Cocky's Corner - TERMS & CONDITIONS

1. Payment 

In the event that Cocky’s Corner (“Cocky’s Corner”) approves this Application, the Customer  acknowledges and agrees that: 

1.1. Payment is due by the 20th of the month following the  date of delivery of the Goods. The account is to be  maintained on strictly 20th of the month following basis.  

1.2. Any account remaining unpaid after the due date for  payment shall be liable to incur an interest charge of  1.5% of the amount unpaid per month (or part thereof). The Customer will pay all expenses and costs (including  legal costs) incurred by or on behalf of Cocky’s Corner recovering or attempting to recover the  overdue amount. 

1.3. Cocky’s Corner may impose a credit limit on the  Customer’s account and alter the credit limit without  notice. Where the credit limit is exceeded, Cocky’s Corner may refuse to supply Goods to the Customer. 

1.4. The Customer may not withhold payment or make any  deductions from or set off any amount against any  Secured Indebtedness without Cocky’s Corner’s  prior written consent.  

1.5. Any disputes or credit requests by the Customer relating  to an invoice issued by Cocky’s Corner for Goods supplied must be received in writing within 30 days from the date of invoice. 

1.6. The pricing of the Goods is GST exclusive unless  otherwise expressly indicated. 

2. Event of Default 

2.1. If, at any time and for any reason, an Event of Default  occurs, then (without prejudice to any other remedies Cocky’s Corner may have): 

1. a) Cocky’s Corner may suspend or cancel (in  whole or in part) any order created under these  Terms or any other contract with the Customer by  written notice to the Customer; 
2. b) Cocky’s Corner may delay delivery of any  Goods until the matter is resolved to Cocky’s Corner’s satisfaction; 
3. c) the Secured Indebtedness will become  immediately due and payable; 
4. d) each security interest created under these Terms  will become immediately enforceable; 
5. e) Cocky’s Corner may at any time appoint in  writing one or more Receivers (jointly and/or  severally) in respect of any Secured Property who  shall be entitled to exercise all rights conferred on Cocky’s Corner under these Terms as well as at law generally and pursuant to the  Receiverships Act 1993 and otherwise on such  terms considered necessary or expedient by Cocky’s Corner;  
6. f) Cocky’s Corner or a Receiver may take  possession of the Goods and any other Secured  Property (including Goods that have become an  accession under the PPSA) and may dispose of  them or retain them for the benefit of Cocky’s Corner or any Related Company and for that  purpose may, without notice enter directly (or  through its agents) on any premises where Cocky’s Corner reasonably believes the Goods  are stored, without being liable to any person. In  respect of other Secured Property Cocky’s Corner may, in the name of the Customer or  otherwise, at any time do anything and exercise  any right which the Customer could do or exercise  in relation to the Secured Property; and 
7. g) Cocky’s Corner may suspend all payment  credit arrangements offered to the Customer  immediately, without notice, until the Event of  Default is remedied to Cocky’s Corner’s satisfaction and require future orders to be paid in  cash in full prior to Delivery. 

2.2. Cocky’s Corner does not (and will not be  deemed to) undertake any of the Customer’s obligations  in respect of the Secured Property by virtue of these  Terms. 

2.3. Cocky’s Corner is not required to marshall,  enforce or apply under any security interest, guarantee  or other entitlement held by Cocky’s Corner at  any time or any money or property that Cocky’s Corner at any time holds or is entitled to hold. 

2.4. The remuneration of the Receiver may be fixed by Cocky’s Corner but is payable by the Customer and  forms part of the Secured Indebtedness. To the fullest  extent permitted by law, a Receiver will be the agent of  

the Customer and the Customer will be solely  responsible for that Receiver’s acts and defaults. Cocky’s Corner may remove any Receiver appointed  by providing that Receiver with written notice that the  Receiver’s appointment has thereby ceased, whereupon the Receiver shall immediately cease to act. 

