In these terms of trade:
- "Account" means the Customer’s account with the Vendor.
- "Toast" means Toast Limited and its employees and authorised subcontractors.
- "Customer" means the person or entity accepting these terms and conditions and their employees and authorised sub-contractors.
- "Product" means goods and services supplied by Toast to the Customer at any time.
- "Guarantor" means any party guaranteeing and indemnifying the performance of the Customer's Account with Toast.
- "Goods and Services" means the products supplied by Toast to the Customer pursuant to these terms and conditions.
- "Order" or "Orders" means the order or orders of the Customer to Toast requesting it to supply goods and services.
- "PPSA" means the Personal Property Securities Act 1999.
- "Prices" means the prices for the supply of the goods and/or Services.
ORDERS AND QUOTATIONS
- By purchasing a Toast product, the Customer has requested Toast to act as their agent to supply Goods or perform Services including research, analysis, design, creative, media placement, managing and updating listings and postings and reporting and may include using third party sources.
- Any Service purchased from Toast will continue until cancelled, in writing, by the Customer and will take effect one billing cycle following such request.
- Orders will be in such form as Toast specifies from time to time.
- Where a quotation is given by Toast for the supply of Goods and Services it is valid for 30 days from the date of issue.
- Any Order accepted by Toast cannot be subsequently cancelled by the Customer without Toast’s written consent and payment of any costs and expense that Toast may have incurred or be liable for as a result of the cancellation.
- By accepting these terms, the Customer:
- represents that it acquires the Goods and Services for business purposes so that the Consumer Guarantees Act 1993 ("CGA") does not apply to them and their sale is not a consumer sale; and
- agrees with Toast that Sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 ("FTA") do not apply to Toast or to any of its directors, employees or contractors in respect of any contract on these terms and conditions; and
- it is fair and reasonable for Toast to contract out of the CGA and FTA.
- In providing the Goods and Services, if Toast encounters unforeseen or hidden problems, Toast will contact the Customer immediately and provide it with an estimate of further costs to provide the Goods and Services as an adjustment to the Price. The Customer then has the option of accepting the adjusted Price or terminating the contract and paying Toast all costs incurred to the date of termination.
- At no time during or after the commencement of any agreement by Toast to perform Services does the Customer obtain any proprietary interest in any of those Services and the Customer only has a non-exclusive licence to use the Service or Services. All intellectual property rights attached to any Service remain, at all times, under the sole ownership of Toast.
- When the Customer makes an Order, the Customer accepts these terms and conditions of trade to the exclusion of the Customer’s terms and conditions and any prior communication and discussions whether oral or written so that the contract between Toast and the Customer is only on the basis of these terms and conditions.
- All Orders will be charged at Prices prevailing at the date of the contract.
- Toast may increase those prices by any increase in prices charged to it by its suppliers or by any reasonable cost of supply between the date of the contract and the date of delivery or performance of the Goods and Services.
- Toast will charge an additional 20% on all supplier costs that are directly attributable to the supply of the Goods or Services and Toast will notify the Customer of such supplier costs prior to Toast incurring such costs on behalf of the Customer.
- Toast may, at their discretion, charge an additional hourly rate (“urgent work rate”) for contracts classified by the Customer as being urgent (“urgent work rate”). Where a Customer notifies that a contract is urgent, Toast will advise the Customer that the urgent work rate is to apply.
DELIVERY OF THE GOODS AND SERVICES
- If the Order specifies the date and place for delivery and performance of the Goods and Services, then those details apply but if no details are specified then delivery and performance will take place at the physical address of the Customer notified to Toast.
TIME OF PERFORMANCE
- Time is not of the essence of the delivery of Goods or the provision of Services. Any failure to meet any indicated delivery date is not the breach of a material term of this contract.
- Toast is not responsible for any delay in the delivery of Goods or the provision of Services. Delivery of Goods by Toast to a carrier is deemed to be delivery to the Customer.
TERMS OF PAYMENT
- Unless otherwise specified, payment for all Goods and Services must be made no later than 7 days after the date of invoice by Toast.
- Toast may require payment of a deposit of up to 50% of the quoted price by the Customer prior to its processing any Order.
- Toast may require the Customer to make progress payments on such terms as Toast may reasonably require in order to secure payment of the Price.
- Toast may charge interest on all overdue amounts at 2.5% per month over the best overdraft rate available to Toast on a daily basis from the due date to date of actual payment.
- If the Customer fails to pay any account Toast may withhold the release of any further Goods or Services or certification or documentation relating to the Goods supplied or Services performed until the account and any associated costs are paid in full.
