TERMS AND CONDITIONS OF TRADING (2014) – JPS MARKETING LTD
1. Where a credit facility has been approved, payment is due in FULL on the 20th of month following date of invoice. In the event of non payment, the credit facility can be withdrawn or cancelled without notice and any orders/indents can be cancelled. JPS Marketing Ltd (“JPS”) will be under no obligation to accept orders when credit has been withdrawn.
2. Any expenses, costs or disbursements incurred by JPS in recovering any outstanding monies, including debt collection agency or legal fees, shall be recoverable from the Purchaser. If the account is more than 30 days past the due date, JPS shall be entitled to charge the Purchaser interest on any outstanding payment at the rate of 2% per month from the date of invoice.
3. Ownership and the PPSA (“Personal Property Securities Act 1999”)
3.1 Title to and ownership of all goods sold by JPS shall not pass until all monies owing have been paid in full.
3.2 The Purchaser acknowledges and agrees that JPS may register any security interest that it has in respect of the goods and their proceeds on the Personal Property Securities Register, and that such security interest survives until the goods are fully paid for.
3.3 Until payment to JPS has been made in full for the goods, the Purchaser acknowledges and agrees that:
- JPS supplies the goods to the Purchaser on terms on the condition that JPS has a PMSI (“Purchase Money Security Interest”) in the goods;
- In relation to the goods that are inventory, the Purchaser will not allow any non purchase money security interest to arise in respect of the goods unless JPS has perfected its PMSI prior to the Purchaser’s possession of the goods;
- The Purchaser will not permit the goods to become accessions or commingled with the other goods or mass if JPS has not perfected any security interest that JPS has in relation to the goods; and
- If the Purchaser (not withstanding Clause 3.1 of this agreement) sells the goods prior to payment for the same to JPS, the Purchaser will pay the proceeds arising from that dealing into a separate account with separate records so that those proceeds remain identifiable and traceable to that dealing and the goods. The Purchaser agrees that there will be no other funds in the account. If the Purchaser further deals with such proceeds, the Purchaser will manage that dealing or dealings in a manner having the result that the proceeds remain identifiable or traceable to the original goods. If the Purchaser sells the goods prior to payment for same to JPS, all claims which the Purchaser holds against third parties shall be handed over to JPS.
3.4 If JPS perfects any security interest in relation to the goods, the Purchaser will not do anything that results in JPS having less than the security or priority position in respect of the PPSA that JPS assumed at the time of that perfection.
3.5 The Purchaser irrevocably gives JPS and it’s agents the right to enter upon the Purchaser’s premises, without giving notice and without being in any way liable to the Purchaser, or to any person or JPS claiming through the Purchaser, if JPS has sufficient cause to exercise any rights that JPS has under Section 109 of the PPSA.
3.6 If JPS is a secured party under the PPSA:
- The parties contract out of Part 9 of the PPSA in the following manner; the rights and obligations contained in Sections 114, 125, 129, 132, 133, and 134 of that part do not apply between JPS and the Purchaser; and
- The Purchaser waives its rights granted in Sections 121 and 131 of the PPSA. Further in accordance with Section 148 of the PPSA, the Purchaser waives its right to receive any financing statement or financing change statement from JPS.
3.7 The Purchaser will assist JPS by completing any formalities or providing any information required by JPS such that JPS may establish and maintain the best security position that it is entitled to under the PPSA.
4. Pursuant to the provisions of the Privacy Act 1993, the Purchaser authorises any person, agency or company to provide JPS with such information as may be required at any time in response to credit enquiries concerning any aspect of this trading account. The Purchaser authorises JPS to furnish to any third party details of this application being actioned and/or any subsequent details concerning credit enquiries. The Purchaser consents to JPS collecting any information as may be required to evaluate their credit worthiness. The Purchaser also consents to the passing of information to Credit Agencies or Debt Collection Agencies if the Purchaser fails to meet JPS’ financial commitment.
5. Intellectual Property:
5.1 Where JPS has followed a design or instruction furnished by or given by the Purchaser, the Purchaser shall indemnify JPS against all damages, penalties, costs and expenses of JPS or in respect of which JPS may become liable through any work required to be done in accordance with these instructions involving an infringement of a patent, trademark, registered design or common law right.
5.2 Should JPS be required to match any shade or colour, a light and dark tolerance shall be allowed to such an extent as shall be agreed by JPS and the Purchaser at the time the standard colour is specified, and in the absence of any agreement a reasonable tolerance shall be allowed.
5.3 The goods supplied will be to the quality and colour of samples. A degree of variation in quality and colour may occur but will be within industry tolerances.
5.4 JPS shall not be liable for any loss or damage to moulds, dies, tools or materials supplied by the Purchaser to JPS for the purposes of fulfilling any contract.
5.5 Printing plates, film, artwork and all other equipment for specific use in the manufacture of the goods (other than those supplied by the Purchaser) remain the property of JPS unless the cost thereof (including all development and costs relating thereto) have been fully recovered by JPS.
5.6 All information prepared by JPS including, without limitation, customised pricing, proposals, electronic catalogues, details of improvements and cost reductions, is the intellectual property of JPS and cannot be copied, altered or distributed without JPS’s prior written consent. JPS will not be liable for any alterations made by the Purchaser.
6. The risk of loss or damage to the goods from whatever cause arising, shall pass to the Purchaser, at the time of delivery to the address nominated by the Purchaser.
7. If the Purchaser holds all goods supplied by JPS for which JPS has not received full payment, in a fiduciary capacity for and on behalf of JPS, the Purchaser will not give possession of such goods to any other party.
8. If the goods are sold by the Purchaser before JPS has received payment in full for those goods, the proceeds of such sale shall be held in trust for JPS.
9. Contract and conditions of carriage are subject to the terms and conditions of the Supplier’s carrier in the case of direct delivery; or JPS’ carrier.
10. First orders are C.O.D, unless prior arrangements are made with JPS.
11. All claims for shortages or credits must be made in writing within 7 days of receipt of goods.
12. All disputes must be submitted in writing within 7 days of receipt of invoice. Any part of the invoice not disputed will be payable under the normal terms and conditions.
13. JPS reserves the right to short supply or oversupply a product by 5%. The Purchaser will pay for any such oversupply at the unit price for the delivered goods.
14. Should circumstances beyond the control of JPS prevent or hinder delivery, JPS will be free from any obligation to deliver goods while such circumstances continue. Such circumstances beyond the control of JPS include, but are not limited to: strikes, lockouts, rebellions, fire, acts of God, shortages of raw materials, malfunctions or failures of computers, or other information technology systems.
15. While JPS endeavours to keep delivery dates, any delay of delivery, for any reason whatsoever, will not entitle the Purchaser to claim for any consequential loss or damage, or to cancel, rescind or terminate the agreement.
16. Placement of an order implies acceptance of these terms.