2.5. The Customer irrevocably appoints, and ratifies the  actions or omissions of, Cocky’s Corner, each Receiver, each nominee of Cocky’s Corner in whose name any Secured Property is registered and  each duly authorised officer or attorney of Cocky’s Corner severally, to be its attorney (“Attorney”) (with  full power to appoint substitutes and to sub-delegate) on  behalf of the Customer and in the Customer’s name or  otherwise and at its expense to complete, execute and  otherwise perfect all assignments, security interests and  other agreements and documents, and generally to do all other things which the Attorney may consider  necessary or expedient to secure Cocky’s Corner the full benefit of its rights and intended rights under these Terms and any other contract with Cocky’s Corner to secure payment of the Secured Indebtedness and performance of the Customer’s  obligations to Cocky’s Corner and any Related  Company and any matters incidental thereto.  

3. Risk and Retention of Title 

3.1. Title to any item sold under these Terms shall not pass  to the Purchaser but remain with Cocky’s Corner until full payment for the Goods/Service has been  received by Cocky’s Corner. The risk of any loss  or damage to, or deterioration of, the Goods due to any  cause whatsoever will pass to the Customer on delivery.  If any Goods are damaged or destroyed prior to risk  passing to the Customer, Cocky’s Corner may  promptly repair the Goods or cancel the order in respect of those Goods without penalty or compensation to the Customer. 

3.2. If the Goods are attached, fixed, or incorporated into any  property of the Customer, by way of any building or  assembly process by the Customer or any third party,  title in the Goods shall remain with Cocky’s Corner until the Customer has made payment in full, and where those Goods are mixed with other property, title to these new goods shall be assigned to Cocky’s Corner as security for the full satisfaction of the  amount owing. 

4. Security and Personal Property Securities Act 4.1. The Customer: 
5. a) agrees that the retention of title in clause 3 of these  Terms creates a PMSI in all present and after  acquired Goods (and their Proceeds) as security  for payment of the purchase price for the Goods  until such amount is paid in full; and 
6. b) grants to Cocky’s Corner (unless otherwise  agreed in writing by Cocky’s Corner) a  security interest in all of the Customer’s present  and after acquired personal property (as defined in  the PPSA) as security for the due payment of all  other Secured Indebtedness, and to secure  performance of all obligations owing by the  Customer to Cocky’s Corner or any Related  Company; 

(such personal property under (a) and (b) is  together the “Secured Property”). 

4.2. The Customer undertakes: 

1. a) To promptly do all things, execute all documents  and/or provide any information which Cocky’s Corner or any Related Company may reasonably  require to enable Cocky’s Corner and any  Related Company to perfect and maintain the  perfection of its security interests (including by  registration of a financing statement); and 
2. b) not to consent to or enter into any agreement which  permits any supplier or other person to register a  security interest in respect of any collateral subject  to Cocky’s Corner security interest,  including (without limitation) the Goods (whether  an accession or otherwise), which ranks in priority  to Cocky’s Corner rights as first ranking  security holder. 

4.3. Each security interest created under these Terms is a  continuing security, notwithstanding any intermediate  payments or settlements of accounts or anything else  and is in addition to, and is not to be merged with any  other security or guarantee expressed or intended to be  

security for any Secured Indebtedness or any other  obligations owing by the Customer to Cocky’s Corner or any Related Company. 

4.4. The Customer waives its rights under the PPSA to  receive a copy of any verification statement, financing  statement or financing change statement (as those  terms are defined in the PPSA) and agrees that: 

1. a) as between Cocky’s Corner and the  Customer, the Customer will have no rights under (or by reference to) sections 114(1)(a), 116,  120(2), 121, 125, 129, 131, 133 and 134 of the  PPSA; 
2. b) to the extent permitted by law these Terms exclude  any other provisions of the PPSA which may be  excluded in Cocky’s Corner’s discretion and  which would otherwise confer rights on the  Customer; and 
3. c) where Cocky’s Corner has rights in addition  to Part 9 of the PPSA, those rights will continue to  apply. 

4.5. The Customer acknowledges that it has received value  as at the date of first delivery of the Goods and that Cocky’s Corner has not agreed to postpone the  time for attachment of the security interest granted to  Cocky’s Corner under these Terms. 

