9.3 The Customer gives irrevocable authority to SUMMIT REFRIGERATION 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 SUMMIT REFRIGERATION believes (in its reasonable opinion) 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. SUMMIT REFRIGERATION 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 anyway whatsoever unless by statute such liability cannot be excluded. SUMMIT REFRIGERATION 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 as set out in these terms) or may retain any repossessed Goods and credit the Customer’s account with the invoice value thereof less such sum as SUMMIT REFRIGERATION reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.
9.4 Where Goods are retained by SUMMIT REFRIGERATION pursuant to clause 9.3 of these terms, the Customer waives the right to receive notice under s.120 of the PPSA & to object under s.121 of the PPSA.
9.5 The following events shall constitute defaults by the Customer:
9.5.1 Non payment of any sum by the due date.
9.5.2 The Customer intimates that it will not pay any sum by the due date.
9.5.3 Any Goods are seized by any other creditor of the Customer or any other creditor intimates that it intends to seize Goods.
9.5.4 Any Goods in the possession of the Customer are materially damaged while any sum due from the Customer to SUMMIT REFRIGERATION remains unpaid.
9.5.5 The Customer is bankrupted or put into liquidation or administration or if a receiver or manager is appointed to the Customer or to any of the Customer’s assets.
9.5.6 A Court judgment is entered against the Customer and remains unsatisfied for seven (7) days.
9.5.7 Any material adverse change in the financial position of the Customer.
9.6 If the Credit Repossession Act 1997 applies to any transaction between the Customer & SUMMIT REFRIGERATION, the Customer has the rights provided in that Act despite anything contained in these terms.
- PAYMENT ALLOCATION
10.1 SUMMIT REFRIGERATION may in its discretion allocate any payment received from the Customer towards any invoice and or costs as provided for in these terms that SUMMIT REFRIGERATION 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 SUMMIT REFRIGERATION, payment shall be deemed to be allocated in such manner as preserves the maximum value of SUMMIT REFRIGERATION security interest in the Goods.
- RETURNS OF GOODS
11.1 No claim relating to the Goods will be considered unless made within seventy two (72) hours of delivery of the Goods to the Customer.
11.2 No Goods will be accepted for return by SUMMIT REFRIGERATION without prior approval of SUMMIT REFRIGERATION. All Goods must be returned to SUMMIT REFRIGERATION in new, original and re saleable condition. Only standard stock items will be accepted for return and goods accepted for return are subject to a restocking fee of $20.00 or 20% of the original invoice value whichever is the greater. Return freight and insurance costs shall be paid by the Customer.
12.1 The Consumer Guarantees Act 1993 (“CGA”), the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon SUMMIT REFRIGERATION 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 SUMMIT REFRIGERATION, SUMMIT REFRIGERATION 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.
12.2 Except as otherwise provided by clause 12.1 of these terms SUMMIT REFRIGERATION shall not be liable for:
12.2.1 Any loss or damage of any kind whatsoever 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 and Services provided by SUMMIT REFRIGERATION to the Customer; and
12.2.2 The Customer shall indemnify SUMMIT REFRIGERATION against all claims & loss of any kind whatsoever however caused or arising & without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of SUMMIT REFRIGERATION or otherwise, brought by any person in connection with any matter, act, omission, or error by SUMMIT REFRIGERATION its agents or employees in connection with the Goods and Services.
- CONSUMER GUARANTEES ACT
13.1 The guarantees contained in the CGA are excluded where the Customer acquires Goods & Services from SUMMIT REFRIGERATION for the purposes of a business in terms of section 2 and 43 of the CGA
14.1 Any cancellation or suspension of any order shall not affect SUMMIT REFRIGERATION claim for money due at the time of cancellation or suspension or for damages for any breach of the agreement to supply the Goods and/or Services or the Customer’s obligations to SUMMIT REFRIGERATION under these terms.
15.1 SUMMIT REFRIGERATION 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 SUMMIT REFRIGERATION to enforce any of these terms shall not be deemed to be a waiver of any of the rights of obligations SUMMIT REFRIGERATION has under these terms.
15.3 If any of these terms shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining terms shall not be affected, prejudiced or impaired.
15.4 The Customer shall not assign all or any of its rights or obligations under these terms without the prior written consent of SUMMIT REFRIGERATION.
15.5 In the case of any conflict between these terms or any other document provided by SUMMIT REFRIGERATION, these terms shall prevail. These terms shall not be modified or varied unless expressed in writing and agreed to by SUMMIT REFRIGERATION and the Customer.
15.6 The Customer by making an order or offer for the Goods by any medium it does so on the basis that the Customer has read, understood and agrees to be bound by these terms having relied solely upon its own judgment. Should the Customer have any queries regarding these terms it should seek independent legal advice before making an order/offer. SUMMIT REFRIGERATION is not responsible for any incorrect interpretation of these terms by the Customer.
15.7 SUMMIT REFRIGERATION retains all rights in or to any intellectual property associated with the Goods or Services irrespective of their sale or delivery to the Customer.
15.8 Unless SUMMIT REFRIGERATION elects otherwise, any dispute between the parties is to be dealt with in accordance with the Arbitration Act 1996.