PRO TOOLS SOLUTIONS LIMITED
TERMS & CONDITIONS
1 – DEFINITIONS
1.1 In these Terms & Conditions unless the context otherwise requires:PTS means Pro Tools Solutions Limited;You means the person, firm or company buying the goods from PTS;
(a) all products supplied by PTS to you; and
(b) all products described in any invoice issued by PTS to you in respect of each order placed by you.
PPSA means the Personal Property Securities Act 1999.
Price means the total price stated in this contract or as otherwise agreed between PTS and you or where no price is stated the goods shall be deemed to be sold at the current amount as such goods are sold by PTS at the time of the contract;
2 – ACCEPTANCE
2.1 Any instructions received by PTS from you for the supply of goods shall constitute a binding contract and acceptance of the terms and conditions contained herein.
3 – PAYMENT
3.1 Unless otherwise agreed payment for the goods shall be made in full in cash on delivery/collection of the goods.
3.2 You shall not be entitled to withhold payment, or to make any deductions from, or setoff against, the price without the prior written consent of PTS.
3.3 If you fail to take or accept delivery of the goods when notified that delivery is possible, you shall nevertheless make payment as set out as if delivery has been effected.
3.4 Interest at the rate of 20% per annum calculated on a daily basis shall be payable on any moneys outstanding under the contract from the date payment was due until the date payment is received by PTS but without prejudice to PTS’s other rights and remedies arising from such default.
3.5 Any expenses, disbursements and legal costs incurred by PTS in taking any action to enforce any rights contained in this contract as a result of your default shall be paid by you.
4.1 Any quote given by PTS for goods shall be valid for thirty (30) days from the date of issue.
5- PRIVACY ACT
5.1 You authorise PTS to collect, retain and use any information about you, for the purpose of assessing your credit worthiness, enforcing any rights hereunder, or marketing any goods provided by PTS to any other party.
5.2 You authorise PTS to disclose any information obtained to any person for the purposes set out in clause 5.1.
5.3 If you are a natural person the authorities under clauses 5.1 and 5.2 are authorities or consents for the purposes of the Privacy Act 1993.
6 – DELIVERY
(a) Delivery will be completed upon receipt of the goods by a carrier for delivery to you (where a carrier is used) or upon receipt of the goods by or on behalf of you where a carrier is not used. You shall make all arrangements necessary to take delivery of the goods whenever they are tendered for delivery; or
(b) PTS will deliver the goods to the place nominated by you.
6.2 The carrier shall be deemed to be your agent and PTS accepts no responsibility for damage to goods during transit unless delivered by PTS.
6.3 PTS may charge storage and transportation expenses if you fail, or refuse to, take or accept delivery or indicate to PTS that you will fail or refuse to take or accept delivery at the specified time.
6.4 PTS will make every effort to deliver goods in a timely manner but accepts no responsibility for delay in delivery howsoever caused.
7 – RETURNS
7.1 All returned goods must be in the same condition that they were dispatched in.
7.2 You are deemed to have accepted each order unless written notice of any faulty or damaged or incorrect goods is given to PTS within 10 days of the date of supply. PTS will, at its option provide a replacement or refund in full the price paid, for goods which are delivered faulty or damaged or are incorrect goods.
7.3 Delivery of short or incorrect orders must be reported to PTS within 5 days of their receipt together with the invoice number.
8 – LIABILITY
8.1 The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon PTS which cannot by law (or which can only to a limited extent by law) be excluded or modified. To the fullest extent permitted by law, PTS shall not be liable for any loss or damage of any kind whatsoever including consequential loss whether suffered or incurred by you 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 PTS to you.
8.2 No agent or representative of PTS is authorised to make any representations, statements, warranties, conditions or agreements not expressly set forth in these Terms and Conditions and PTS is not in any way bound by any such statements nor can any such statement be taken to form part of any contract with PTS.
8.3 The liability, if any, of PTS arising from breach of any of PTS’s obligations under the contract, from any cancellation of the contract or from negligence on the part of PTS, its servants, agents or contractors shall be limited to damages which shall not in total exceed the contract price.