4.6. The Customer must not: 

1. a) change its name, address or contact details without  providing Cocky’s Corner 30 days prior  written notice. 
2. b) give to Cocky’s Corner a written demand, or allow any other person to give Cocky’s Corner a written demand requiring a financing change statement to be registered; or 
3. c) lodge a change demand or allow any other person  to lodge a change demand, in each case in relation  to a financing statement registered by Cocky’s Corner under the PPSA. 

4.7. The Customer will, upon demand, pay all Cocky’s Corner’s expenses and legal costs (on a solicitor-client  basis) in relation to or in connection with the registration,  maintenance and enforcement of Cocky’s Corner’s security interest. 

5. Suitability 

5.1. The Customer must ensure that: 

1. a) all Goods are handled and used in accordance with  any safety directions or guidance notes which are  supplied with the Goods and any safety features of  the Goods are not interfered with, modified or  disabled; 
2. b) all Goods are used under appropriate supervision  and with appropriate training; 
3. c) any staff or agents using or handling the Goods are  instructed to comply with subclauses (a) and (b);  and 
4. d) it informs Cocky’s Corner if there is any  suspected design or manufacturing fault that may  affect the safety of the Goods in a work place. 5.2. The Customer acknowledges that: 
5. a) failure to comply with clause 5.1 may invalidate any  express warranty given by Cocky’s Corner; b) Cocky’s Corner does not warrant the  suitability of any Good, service, design, person or  organisation for the Customer’s use; 
6. c) the Customer shall be responsible for ensuring that  all instructions, recommended uses, applications  and installation methods are followed and any  cautions and/or warnings observed; and 
7. d) where any recommendation or advice has been  given by or on behalf of Cocky’s Corner, it  will not be responsible for the actual  implementation of the recommendation or the  advice, or actions or performance of a third party. 
8. Delivery 
9. a) Unless otherwise agreed in writing, delivery of the  Goods will be deemed to be effected upon the  transfer of possession of Goods to the Customer  (or its representative or carrier) at Cocky’s Corner premises, or where Cocky’s Corner has agreed to deliver the Goods, upon the unloading of Goods by Cocky’s Corner at  the curbside at the Customer’s delivery address. 
   

Form 44 

1. b) Delivery of Goods may be made by installments.  Each installment shall be treated as a separate  contract subject to these Terms. 
2. c) Any times quoted for delivery are estimates only  and Cocky’s Corner will not be liable for any  delay in delivery, whether or not beyond its control.  Subject to clause 9.1, late delivery does not entitle  the Customer to cancel any order or part order or  to refuse to accept delivery. 
3. d) Where Cocky’s Corner has agreed to  deliver the Goods, the Customer must provide  adequate access for delivery and adequate  facilities for unloading and storage of Goods. If  required by the Customer or a representative to  drive on to a property, neither Cocky’s Corner nor any of its carriers accept responsibility  for any damage that may result to either the  property or the Goods. 
4. e) If the Customer fails or refuses to take delivery of  the Goods at an agreed delivery time, any liability  or cost incurred by Cocky’s Corner as a  result of the refusal or delay in delivery shall form  part of the Secured Indebtedness and shall be paid  immediately by the Customer upon demand. 
5. f) The Goods will be deemed accepted on delivery  unless the Customer notifies Cocky’s Corner in writing of any errors or discrepancies  within 7 days of delivery, provided Cocky’s Corner is able to inspect the Goods to confirm the  error or discrepancy. 
6. Quotations 

7.1. The Customer is solely responsible for the accuracy of  plans, specifications and information supplied by (or on  behalf of) the Customer upon which a  quotation/estimate/order of materials is based. All  customary building industry tolerances shall apply to the  dimensions and measurements of Goods unless Cocky’s Corner and the Customer agree otherwise in  writing. 

8. Substitution 

8.1. Goods are offered subject to availability. Where Goods  are not available, Cocky’s Corner has no obligation to supply those Goods to the Customer. Cocky’s Corner may at the time of supply  substitute a similar Good to that ordered. It is the  responsibility of the Customer to ensure that any Good  substituted is acceptable. If not, the Customer must,  before using the Good, advise Cocky’s Corner. 

