Bananaworks Communications Limited

Terms and Conditions of Trade

1.         Definitions: ‘Bananaworks’ shall mean Bananaworks Communications Limited, its successors and assigns. ‘T&C’ means this Terms and Conditions of Trade. ‘Person’ includes a corporation, association, firm, company, partnership or individual. ‘Purchaser’ means the person purchasing the goods from Bananaworks and/or as identified as the 'applicant' on the Client Account Application Form of Bananaworks, including the person’s successors and assigns. ‘Goods’ means goods ordered by the Purchaser from time to time under this contract and include any services forming part of the supply of the goods. ‘Event of default’ means an event where: the Purchaser fails to comply with this contract or any other contract with Bananaworks including failure to make payment in full by the due date; or the Purchaser has an execution levied against it, becomes insolvent or commits an act of bankruptcy; or the Purchaser enters into any composition or arrangement with its creditors; or if the Purchaser is a company: the Purchaser does anything which would make it liable to be put into liquidation, a resolution is passed or an application is made for the liquidation of the Purchaser; or a receiver or official manager is appointed over all or any of the Purchaser’s property or undertaking. ‘Ownership’ includes legal and beneficial ownership. ‘Price’ means the purchase price of the goods and any costs payable by the Purchaser under this contract relating to transportation, storage and insurance.

2.        Acceptance: Any instruction received by Bananaworks from the Purchaser, or consent given by the Purchaser, for the supply of goods and/or services shall constitute acceptance of these terms & conditions.

3.        Quotations: A quotation does not give rise to a binding contract until an order has been placed and confirmed by Bananaworks. A quotation may be withdrawn at any time before acceptance, and will lapse if it is not accepted within 20 days.

4.        Cost Estimate: A cost estimate is a best summation of the all the costs involved in successfully finishing a project, and can only be as accurate as the project scope is detailed, or the cost information available at the time of estimation. Cost estimating is an ongoing process, and estimate revisions are normal in order to ensure accuracy throughout project execution.

5.        Variation: Once an order has been accepted by Bananaworks no amendments, variation or cancellation may be made without the written consent of Bananaworks. The Purchaser shall be liable for any costs incurred by Bananaworks to meet the costs of any amendment, variation or cancellation.

6.        Price: The price shall be increased by the amount of any taxes & duties, such as GST, which may be payable in respect of the goods from time to time except to the extent that such taxes are expressly included in any quotation, estimation or budget given by Bananaworks.

         Bananaworks may make an extra charge, at its discretion, where additional work results from lack of precision in the Purchaser’s specifications.

7.        Payment: Payment for all goods shall be made in full on or before the due date as set out on quotations, estimates, budgets and/or invoices from Bananaworks.

Cash Sale or COD (cash on delivery): Payment for all goods shall be made in full on or before the completion of each job. or

Credit Accounts: Payment is due in full on or before the due date as stipulated on the Credit Account Form approved by Bananaworks, unless otherwise stipulated by Bananaworks or otherwise agreed between Bananaworks and the Purchaser.

The Purchaser shall not withhold payment nor make any reductions from the agreed price. Bananaworks reserves the right, in the event of payment in full not being received within 10 days of the due date, to charge interest at the rate of 2% per month on the total amount outstanding, calculated on a daily basis from the due date up to the actual date of payment. The charging of interest does not imply or amount to the granting of an extension of credit.

         The Purchaser fully indemnifies Bananaworks for any and all costs and expenses (including legal expenses) incurred by Bananaworks in recovering any outstanding payments or money owed by the Purchaser under thisT&C.

         Bananaworks reserves the right to impose a credit limit at any time.

8.        Risk and Retention of Title: risk of any loss, damage or deterioration of goods shall pass to the Purchaser upon delivery. Ownership and title of the goods supplied remains with Bananaworks until payment in full for all the goods supplied has been received by Bananaworks regardless of whether or not the goods have been mixed with other goods or become constituents of other goods.

         Until Bananaworks has been paid in full for all goods supplied, the relationship of the Purchaser to Bananaworks shall be fiduciary in respect of the goods supplied which shall include but is not limited to the Purchaser storing or identifying the goods in such a way that they could be recognised as belonging to Bananaworks if required. If the Purchaser resells the goods before ownership passes to the Purchaser, the Purchaser on trust shall hold the proceeds of such sale for Bananaworks. Bananaworks interests as beneficiary under the trust shall be that portion of the proceeds which does not exceed the Purchasers total indebtedness to Bananaworks.

9.        Default: In the event of default, or if any event or happening occurs which Bananaworks may reasonably believe affects the ability of the Purchaser to comply with this Terms and Conditions of Trade, then Bananaworks may by written notice either suspend or terminate the contract and/or credit account without prejudice to any other right or remedy it has at law; and whether or not Bananaworks has given such notice.