8.4 PTS shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its reasonable control.
8.5 You shall indemnify PTS, its officers, employees and agents 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 PTS or otherwise, brought by any persons in connection with any matter, act, omission or error by PTS, its agents or employees in connection with the goods.
9 – DEFAULT AND INDEMNITY
9.1 If you default in payment of any money owed to PTS, whether under the contract or otherwise, or if you are in default in the performance of your obligations under the contract or otherwise or become insolvent, PTS may without prejudice to its other rights and remedies, suspend or terminate the contract, and payment for the goods supplied up to the date of such suspension or termination and any other moneys owed to PTS shall immediately become due and payable.
10 – CONSUMER GUARANTEES ACT
10.1 It is agreed and acknowledged by you that where the services are supplied for the purposes of a business, the provisions of the Consumer Guarantees Act 1993 shall not apply.
11 – PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES
11.1 If you are a company or trust, the director(s) or trustee(s) signing this contract, in consideration of PTS agreeing to supply the goods and grant credit to you at your request, also sign this contract in their personal capacity and jointly and severally personally undertake as principal debtors to PTS the payment of any and all moneys now or hereafter owed by you as the customer to PTS and indemnify PTS against non-payment by the customer. 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.
12 – SECURITY INTEREST FOR SERVICES
12.1 Notwithstanding that the goods may have already been delivered to you, ownership and title to the goods remains with PTS until you have made payment in full for all goods provided by PTS and for all other sums due to PTS by you on any account whatsoever.
12.2 You give an irrevocable authority to PTS to enter any premises occupied by you or on which the goods are situated at any reasonable time after default by you and to remove and repossess any goods and any other property to which goods are attached or in which goods are incorporated, but subject to the Credit (Repossesion) Act 1997. PTS shall not be liable for any costs, damages, expenses or losses incurred by you 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. PTS may either re-sell any repossessed goods and credit your 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 your account with the invoice value thereof less such amount as PTS reasonably determines on account of wear and tear, depreciation, obsolescence, loss of profit and costs. PTS is under no obligation to give any notice of its intention to exercise its rights contained in this clause.
12.3 Where goods are retained by PTS pursuant to clause 12.2 you waive the right to receive notice under section 120 of the PPSA and to object under section 121 of the PPSA.
12.4 To secure payment of all sums due by you to PTS, you grant a security interest in all of your personal property (as defined in the PPSA) including all goods, and a fixed charge over all of your real property. You will do all things and execute and arrange for execution for all such documents as in PTS’s opinion are necessary or desirable to ensure that PTS has a perfected first ranking security interest in the goods.
12.5 You waive your rights under the PPSA to receive a copy of any verification statement, financing statement or financing change statement and unconditionally and irrevocably agree that:
(a) To the maximum extent permitted, you have no rights under or by reference to sections 114(1)(a), 133 and 134 of the PPSA;
(b) You have none of the rights referred to in sections 107(2)(a), (c), (d), (e), (h) and (i) of the PPSA;
(c) Where PTS has rights in addition to, or existing separately from, those in part 9 of the PPSA, those rights will continue to apply and, in particular, those rights will not be limited by section 109; and
(d) You will immediately notify PTS of any change in your name; and
(e) You will not register a financing change statement or a change demand without the prior written consent of PTS.
13 – FURTHER ASSURANCES
13.1 You irrevocably appoint PTS and each of its duly authorised officers, severally, to be your attorney to complete, execute and otherwise perfect all assignments, transfers, security interests and other agreements and documents generally to do all other acts which you are obliged or ought to do under these Terms and Conditions to secure the payment of any amount payable to PTS and performance of and compliance with any other obligations to PTS. You agree that PTS is entitled at any time to lodge a caveat over any of your real property, including prior to demanding execution and delivery of a mortgage over such real property, to protect PTS’s interests under these Terms and Conditions.
14 – MISCELLANEOUS
14.1 Failure by PTS 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 PTS has under this contract.
14.2 If any provision of this contract is found to be invalid or unenforceable then that shall not affect the validity or enforceability of the remaining provisions.
14.3 For the purposes of the Contracts (Privacy) Act 1992, you acknowledge and accept that your obligations under these Terms and Conditions will be enforceable by PTS, notwithstanding that PTS may not sign these Terms and Conditions.