9. Warranties and Liability: 

9.1. The parties agree that if the Goods provided are  supplied and acquired in trade then in that case the  parties agree to contract out of: 

1. a) sections 9, 12A, or 13 of the Fair Trading Act 1986  in accordance with section 5D of the Fair Trading  Act 1986;  
2. b) the Consumer Guarantees Act 1993 in accordance  with section 43 of the Consumer Guarantees Act  1993; and  
3. c) any terms and conditions implied by law in  accordance with section 197 of the Contract and  Commercial Law Act 2017,  

such agreement being acknowledged as fair and  reasonable for the parties to be bound by this clause.  Nothing in these Terms is intended to contract out of the  provisions of the Consumer Guarantees Act 1993 or the  Fair Trading Act 1986, except to the extent permitted by  those Acts. 

9.2. Subject to clause 9.1, and to any express warranties  confirmed by Cocky’s Corner (or the  manufacturer of the Goods) to the Customer in writing,  to the maximum extent permitted by law, Cocky’s Corner expressly excludes all other conditions,  warranties, guarantees, descriptions, representations,  conditions as to fitness or suitability or fitness for any  purpose, tolerance to any conditions, merchantability,  appearance, safety, durability or otherwise (whether of  a like nature or not) and whether express or implied by  law, trade custom or otherwise. 

9.3. The sale of any Goods shall not, unless expressly  agreed in writing, give the Customer the right to use,  sell, disseminate or duplicate any Cocky’s Corner trademark, copyright, design or any other  intellectual property right. 

9.4. Cocky’s Corner will not be liable in respect of  Goods that have been tampered with or modified  without Cocky’s Corner’s approval or which have  been stored in an improper manner. 

9.5. For Goods that the Customer is entitled to reject  (pursuant to clause 6(f) or Cocky’s Corner liability for breach of a non-excludable condition,  

warranty or any other liability, is limited at Cocky’s Corner’s option to: 

1. a) repairing the Goods; 
2. b) replacing the Goods; or 
3. c) refunding the price of the Goods. 

9.6. Notwithstanding any other provision of these Terms, but  subject to clause 9.1, under no circumstances shall Cocky’s Corner be liable to the Customer or any  other person (whether in contract, tort, including  negligence, statute or otherwise) for any: 

1. a) loss of profits; 
2. b) consequential loss or damage; 
3. c) indirect loss or damage; or  
4. d) special loss or damage of any kind. 

9.7. To the maximum extent permitted by law, but subject to  clause 9.1, Cocky’s Corner’s total liability (whether  in contract, statute, tort, including negligence, or otherwise howsoever arising) for any claim by the Customer, its agents, employees or subcontractors, or  any other person, relating to or arising from the supply of Goods or any quotation or estimate given shall not exceed the price of the Goods to which the Claim  relates. 

9.8. 

The Customer hereby indemnifies Cocky’s Corner, its employees, officers, and agents,  (“Indemnified Parties”) against all losses, liabilities,  damages, claims, actions costs or expenses including  administration costs and other legal fees and expense  on a solicitor and client basis) which the Indemnified  Parties may incur, of which have been made against an Indemnified Party as a result of or relating to any claim  by a third party to the extent caused or contributed to  by the Customer . 

9.9. If the Customer is a company, then unless otherwise  agreed by Cocky’s Corner, it must procure that  the Deed of Guarantee included in the Application is  executed by each director of the company and returned  to Cocky’s Corner as soon as possible. 

10. Authorised Personnel: 

The Customer is liable for all purchases made in its  account name. It is not Cocky’s Corner’s responsibility to confirm authority for the purposes of  supplying or delivering Goods to the Customer or its  agents. It is the sole responsibility of the Customer to  ensure there is no unauthorised use of its account. 

11. Timber 

11.1.Timber is a hygroscopic material subject to expansion  and contraction; therefore Cocky’s Corner will accept no responsibility for timber exposed to the  elements after delivery. 

