal costs on a
solicitor and own client basis.
c. The Client and/or Guarantor (if any) agree to irrevocably nominate constitute and
appoint Contour or Contour’s nominee as the Client’s and/or Guarantor’s true and
lawful attorney to perform all necessary acts to give effect to the provisions of this
clause 8.1.
9. Damaged or Defective/Faulty Goods
9.1 The Client shall inspect the Goods as soon as possible following delivery and shall
within five (5) working days of delivery (time being of the essence) notify Contour
of any alleged fault, defect, shortage in quantity, damage, or failure to comply with
the description or quote for the Goods. The client shall afford Contour an
opportunity to inspect the Goods within a reasonable time following delivery if the
Client believes the Goods are defective in any way, in accordance with the terms
of Contour’s 12 month back to base warranty. For defective/faulty Goods, which
Contour agrees in writing are defective, Contour’s liability is limited to either (at
Contour’s discretion) replacing the Goods or repairing the Goods.
9.2 Contour will not, under any circumstances, be held responsible for charges
incurred by other parties for rectification of any Goods unless such charges have
been approved in writing by Contour. Contour reserves the right to use its own
maintenance staff for any warranty-rectification work.
9.3 In the event that the Client claims that Goods are faulty or defective and it is
discovered that the Goods are not faulty of defective (including but not limited to
the Goods malfunctioning due to incorrect installation or operation) then the
Client will be responsible for all of the costs of Contour (including but not limited
to accommodation, travel, labor, time and equipment costs) in relation to Contour
investigating the Goods in question.
9.4 Under no circumstances whatsoever will Contour's liability in respect of any
damage suffered by the Client or any other person because of any faulty or
defective Goods exceed an amount equal to the price of such faulty or defective
Goods.
10. Returns
10.1 Returns will only be accepted provided that:
a. the Client has complied with the provisions of clause 9.1 of these Terms, time being
of the essence; and
b. Contour has agreed in writing to accept the return of the Goods and issued to the
client a Return Goods Authority; and
c. The Goods are returned to Contour at the Client’s cost within five (5) working days
of notification being provided to Contour as per clause 9.1 of these Terms; and
d. Contour will not be liable to accept return of the Goods which have not been
stored or used in a proper manner; and
e. The Goods are returned in the condition in which they were delivered, with all
packaging and instruction material in an as new condition.
10.2 Contour may (in its discretion) accept the return of the Goods for credit but this
may incur a re-stocking fee. The amount of the re-stocking fee will be determined
at the absolute discretion of Contour on a case-by-case basis but will be no less
than 20% of the price of the Goods sold.
10.3 The client accepts any indent products supplied by Contour ordered specifically for
the Client cannot be returned for a credit.
11. Warranty
11.1 To the extent permitted by statute, no warranty is given by Contour as to the
quality or suitability of the Goods for any purpose and any implied warranty is
expressly excluded. Contour shall not be responsible for any loss or damage to the
Goods, or caused by the Goods, or any part thereof however arising. Apart from
any warranty expressly provided by Contour, no other warranties either express
or implied by law are made with respect to the Goods.
12. Consumer Guarantees Act 1993
12.1 The Client acknowledges that the Client is acquiring the Goods for the purposes of
a trade or business, and the provisions of the Consumer Guarantees Act 1993 do
not apply to any Goods supplied by Contour to the Client.
13. Default and Consequences of Default
13.1 Interest on overdue invoices shall accrue daily from the date when payment
becomes due in accordance with these Terms, until the date of payment in full, at
the rate of two percent (2%) per calendar month (and at Contour’s sole discretion
such interest shall compound monthly) both after and before any judgment.
13.2 In the event that the Client’s payment is dishonoured for any reason the Client
shall be liable for any dishonour fees incurred by Contour.
13.3 If the Client fails to pay any invoice when due, the Client shall indemnify Contour
from and against all costs and disbursements incurred by Contour in pursuing such
payment including legal costs on a solicitor and own client basis and Contour’s
collection agency costs.
13.4 Without prejudice to any other remedies Contour may have, if at any time the
Client is in breach of any obligation (including those relating to payment) Contour
may suspend or terminate the supply of Goods to the Client and any of its other
obligations under these Terms. Contour will not, under any circumstances, be
liable to the Client for any loss or damage the Client suffers because Contour has
exercised its rights pursuant to this clause.
13.5 If any account remains overdue after thirty (30) days from the due date for
payment then an amount of $15.00 + GST shall be levied for administration fees
which sum shall become immediately due and payable.
