1.1 “Boxkraft ” shall mean Boxkraft Limited, 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 goods and services from Boxkraft .
1.3 “Goods” shall mean:
1.3.1 all Goods of the general description specified on the front of this agreement and supplied by Boxkraft to the Customer; and
1.3.2 all Goods supplied by Boxkraft to the Customer; and
1.3.3 all inventory of the Customer that is supplied by Boxkraft; and
1.3.4 all Goods supplied by Boxkraft and further identified in any invoice issued by Boxkraft 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 Boxkraft or that are stored by the Customer in a manner that enables them to be identified as having been supplied by
Boxkraft ; and
1.3.6 all of the Customer’s present and after-acquired Goods that Boxkraft has performed work on or to or in which goods or materials supplied or financed by Boxkraft 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” shall also mean all goods, services and advice provided by Boxkraft to the Customer and shall include without limitation the manufacture and distribution of packaging products, cardboard boxes, showcards, printing and display materials including technical advice and all charges for labour, hire charges, insurance charges, freight costs, or any fee or charge associated with the supply of Goods by Boxkraft to the Customer.
1.5 “Price” shall mean the cost of the Goods as agreed between Boxkraft and the Customer and includes all disbursements eg charges Boxkraft pay to others on the Customer's behalf subject to clause 4 of this contract.
2.1 Any instructions received by Boxkraft from the Customer for the supply of Goods shall constitute a binding contract and acceptance of the terms and conditions contained herein.
2.2 All orders received are subject to a 10% under- run or over- run. Errors and omissions excepted.
2.3 Confirmed orders cannot be cancelled.
3. COLLECTION AND USE OF INFORMATION
3.1 The Customer authorises Boxkraft 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 provided by Boxkraft to any other party.
3.2 The Customer authorises Boxkraft 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 shall be deemed to be sold at the current amount as such Goods are sold by Boxkraft 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 that is beyond the control of Boxkraft between the date of the contract and delivery of the Goods.
5.1 Unless otherwise agreed payment for Goods and services shall be made in full either:
5.1.1 Within seven (7) days of the date of invoice, or
5.1.2 On or before the 20 th 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 2.5% per month or part month.
5.3 Any expenses, disbursements and legal costs incurred by Boxkraft in the enforcement of any rights contained in this contract shall be paid by the Customer, including any actual 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 Boxkraft for Goods:
6.1.1 Unless otherwise agreed the quotation shall be valid for twenty one (21) 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 Boxkraft reserves the right to alter the quotation because of circumstances beyond its control. All quotations are subject to the availability of stock.
6.2 Where Goods are required in addition to the quotation for example but without limitation artwork, film, plates, cutting formes and freight the Customer agrees to pay for the additional cost of such Goods.
7.1 The Goods remain at Boxkraft ’s risk until delivery to the Customer.
7.2 Delivery of Goods shall be deemed complete when Boxkraft gives possession of the Goods directly to the Customer or possession of the Goods is given to a carrier, courier, or other bailee for purposes of transmission to the Customer.
8. TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999)
8.1 Title in any Goods supplied by Boxkraft passes to the Customer only when the Customer has made payment in full for all Goods provided by Boxkraft and of all other sums due to Boxkraft by the Customer on any account whatsoever. Until all sums due to Boxkraft by the Customer have been paid in full, Boxkraft has a security interest in all Goods.
8.2 If the Goods 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 shall remain with Boxkraft until the Customer has made payment for all Goods, and where those Goods are mixed with other property so as to be part of or a constituent of any new Goods, title to these new Goods shall deemed to be assigned to Boxkraft as security for the full satisfaction by the Customer of the full amount owing between Boxkraft and Customer.
8.3 The Customer gives irrevocable authority to Boxkraft to enter any premises occupied by the Customer or on which Goods are situated at any reasonable time after default by the Customer or before default if Boxkraft believes a default is likely and to remove and repossess any Goods and any other property to which Goods are attached or in which Goods are incorporated. Boxkraft 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. Boxkraft may either resell any repossessed Goods 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 credit the Customer’s account with the invoice value thereof less such sum as Boxkraft reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.
8.4 Where Goods are retained by Boxkraft pursuant to clause 8.3 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.
8.5 The following shall constitute defaults by the Customer:
8.5.1 Non payment of any sum by the due date.
8.5.2 The Customer intimates that it will not pay any sum by the due date.
8.5.3 Any Goods are seized by any other creditor of the Customer or any other creditor intimates that it intends to seize Goods.
8.5.4 Any Goods in the possession of the Customer are materially damaged while any sum due from the Customer to Boxkraft remains unpaid.
8.5.5 The Customer is bankrupted or put into liquidation or a receiver is appointed to any of the Customer’s assets or a landlord distrains against any of the Customer’s assets.
8.5.6 A Court judgment is entered against the Customer and remains unsatisfied for seven (7) days.
8.5.7 Any material adverse change in the financial position of the Customer.
9. PAYMENT ALLOCATION
9.1 Boxkraft may in its discretion allocate any payment received from the Customer towards any invoice that Boxkraft 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 Boxkraft , payment shall be deemed to be allocated in such manner as preserves the maximum value of Boxkraft ’s purchase money security interest in the Goods.
10.1 No claim relating to Goods will be considered unless made in writing within seven (7) days of delivery.
10.2 Pallets will only be credited upon return to Boxkraft in good condition. Outer cartons will not be credited.
11.1 The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon Boxkraft 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 Boxkraft , Boxkraft ’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.
11.2 Except as otherwise provided by clause 11.1 Boxkraft shall not be liable for:
11.2.1 Any loss or damage of any kind whatsoever, arising from the supply of Goods by Boxkraft to the Customer, 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 provided by Boxkraft to the Customer; and
11.2.2 The Customer shall indemnify Boxkraft 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 Boxkraft or otherwise, brought by any person in connection with any matter, act, omission, or error by Boxkraft its agents or employees in connection with the Goods.
12.1 Manufacturer’s Warranties may apply.
13. COPYRIGHT AND INTELLECTUAL PROPERTY
13.1 Boxkraft , owns and has copyright in all goods designed and produced by Boxkraft, drawings, specifications, models, photographs, documents and software produced by Boxkraft in connection with the Goods provided pursuant to this contract and the client may use the Goods only if paid for in full and for the purpose for which they were intended and supplied by Boxkraft .
14. CONSUMER GUARANTEES ACT
14.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Goods from Boxkraft for the purposes of a business in terms of section 2 and 43 of that Act.
15. PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES
15.1 If the Customer is a company or trust, the director(s) or trustee(s) signing this contract, in consideration for Boxkraft agreeing to supply Goods 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 Boxkraft the payment of any and all monies now or hereafter owed by the Customer to Boxkraft and indemnify Boxkraft 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.
16. GENREAL LIEN
16.1 The Customer agrees that Boxkraft may exercise a general lien against any goods and services or property belonging to the Customer that is in the possession of Boxkraft for all sums outstanding under this contract and any other contract to which the Customer and Boxkraft are parties.
16.2 If the lien is not satisfied within 7 days of the due date Boxkraft may, having given notice of the lien at its option either:
16.2.1 Remove such goods and services and store them in such a place and in such a manner as Boxkraft shall think fit and proper and at the risk and expense of the Customer; or
16.2.2 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 the costs of sale with out being liable to any person for damage caused.
17.1 Boxkraft shall not be liable for delay or failure to perform its obligations. Boxkraft shall not be liable for any errors, quality defects, faults or ommissions in customer supplied materials.
17.2 Failure by Boxkraft 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 Boxkraft 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