1.1 “FWSL” shall mean Fusion Workplace Services Limited, or any agents or employees thereof.
1.2 “Client” shall mean the Client, any person acting on behalf of and with the authority of the Client, or any person purchasing products and services from FWSL.
1.3 “Products” shall mean:
1.3.1 all Products of the general description specified on the front of this agreement and supplied by FWSL to the Client; and
1.3.2 all Products supplied by FWSL to the Client; and
1.3.3 all inventory of the Client that is supplied by FWSL; and
1.3.4 all Products supplied by FWSL and further identified in any invoice issued by FWSL to the Client, which invoices are deemed to be incorporated into and form part of this agreement; and
1.3.5 all Products that are marked as having been supplied by FWSL or that are stored by the Client in a manner that enables them to be identified as having been supplied by FWSL; and
1.3.6 All of the Client’s present and after-acquired Products that FWSL has performed work on or to or in which goods or materials supplied or financed by FWSL 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 “Products” shall also mean all products, goods, services and advice provided by FWSL to the Client and shall include without limitation the assembly, supply and installation of commercial furniture, joinery and building of offices and all charges for labour, hire charges, insurance charges, or any fee or charge associated with the supply of Products by FWSL to the Client.
1.5 “Price” shall mean the cost of the Products as agreed between FWSL and the Client and includes all disbursements e.g. charges FWSL pay to others on the Client’s behalf subject to clause 4 of this contract.
2.1 Any instructions received by FWSL from the Client 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 Client authorises FWSL to collect, retain and use any information about the Client, for the purpose of assessing the Client’s credit worthiness, enforcing any rights under this contract, or marketing any Products provided by FWSL to any other party.
3.2 The Client authorises FWSL to disclose any information obtained to any person for the purposes set out in clause 3.1.
3.3 Where the Client 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 Products shall be deemed to be sold at the current amount as such Products are sold by FWSL 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 FWSL 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 2.5% per month or part month.
5.3 Any expenses, disbursements and legal costs incurred by FWSL in the enforcement of any rights contained in this contract shall be paid by the Client, 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 FWSL 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 FWSL reserve the right to alter the quotation because of circumstances beyond its control.
6.2 Where Products are required in addition to the quotation the Client agrees to pay for the additional cost of such Products.
7.1 The time agreed for delivery shall not be an essential term of this contract.
7.2 Where FWSL is to perform relocation services pursuant to this Contract, the Customer hereby acknowledges and declares that this Contract is a contract for carriage at owner’s risk entirely and FWSL, as carrier, shall not be liable for the loss or damage to any goods except where such loss or damage is intentionally caused by FWSL or its contractors, agents or employees.
7.3 It shall be the sole responsibility of the Customer to arrange its own insurance in respect of the goods to be installed, relocated and/or stored pursuant to this Contract and the installation, relocation and/or storage thereof UNLESS:
(a) At the time the Quotation is accepted by the Customer, the Customer expressly requests FWSL, as the Customer’s agent, to arrange insurance in respect of the said goods and/or services AND
(b) The Customer pays to FWSL/the insurer the full amount of the premium for such insurance prior to the commencement of the relocation/storage AND
(c) The Customer, simultaneously with the delivery to FWSL of written acceptance of the Quotation, delivers to FWSL a signed and completed insurance proposal (as provided by FWSL).
Irrespective of whether the Customer arranges its own insurance, requests FWSL to arrange insurance on its behalf, or fails to arrange any insurance whatsoever, where FWSL is to perform relocation services, this Contract shall, at all times, remain a contract of carriage at owner’s risk as detailed in clause 7.4 above.
7.4 If the Customer complies with all of the provisions of paragraphs 7.3(a), 7.3(b) and 7.3(c) above, FWSL shall, as agent for and on behalf of the Customer, arrange for the issue of the appropriate insurance policy. The insurance cover provided by such policy shall be subject to the following conditions:
(d) Any such cover shall be specifically subject to the terms and conditions contained in the relevant policy of insurance issued pursuant to the proposal which has been completed by the Customer, and such cover shall be limited to the amount specified in such proposal.
(e) Such insurance cover shall extend for the period commencing with the removal of the goods (the subject of this Contract) from the place of origin to the delivery, by FWSL, to the destination specified in the Quotation, unless otherwise specified in the proposal.