Payment for all goods and services whether delivered or not and any other monies payable by the Purchaser shall immediately become due; and

Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date' of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Bananaworks' sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

If the Purchaser defaults in payment of any invoice, the Purchaser shall indemnify Bananaworks from and against all costs and disbursements incurred by Bananaworks in pursuing the debt including legal costs on a solicitor and own client basis and the Bananaworks' collection agency costs.

10.      Guarantees: The Purchaser acknowledges that the goods are acquired for business purposes only.

         The Purchaser acknowledges that Bananaworks does not provide any guarantees other than those expressly confirmed by Bananaworks in writing. All other guarantees and warranties are excluded to the extent permissible by law.

         Where the Purchaser supplies the goods to any other person in the course of trade, the Purchaser must not give or make any undertaking, assertion or representation in relation to the goods without Bananaworks prior approval in writing.

         The Purchaser agrees to indemnify Bananaworks against any liability or cost incurred by Bananaworks as a result of any breach by the Purchaser of its obligations contained in this contract. The Purchaser shall, in relation to any supply of any of the good by the Purchaser, contract out of the provisions of the Consumer Guarantees Act 1993 and the Sale of Goods Act 1908 to the extent that the Purchaser is entitled to do so under those acts and shall indemnify Bananaworks against any liability or cost incurred by Bananaworks under those acts as a result of any breach by the Purchaser of this provision.

11.      Warranty and Limitation of Liability: Bananaworks warrants that the goods shall be capable of performing all that Bananaworks specifies in writing and the conditions disclosed to the Purchaser.

         Bananaworks shall not be liable for any loss, damage or injury whatsoever resulting directly or indirectly from any claimed defect or non-compliance with the written specifications of the goods which is not notified to Bananaworks in writing within 60 days of the delivery date of the goods.

         In any event the liability of Bananaworks (whether in contract, tort or otherwise) for any loss, damage or injury whatsoever shall be limited to the price of the goods in respect of which the loss or damage is claimed; and Bananaworks shall not be liable for any consequential, indirect or special damage or loss of any kind whatsoever.

12.      Intellectual Property Rights: the sale of goods by Bananaworks to the Purchaser does not confer any right or license to the Purchaser to use or exploit in any way any intellectual property rights of which Bananaworks is the proprietor or is otherwise entitled to, either directly or indirectly.

13.      Infringement of Design or Patent: The Purchaser shall indemnify Bananaworks against any claims, proceedings, costs and expenses resulting from the infringement of any registered design or pending or registered patent by any product, design or method of manufacture supplied by the Purchaser to Bananaworks.

         Bananaworks may suspend performance of its obligations under the contract if it becomes aware that a claim is likely to be made against it for infringing any patent or other proprietary right.

14.    Confidentiality of Purchaser Information: The Purchaser agrees that Bananaworks may obtain information about the Purchaser from any other person (including any credit or debt collection agencies) in the course of its business and the Purchaser consents to any person providing Bananaworks with such information.

         The Purchaser agrees that Bananaworks may give any information it has about the Purchaser relating to the Purchaser’s credit worthiness to any other person, including any credit or debt collection agency, for credit assessment and debt collection purposes.

15.      Costs: Except as is expressly provided for herein, the Purchaser shall be responsible for all costs, including, but not limited to legal costs, incurred by Bananaworks in the enforcement of any of its rights and remedies pursuant to this contract.

16.      Waiver: IfBananaworks exercise or fails to exercise any right or remedy available to it this shall not prejudice its rights in exercising that or any other right or remedy. Bananaworks does not waive any term of this Terms and Conditions of Trade except where specified in writing and signed by an authorised officer in respect of a particular transaction, dealing or matter.

17.      Force Majeure: Notwithstanding any other provision of this agreement, non-performance by either of the parties of any of its obligations (other than to pay money) under this agreement shall be excused, without liability for non-performance, during the time and to the extent that such performance is prevented, wholly or substantially, by Force Majeure being any cause beyond the reasonable control of the party claiming the benefit of this clause and which that party is unable to overcome by exercise of reasonable diligence and at a reasonable cost but not including any event that the party affected could have prevented or overcome by exercising a standard of reasonable care or a lack of funds for any reason.

         The party claiming the benefit of this clause shall promptly give written notice to the other party specifying the cause and extent of its inability to perform any of its obligations under this agreement and the likely duration of such non-performance.

18.      No assignment: The Purchaser will not assign this contract, any part of or any benefit or interest in this contract without the prior written consent of Bananaworks. For the avoidance of doubt, the transfer of shares in the Purchaser will be an assignment for the purpose of this clause.

19.      Applicable Law: The laws of New Zealand shall govern this contract. Any dispute arising pursuant to this contract or in relation to the subject matter of this contract shall be determined by a New Zealand Court. Any proceedings may be issued in the Court of another jurisdiction outside New Zealand but only at Bananaworks’s option.

20.      Purchaser’s Acknowledgements: The Purchaser acknowledges that the provisions of this contract constitute the entire agreement between the parties and supersede all prior agreements, understandings, negotiations and representations and discussions whether oral or written of the parties.

Last Updated on01/03/2019

You are here: Home Terms and conditions