Kowtow Clothing Ltd Wholesale Terms & Conditions of Sale.
For New Zealand Buyers Only.
Once an order has been submitted by the Buyer, the Buyer is contractually committed to carry out the sale at the agreed price unless otherwise agreed to in writing by both parties.
2.1 Payment is due 14 days from receiving invoice, unless otherwise agreed to in writing by both parties. Kowtow Clothing Ltd. will accept payment by cheque or direct bank transfer.
2.2 A 2.5% monthly late charge will be levied on overdue account balances. If at 60 days the debt remains unpaid Kowtow Clothing Ltd has the right to charge an administration fee at 10%, this is a recurring monthly fee thereafter.
2.3 Collection costs will be added to the debt in the event that the debt is not paid by the due date and all costs incurred in the recovery of the debt are payable by the debtor (person, company, partnership, trust, organisation or any other entity that owes a debt to Kowtow Clothing Ltd).
2.4 Should litigation ensue the costs of solicitors are payable by the debtor.
2.5 Payments for sales within New Zealand will be made in New Zealand dollars.
3. Payment for New Buyers
New Buyers must complete an Account Application form as supplied by Kowtow Clothing Ltd. A 50% deposit must be received by Kowtow Clothing Ltd before the goods are delivered. The remainder of the payment will be due 14 days from invoice.
4. Ordering Procedure
A Kowtow Clothing Ltd Account Application Form must be correctly filled out, signed by the Buyer and approved by Kowtow Clothing Ltd. Once the Account Application Form has been approved by Kowtow Clothing Ltd the Buyer can proceed with placing an order and is legally bound to the agreements therein including these Terms and Conditions of Sale.
After the placement of an order Kowtow Clothing Ltd will provide the Buyer with a Sales Confirmation. Once a Sales Confirmation has been issued, the Buyer is legally bound to the order and any agreements therein including these terms and conditions.
5. Retention of Title
Title to the goods shall remain vested in Kowtow Clothing Ltd and shall not pass to the Buyer until the purchase price for the goods has been paid in full and received by Kowtow Clothing Ltd. Until title to the goods passes:
a) Kowtow Clothing Ltd shall have authority to retake, sell or otherwise deal with and/or dispose of all or any part of the goods;
b) Kowtow Clothing Ltd and its agents and employees shall be entitled at any time and without the need to give notice enter upon any property upon which the goods or any part are stored, or upon which Kowtow Clothing Ltd reasonably believes them to be kept;
c) The Buyer shall store or mark the goods in a manner reasonably satisfactory to Kowtow Clothing Ltd indicating that title to the goods remains vested in Kowtow Clothing Ltd;
d) The Buyer shall insure the goods to their full replacement value, and arrange for Kowtow Clothing Ltd to be noted on the policy of insurance as the loss payee. Irrespective of whether title to the goods remains vested in Kowtow Clothing Ltd, risk in the goods shall pass to the Buyer upon delivery.
6. Shipping Terms
Goods are delivered within New Zealand by courier. Freight is covered by The Buyer and the courier charge will be specified on the invoice.
GST is not included in the price and will be invoiced additionally to the agreed price.
8.1 Force majeure
No Party shall be liable for any failure to perform its obligations where such failure is as a result of Acts of Nature (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalisation, government sanction, blockage, embargo, labour dispute, strike, lockout or interruption or failure of electricity or [telephone service], and no other Party will have a right to terminate this agreement in such circumstances. Any Party asserting Force Majeure as an excuse shall have the burden of proving that reasonable steps were taken (under the circumstances) to minimize delay or damages caused by foreseeable events, that all non-excused obligations were substantially fulfilled, and that the other Party was timely notified of the likelihood or actual occurrence which would justify such an assertion, so that other prudent precautions could be contemplated.
8.2 Delivery date shown on the ‘Sales Confirmation’ form is an estimate only and Kowtow Clothing Ltd will use all reasonable endeavors to delivery by such date.
9.1 Kowtow Clothing Ltd may cancel this contract at any time by giving written notice. Kowtow Clothing Ltd shall not be liable to any loss or damage whatsoever arising from such cancellation.
9.2 Cancellation or alteration to the order by the Buyer after the order close off date as stated on the order form may be subject to a cancellation fee representing 50% of the value of the cancelled order at the discretion of Kowtow Clothing Ltd.
9.3 Cancellation of any order by the Buyer must be submitted in writing. Kowtow Clothing Ltd has no obligation to accept cancellation of any part of the order once the order has been submitted by the Buyer. Decisions regarding the acceptance of any part of the order are at the discretion of Kowtow Clothing Ltd.
10. Risk of Loss
Once the goods have been delivered and signed by the Buyer all risk of loss is the responsibility of the Buyer.
11. Inspection of Goods on Receipt
Unless the Buyer has inspected the goods and given written notice to Kowtow Clothing Ltd within seven (7) days after delivery that the goods do not comply with the relevant specifications or descriptions, the goods are deemed to have been accepted in good order and condition.