(f) Where such insurance policy does not specifically extend cover to the period during which goods (the subject of this Contract) are placed in storage (whether at the place of origin, the place of discharge, the place of destination or such other location) then the Customer acknowledges that such transit insurance shall cease immediately the goods are placed into such store and in each such case, the Customer shall, if the Customer requires the goods to be insured during such storage, be obliged to arrange such insurance either direct with an insurance company of the Customer’s choosing or through FWSL as agent for an insurance company as detailed on the policy document.
8. TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999)
8.1 Title in any Products supplied by FWSL passes to the Client only when the Client has made payment in full for all Products provided by FWSL and of all other sums due to FWSL by the Client on any account whatsoever. Until all sums due to FWSL by the Client have been paid in full, FWSL has a security interest in all Products.
8.2 If the Products are attached, fixed, or incorporated into any property of the Client, by way of any manufacturing or assembly process by the Client or any third party, title in the Products shall remain with FWSL until the Client has made payment for all Products, and where those
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 FWSL as security for the full satisfaction by the Client of the full amount owing between FWSL and Client.
8.3 The Client gives irrevocable authority to FWSL to enter any premises occupied by the Client or on which Products are situated at any reasonable time after default by the Client or before default if FWSL 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. FWSL shall not be liable for any costs, damages, expenses or losses incurred by the Client 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. FWSL may either resell any repossessed Products and credit the Client’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 Client’s account with the invoice value thereof less such sum as FWSL reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.
8.4 Where Products are retained by FWSL pursuant to clause 8.3 the Client 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 Client:
8.5.1 Non- payment of any sum by the due date.
8.5.2 The Client intimates that it will not pay any sum by the due date.
8.5.3 Any Products are seized by any other creditor of the Client or any other creditor intimates that it intends to seize Products.
8.5.4 Any Products in the possession of the Client are materially damaged while any sum due from the Client to FWSL remains unpaid.
8.5.5 The Client is bankrupted or put into liquidation or a receiver is appointed to any of the Client’s assets or a landlord distains against any of the Client’s assets.
8.5.6 A Court judgment is entered against the Client and remains unsatisfied for seven (7) days.
8.5.7 Any material adverse change in the financial position of the Client.
8.6 If the Credit Repossession Act applies to any transaction between the Client and FWSL, the Client has the rights provided in that Act despite anything contained in these terms and conditions of trade.
9. SECURITY INTEREST FOR SERVICE PROVIDERS
9.1 The Client gives FWSL a security interest in all of the Client’s present and after-acquired property that FWSL has performed services on or to or in which goods or materials supplied or financed by FWSL have been attached or incorporated.
10.1 The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon FWSL 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 FWSL, FWSL’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.
10.2 Except as otherwise provided by clause 10.1 FWSL shall not be liable for:
10.2.1 Any loss or damage of any kind whatsoever including consequential loss whether suffered or incurred by the Client 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 Products provided by FWSL to the Client; and 10.2.2 The Client shall indemnify FWSL 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 FWSL or otherwise, brought by any person in connection with any matter, act, omission, or error by FWSL its agents or employees in connection with the Products.
11.1 Manufacturer’s warranty applies where applicable.
11.2 No representation, condition, warranty or premise expressed or implied by law or otherwise applies to the Products except where goods are supplied or services provided pursuant to the Consumer Guarantees Act 1993 or except where expressly stated in this contract.
11.3 FWSL does not provide any warranty that the Products are fit and suitable for the purpose for which they are required by the Client and shall not be liable if they are not.
12. OCCUPATIONAL HEALTH AND SAFETY STANDARDS
12.1 The Client is obliged to ensure:
12.1.1 That all work sites comply with Occupational Health and Safety Statutory Requirements Regulations and Standards;
12.1.2 That there is always proper means of access to the work site;
13. CONSUMER GUARANTEES ACT
13.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Client acquires Products from FWSL for the purposes of a business in terms of section 2 and 43 of that Act.
14. PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES
14.1 If the Client is a company or trust, the director(s) or trustee(s) signing this contract, in consideration for FWSL agreeing to supply Products and grant credit to the Client at their request, also sign this contract in their personal capacity and jointly and severally personally undertake as principal debtors to FWSL the payment of any and all monies now or hereafter owed by the Client to FWSL and indemnify FWSL against non- payment by the Client. Any personal liability of a signatory hereto shall not exclude the Client in any way whatsoever from the liabilities and obligations contained in this contract. The signatories and Client shall be jointly and severally liable under the terms and conditions of this contract and for payment of all sums due hereunder.
15.1 FWSL shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
15.2 Failure by FWSL 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 FWSL has under this contract.
15.3 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.