- All costs of or incurred by Toast as a result of a default by the Customer including but not limited to administration charges, debt collection costs and legal costs as between solicitor and client are payable by the Customer.
- If the Customer defaults in any payment or commits any act of bankruptcy or any act which would render it liable to be wound up or if a resolution is passed or proceedings are filed for the winding up of the Customer or if a receiver is appointed for all or any assets of the Customer, Toast may cancel any Order without prejudice to any other rights it may have and payment for all completed Orders will immediately become due.
- Any Goods that are purchased by Toast from suppliers and/or manufacturers are subject to manufacturer’s warranties and limitations of liability. The Customer agrees that its rights and remedies in respect of those Goods are only as contained in those manufacturer’s warranties which Toast is able to assign to the Customer. Any performance of manufactured standard data given by Toast is based on information supplied by the relevant supplier of the Good; and
- Where the Customer has expressly made known to Toast the particular purpose for which the Goods or Services are required, and the Customer relies on Toast’s skill or judgment, and the Goods and Services are of a description which it is in the course of Toast’s business to supply, Toast warrants that the Goods and Services are reasonably fit for such purpose; and
- Where the Goods are bought by description from Toast as a dealer or agent in goods of that description, the Goods are of merchantable quality except that where the Customer has examined the Goods upon delivery there is no warranty as regards defects which such examination ought to have revealed; and
- In respect of the Services, Toast warrants that they will be performed to a standard of reasonable skill and care; and
- In respect of the Services, Toast warrants that the Services delivered to the Customer are the original work of Toast; and
- The warranties given shall apply for a period of 30-days following the date of installation of any Goods or the performance of the Services, such date to be at the sole determination of Toast; and
- The warranties given by manufacturers referred to in in clause 11 (a) and by Toast in clause 11 (d), at Toast’s option in either case, may be satisfied by Toast either replacing the defective Goods or re-performing the Services at no cost to the Customer or by refunding the Price paid to the Customer; and
- Toast gives no other warranties whether express or implied by law (including the Sale of Goods Act 1908) and makes no other representations (whether for the purposes of the Fair Trading Act 1986 or any other legislation); and
- Toast will accept no liability for any damages or losses (including loss of profits) arising as a consequence of any act, default or negligence on the part of Toast or of an employee, agent or contractor of Toast; and
- Notwithstanding anything in clauses 11 (a) and 11 (d), insofar as Toast may be liable for any loss, damage or injury arising directly or indirectly from any defect in the Goods or Services, the total liability of Toast, whether in tort, contract or under any other legal rule or principle, is limited in its aggregate to the lesser of $500 or the cost of replacing the Goods or re-performing the Services to the required standard; and
- Under no circumstances whatsoever is Toast liable to the Customer for direct or indirect, special, incidental or consequential damages or loss including but not limited to damage or loss resulting from inability to use the Goods or from defective Services, loss of anticipated profits, loss by reason of plant shut down, non-operation or increased expense of operation, service interruption, loss of production, cost of purchased or replacement power, claims of customers, cost of money, loss of capital or revenue, or for any other damages or loss, or consequential damages, whether similar or dissimilar or of any nature arising from any cause whatsoever, whether based in contract, tort (including negligence), strict liability or any other theory of law and whether or not Toast has been given notice of the possibility of any such damages or losses occurring; and
- No claim relating to Goods and Services will be considered by Toast unless made by the Customer within fourteen (14) days of supply or installation; and
- Where the Consumer Guarantees Act 1993 (CGA) applies in spite of clause 2 (d) (i), the Customer has all the rights and remedies provided under the CGA.
PERSONAL PROPERTY SECURITIES ACT 1999 (PPSA)
- Toast and the Customer acknowledge that these terms constitute a security agreement as defined by the Personal Property Securities Act 1999 (“PPSA”). For the purposes of the PPSA, in this clause the term “Collateral” includes the Goods and their proceeds including insurance payments. The Customer agrees to give Toast a security interest in all of the Customer’s present and after-acquired property that Toast has supplied as the Goods as the Collateral and agrees not to allow any person to file a finance statement over any of the Goods secured by this security agreement without the prior written consent of Toast.
- Upon signing these terms, the Customer acknowledges that:
- these terms are a security agreement for the purposes of s 36 of the PPSA, and
- a security interest is taken in all Goods previously supplied to the Customer and all Goods that will be supplied in the future by Toast to the Customer during the continuance of the party’s relationships.