12. Return of Goods
No returns will be accepted unless Kowtow Clothing Ltd has previously agreed in writing. If Kowtow Clothing Ltd agrees to the return of Goods, they must be unsoiled, undamaged and in a re-saleable condition (or Buyer pays for all costs of replacement or repair) and delivered free to Kowtow Clothing Ltd premises unless otherwise agreed by Kowtow Clothing Ltd in writing.
At times, garments will not be produced, or will be produced but not be up to the quality expected by Kowtow Clothing Ltd. While every attempt will be made to avoid non-delivery, if such a situation arises, non-delivery of garments will be accepted by the Buyer and Kowtow Clothing Ltd will accept no liability for resulting losses to the Buyer. The Buyer will not be invoiced for non-delivered goods.
Kowtow Clothing Ltd will insure the goods up until delivery to the Buyers specified location. Thereafter, the goods are the responsibility of the Buyer.
15.1 Kowtow Clothing Ltd warrants that the goods delivered meet the Buyers specifications as stated on the ‘Order Form’ and signed ‘Sales Confirmation’. Once delivered the Buyer assumes all risk and liability resulting from use of the goods.
15.2 If any fault is evident within the goods, that is a result of faulty manufacturing Kowtow Clothing Ltd will replace the goods. If the goods are no longer in stock a credit will be offered.
If any fault in the goods is deemed to be from misuse, wear and tear, tampering or not following care instructions no refund or replacement will be offered.
17. No Sale by Description or Sample
Unless otherwise expressly agreed in writing, Kowtow Clothing Ltd does not warrant that the goods conform to any specific description or sample. Kowtow Clothing Ltd reserves the right to alter or remove its product dimensions, drawings, specifications, designs, materials, components, fabrics, patterns, printing techniques, colours, printed materials, packaging, promotional material, construction methods and/or offers included with purchase. Kowtow Clothing Ltd may do so without notice. Any such alterations shall not impose upon Kowtow Clothing Ltd an obligation to alter goods that it already delivered to the Purchaser. Any description of the goods, whether given verbally or appearing in Kowtow Clothing Ltd sales literature, catalogues or otherwise, shall not constitute a sale by description, unless Kowtow Clothing Ltd expressly agrees in writing that such description forms a condition of sale. An inspection by the Buyer of the goods, or a demonstration of the goods, shall not constitute a sale by sample. Unless otherwise expressly agreed in writing, it is not a condition of sale that the goods correspond precisely with the dimensions and specifications appearing in any product literature or with any sample that may have been shown or demonstrated to the Buyer. All samples remain the property of Kowtow Clothing Ltd, unless stated otherwise.
18. Personal Property Securities Act 1999
18.1 Upon assessing to these terms and conditions of sale the Buyer acknowledges and agrees that:
a) These terms and conditions of sale constitute a security agreement for the purposes of the PPSA; and
b) A security interest is taken in all Goods previously supplied by Kowtow Clothing Ltd to the Buyer (if any) and all the Goods that will be supplied in the future by Kowtow Clothing Ltd to the Buyer during the continuance of the parties relationship,
18. 2 The Buyer undertakes to:
a) sign any further documents and/or provide any further information, such information to be complete, accurate and up-to-date in all respects, which Kowtow Clothing Ltd may reasonably require to register a financing statement or financing charge statement on the Personal Property Securities Register;
b) not register a financing charge statement or a charge demand without the prior written consent of Kowtow Clothing Ltd;
c) give Kowtow Clothing Ltd not less than fourteen (14) days prior written notice of any proposed change in the Buyer’s name and/or other change in the Buyer’s details (including but not limited to changes in the Buyer’s address, fax number, email or business practice) and
d) i mmediately advise Kowtow Clothing Ltd of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales
e) Kowtow Clothing Ltd and the Buyer agree that nothing in 114(1) (a), 133 and 134 of the PPSA shall apply to the Terms and Conditions of Sale.
f) The Buyer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129 and 132 of the PPSA
18.3 Unless otherwise agreed to in writing by Kowtow Clothing Ltd, the Buyer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
18.4 The Buyer unconditionally ratifies any actions taken by Kowtow Clothing Ltd under and by the virtue of the power of attorney given by the Buyer to Kowtow Clothing Ltd under clauses 18.1 and 18.3
19. Compliance with Law
The Buyer must comply with all legislation relating to the usage and description of the merchandise.
20. Intellectual Property
The content and design of all products and logos are copyright and belong to Kowtow Clothing Ltd. The Buyer may not use any intellectual property without written permission.
21. Privacy Act Considerations
All information given to Kowtow Clothing by the buyer will only be used in a manner which complies with New Zealand Privacy Laws.
22. Governing Law
New Zealand law and the decisions of its courts shall be the exclusive place of jurisdiction with respect to any question or controversy that may arise hereunder from disputes or transactions with Kowtow Clothing Ltd.
If any provision contained in these Conditions of Sale is held by a court to be unlawful, invalid or unenforceable, the validity and enforce-ability of the remaining provisions are not affected.