1.1 ”BCS”shall mean BCS Foodpak Limited, or any agents or employees thereof.
1.2 “Customer” shall mean the customer, or any person acting on behalf of and with the authority of the Customer, or any person purchasing Products or services from BCS.
1.3 “Products” shall mean:
1.3.1 all Products of the general description specified on the front of this agreement and supplied by BCS to the customer, and
1.3.2 all Products supplied by BCS to the Customer, and
1.3.3 all inventory of the Customer that is supplied by BCS, and
1.3.4 all Products supplied by BCS and further identified in any invoice Issued by BCS to the Customer, 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 BCS or that are stored by the Customer in a manner that enables them to be identified as having been supplied by BCS,
1.3.6 all of the Customers present and after acquired Products that BCS has performed work on or to or in which Products or materials supplied or financed by BCS have been attached or incorporated.
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 and services provided by BCS to the Customer, and shall include without limitation the supply of food packaging including paper, plastic, foil and all associated products and services and all charges for
1.5 “Price” shall mean the cost of the Products as agreed between BCS and the Customer and includes all disbursements e.g. charges BCS pay to others on the Customers behalf subject to Clause 4 of this contract.
2.1 Any instructions received by BCS from the Customer for the supply of Products shall constitute a binding contract in acceptance of the terms and conditions contained herein.
3 COLLECTION AND USE OF INFORMATION
3.1 The Customer authorises BCS to collect, retain and use any information about the Customer, or for the purpose of assessing the Customers credit worthiness, enforcing any rights under this contract, or marketing any Products provided by BCS to any other party.
3.2 The Customer authorises BCS 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 clause 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 BCS 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 BCS 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 3.5% per month or part month.
5.3 Any expenses, disbursements and legal costs incurred by BCS in the enforcements of any rights contained in this contract shall be paid by the customer, 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 BCS 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 BCS reserve the right to alter the quotation because of circumstances beyond it’s control.
6.2 Where Products are required in addition to the quotation the Customer agrees to pay for the additional cost of such products.
7.1 The Products remain at BCS’s risk until delivery to the Customer.
7.2 Delivery shall be deemed complete when BCS gives possession of the Products directly to the Customer or possession of the Products is given to a carrier, courier, or other bailee for purposes of transportation or transmission to the Customer.
7.3 The time agreed for delivery shall not be an essential term of this contract unless the Customer gives written notice to BCS making time of the essence.
8.1 The Customer authorises BCS to contract either as principal or agent for the provision of Products that are the subject of this contract.
8.2 Where BCS enters into a contract of the type referred to in clause 8.1 it shall be read with and form part of this agreement and the Customer agrees to pay any amounts due under that contract.
9 TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999)
9.1Title in any property supplied by BCS passes to the Customer only when the Customer has made payment in full for all Products
provided by BCS and of all other sums due to BCS by the Customer on any account whatsoever. Until all sums due to BCS by the
Customer BCS will retain full ownership.
9.2 If the Products 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 Products shall remain with BCS until the Customer has made payment
9.3 The Customer gives irrevocable authority to BCS to enter any premises occupied by the Customer or on which Products are situated at
any reasonable time after default by the Customer or before default if BCS believes a default is likely and to remove a
9.4 Where Products are retained by BCS pursuant to clause 9.3 the Customer waves the right to receive notice under s. 120 of the
Personal Property Act 1999 (“PPSA”) and to object under s.121 of the PPSA.
9.5 The following 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 Products are seized by any other creditor of the Customer or any other creditor intimates that it intends to seize Products.
9.5.4 Any Products in the possession of the Customer are materially damaged while any sum due from the Customer to BCS remains
9.5.5 The Customer is bankrupted or put into liquidation or a receiver bis appointed to any of the Customer”s assets or a landlord disdains
against any of the Customers assets.
9.5.6 A Court judgement 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 applies to any transaction between the Customer and BCS, the Customer has the rights provided in that
Act despite anything contained in these terms and conditions of trade.
10 PAYMENT ALLOCATION
10.1 BCS may at it’s discretion allocate any payment received from the Customer towards any invoices that BCS determines and may do
so the time of receipt or at any time afterwards and on default by the Customer may reallocate any payments previously received.
11.1 Manufactures warranty applies where applicable.
11.2 No representation, condition, warranty or premise expressed or implied by law or otherwise applies to the Customer except where
goods are supplied or services provided pursuant to the Customer Guarantees Act 1993 or except where expressly stated in t
11.3 BCS does not provide any warranty that the Products are fit and suitable for the purpose for which they are required by the Customer
and shall not be liable if they are not.
12 DISPUTES AND RETURN OF GOODS
12.1 No claim relating to products and services will be considered unless made within seven (7) days of delivery.
12.2 If the Products are not accepted according to clause 12.1 Products can only be returned after the Customer has received approval
from BCS, has agreed to pay for the delivery of the returned Products and the Products are in the same resale-able condition.
13.1 The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose
obligations upon BCS which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of
13.2 Except as otherwise provided by clause 13.1 BCS shall not be liable for:
13.2.1 Any loss or damage of any kind whatsoever including consequential loss suffered or incurred by the Customer or other person and
whether in contract, or tort (including negligence), or otherwise and wether such loss or damage arises directly or indirectly.
13.2.2 The Customer shall indemnify BCS 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 BCS or others.
14 CONSUMER GUARANTEES ACT
14.1 The guarantees contained in the Consumer Guarantees Act, 1993 are excluded where the Customer acquires products and services
from BCS for the purposes of a business in terms of section 2 and 43 of the 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 BCS agreeing to supply
Products and grant credit to the Customer at their request, also sign this contract in their personal capacity.
16.1 BCS shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
16.2 Failure by BCS to enforce any of the terms or conditions contained in this contract shall not be deemed to be a waiver of any of the
rights or obligations BCS has under this contract.
16.3 If any provisions of this contract shall be invalid, void or illegal or unenforceable the validity existence, legally and enforceability of the
remaining provisions shall not be affected, prejudiced or impaired.