- The Customer undertakes to:
- Sign any further documents and/or provide any further information which Toast may reasonably require to register financing statements or financing change statements on the Personal Properties Securities Register,
- Give Toast not less than 14 days prior written notice of any proposed change to the Customer’s name and will use its best endeavours to ensure that a financing change statement is registered disclosing its new name; and
- Immediately advise Toast of any material change in its business practices of selling the Goods that would result in a change of the nature of proceeds derived from such sales.
- The Customer waives the rights listed in section 107(2) of PPSA, its right to receive the notice referred to in section 114(1)(a) of the PPSA, its right to reinstate under sections 133 and 134 and its right to receive verification statements under section 148 of the PPSA. The Customer agrees that Toast may exercise the rights in sections 108, 109, 111(1) and 120(1) of the PPSA whether or not Toast has priority over all other secured parties, and that Toast may charge for complying with a demand under s 162 of the PPSA. The Customer will inform any trustee in bankruptcy or liquidator of the Customer or any receiver of the Customer’s business or assets of the rights of Toast and title to the proceeds of sale.
- The security agreement is a continuing security and will operate irrespective of any intervening payment or settlement of account until a release has been signed by Toast. The security interest granted in the Collateral has the same priority in relation to any Goods supplied to the Customer by Toast at any time.
- It is agreed by the Customer that if the Customer fails to pay any account Toast may withhold the release of any producer statement or other certification or documentation relating to the work performed until such time as the account and any associated costs are paid in full.
CONSENTS, ACCESS, STORAGE, AND RISK
- The Customer is solely responsible for obtaining any necessary permits and ensuring compliance with all legislation, regulations, by-laws or rules in connection with the installation operation and provision of the Goods and Services.
- The Customer agrees to provide Toast free of charge with:
- all necessary facilities for the delivery of the Goods and Services, including power, lighting, unloading, hoisting and lifting facilities, labour, site preparation and compliant employee amenities; and
- safe storage facilities are provided for protection against theft and damage of the Goods or any equipment or other items belonging to Toast.
- The Customer is solely responsible for arranging and providing convenient access for the Goods and provision of Services to the proposed place of installation including stairs, lift or crane access as the case may require, failing which Toast may a further charge to the Customer to cover the additional reasonable costs incurred from such failure.
- If the Customer cannot take delivery of the Goods or Services, then the Customer is responsible for all additional charges caused by that failure.
- Where installation or supply of the Goods or Services must be coordinated with other suppliers the Customer must provide Toast with a schedule detailing all relevant information relating to installation or supply with sufficient time allowed for Toast to meet delivery or supply dates.
- The delivery or supply period will be extended to cover delays caused by strikes, lockouts, prohibitions, non-availability of materials or any circumstances beyond Toast’s control.
- From the time of dispatch to the Customer by Toast, risk in all Goods supplied pass to the Customer and any loss, damage or deterioration to the Goods is the responsibility of the Customer. The Customer is liable to pay for the Goods notwithstanding any loss, damage or deterioration to them.
HEALTH AND SAFETY AT WORK ACT 2016
- Toast is responsible for the actions of its employees pursuant to the Health and Safety at Work Act 2016 (“HSWA”).
- The Customer is responsible for compliance with the HSWA in respect of the Customer's site and shall advise Toast prior to commencement of any work of any hazards on the Customer’s site and indemnify Toast against any breach by the Customer of the HSWA in respect of the site.
EVENTS OF DEFAULT
- The Price is immediately due to Toast (which also has the option to suspend delivery or performance of the Goods and Services or to terminate any contact on these terms and conditions) if:
- a receiver is appointed over any of the assets or undertaking of the Customer;
- an application for the appointment of a liquidator is filed against the Customer which remains unsatisfied for a period of 10 days, or any of the conditions necessary to render the Customer liable to have a liquidator exist, or a liquidator is appointed;
- the Customer goes into voluntary liquidation or amalgamates with another company;
- the Customer suspends payments to its creditors or makes or attempts to make an arrangement or composition with its creditors; or
- the Customer becomes insolvent within the meaning of the Insolvency Act 2006 or is, becomes, or is presumed to be unable to pay its debts as they fall due as defined in section 287 of the Companies Act 1993 or commits any act of bankruptcy.
- The Customer authorises Toast to collect and use information from you and third parties relating to the performance and enforcement by Toast of any contract with the Customer, subject to compliance with the Privacy Act 1993 in the case of personal information.
- All Quotations, Orders and Prices are expressed in New Zealand (NZ) dollars ($) and are plus GST.