13.6 Without prejudice to Contour’s other remedies at law Contour shall be entitled to
cancel all or any part of any order of the Client which remains unfulfilled and all
amounts owing to Contour shall, whether or not due for payment, become
immediately payable in the event that:
a. be unable to meet its payments as they fall due; or
b. 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
c. A receiver, manager, liquidator, or similar person is appointed in respect of the
Client or any asset of the Client.
14. Cancellation
14.1 Contour reserves the absolute right to cancel any contract to which these Terms
apply or cancel delivery of Goods at any time before delivery of the Goods by giving
written notice to the Client. On giving such notice Contour shall repay to the Client
any sums paid in respect of the Price. Contour shall not be liable for any loss or
damage whatsoever arising from such cancellation.
14.2 If the client cancels delivery of the Goods the Client shall be liable for any loss
incurred by Contour (including, but not limited to, any loss of profits) up to the
time of cancellation, in relation to such cancelled order.
15. Privacy
15.1 The Client and the Guarantor(s) (if separate to the Client) authorise Contour to:
a. collect, retain and use any information about the Client and/or Guarantor(s), for
the purpose of assessing the Client’s and/or Guarantor(s)’ creditworthiness and/or
marketing Goods to the Client and/or Guarantor(s) including, without limitation,
email marketing; and
b. disclose information about the Client and/or Guarantor(s), whether collected by
Contour from the Client and/or Guarantor(s) directly or obtained by Contour from
any other source to any credit provider or any credit reporting agency for the
purposes of providing or obtaining a credit reference, undertaking debt collection,
notifying a default by the Client and/or Guarantor(s), or any other purpose.
15.2 Where the Client and/or Guarantor(s) are an individual Client and/or Guarantor(s),
the Client and/or Guarantor(s) acknowledge the authorities under clause 15.1 are
authorities or consents for the purposes of the Privacy Act 1993.
15.3 The Client and/or Guarantor(s) shall have the right to request Contour for a copy
of any information relating to the Client and/or Guarantor(s) retained by Contour
and the right to request Contour to correct any incorrect information about the
Client and/or Guarantor(s) held by Contour.
16.0 General
16.1 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.
16.2 These Terms 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,
with any proceedings between the Client and Contour to be filed and heard in
Tauranga or as close to Tauranga as possible.
16.3 Contour 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 Contour of these Terms.
16.4 In the event of any breach of these Terms by Contour then, unless a lower amount
is stipulated elsewhere in these Terms in respect of such breach, the remedies of
the Client shall be limited to damages and the amount of such damages shall not
under any circumstances exceed the Price of the Goods to which the particular
breach relates.
16.5 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 Contour nor to withhold
payment of any invoice because part of that invoice is in dispute.
16.6 Contour may license or sub-contract all or any part of its rights and obligations
pursuant to these Terms without the Client’s consent.
16.7 Contour reserves the right to review these Terms at any time. If, following any
such review, there is to be any change to these Terms, then that change will take
effect from the date on which Contour notifies the Client in writing of such change.
16.8 Neither party shall be liable for any default due to any act of God, war, terrorism,
strike, lock-out, industrial action, fire, flood, drought, storm, or other event beyond
the reasonable control of either party.
16.9 The failure by Contour to enforce any provision of these Terms shall not be treated
as a waiver of that provision, nor shall it affect Contour’s right to subsequently
enforce that provision.
16.10 Notwithstanding any other provisions in these Terms to the contrary, it shall be at
the sole discretion of Contour to accept or reject any request by the Client for
Contour to supply Goods to the Client.
16.11 Any request by the Client for Contour to supply Goods to the Client may not be
withdrawn by the Client once Contour has given notice to the Client that Contour
has accepted such request. However, Contour may at its sole discretion opt to
accept a request by the Client to withdraw a request for the supply of Goods,
provided that the withdrawal is treated as a return of Goods on the basis set out
in clause 10 of these Terms.
16.12 In the event of any conflict between these Terms and Contour’s 12 month back to
base warranty, the terms of Contour’s 12 month back to base warranty will apply.
17. Default
17.1 Any failure by the Client to meet the requirements of all or any of the above Terms
will be deemed to be a breach of the Terms. In the event of such a breach Contour
reserves the absolute right to terminate the Client’s account with Contour without
further notice.
18. Whole Agreement
18.1 Contour and the Client agree that these Terms comprise the entire agreement
between Contour and the Client and there are no representations made by or on
behalf of Contour that are not contained in these Terms that are relied upon by
the Client. Further, the remedies in these Terms shall be the available remedies in
place of the Contractual Remedies Act 1979.
19. Survival
19.1 Each provision of these Terms survives to the extent unfulfilled, and remains
enforceable and does not merge, on performance of another provision.