11.2.The Customer acknowledges that Goods supplied may exhibit variations in shade, colour, texture, surface, finish, markings and may contain natural fissures, occlusions, lines, indentations and may fade or change  colour over time. They may also expand, contract or distort as result of exposure to moisture, heat, cold,  weather; and become damaged or disfigured by impact  or scratching. 

12. Construction Contracts Act: 

In the event that any sale by Cocky’s Corner is  of a Good that means the supply is a “construction contract” within the meaning of the Construction  Contracts Act 2002 (CCA) so that the CCA applies to  these Terms or any sale under them, then there shall be  no progress payments and the Goods shall be paid for  in one lump sum on the due date. 

13. Force Majeure 

13.1 Notwithstanding any other provisions of these Terms,  neither Cocky’s Corner nor the Customer shall be liable for any delay or failure in the performance of  any obligation or the exercise of any right under these Terms or for any loss or damage if such performance  or exercise is prevented or hindered by a Force Majeure Event. Nothing in this clause shall excuse  payment of the Secured Indebtedness as it becomes  due under these Terms.  

13.2 The rights and obligations of either party which are  affected by a Force Majeure Event shall be suspended  during the continuance of the event with either party  claiming to be affected by the event giving immediate notice to the other party containing full particulars of  the event. The party giving notice under this clause  shall take all reasonable steps to mitigate the effects of  the event. 

14. Privacy 

14.1 Cocky’s Corner may at any time collect, hold  and use information relating to this credit application  

for any purpose connected with its business including (but not limited to) direct marketing, debt recovery,  credit reporting or assessment, and to register any  security interest, including collecting information from,  and disclosing information to, external credit reporting  agencies, debt collection agencies and trade referees.  Information disclosed by Cocky’s Corner to  credit reporting agencies will be disclosed on the basis  that it will be held and used by such agencies to provide credit reporting services. Under the Privacy  Act 2020, individuals have rights to access to, and  request correction of, their personal information by  contacting Cocky’s Corner. 

14.2 The Customer, any director signing on behalf of the  Customer and any Guarantor authorises Cocky’s Corner to collect, hold and use information from any  person or entity for any of the above purposes, and for  such person or entity to disclose information to Cocky’s Corner, and the Customer further authorises Cocky’s Corner to disclose information to any  person or entity for any of the above purposes and  such person or entity to collect, hold and use  information from Cocky’s Corner. 

15. General 

15.1 These Terms contain the entire agreement between  the parties and replace any previous arrangements or  understandings relating to supply by Cocky’s Corner to the Customer. Unless otherwise  

specifically agreed in writing by Cocky’s Corner, where any terms and conditions of the Customer’s  order or any request for supply are inconsistent with these terms, then these terms and conditions will prevail. Any variations or additions to these terms and  conditions not expressly agreed in writing by Cocky’s Corner are expressly rejected by it. Cocky’s Corner may vary these Terms at any time by  publishing the varied terms on it’s website  

www.cockyscorner.co.nz provided it first notifies the  Customer in writing that these Terms have been  amended and are on the website. Subsequent  purchases by the Customer on the account will signify  acceptance of such changes. 

15.2 If Cocky’s Corner exercises or fails to exercise  any right or remedy available to it, this shall not  prejudice Cocky’s Corner’s rights in exercising  that or any other right or remedy unless expressly  waived by Cocky’s Corner in writing.  

15.3 Cocky’s Corner may assign these Terms and  all or any contracts created pursuant to them to any  other person. Without limiting the foregoing, Cocky’s Corner may assign to any other person all or  part of the Secured Indebtedness owing by the  Customer to Cocky’s Corner. 

15.4 The Customer agrees that Cocky’s Corner may  subcontract the performance of the Services to any  other person. 

15.5 Every provision of these Terms remains binding unless  it is held to be illegal, invalid, unenforceable or void, in  whole or part, in which case such provision or part of  such provision shall be severed from the agreement,  which will continue in full effect.  

15.6 These Terms shall be subject to the laws of New Zealand and the courts of New Zealand shall have  exclusive jurisdiction.DEFINITIONS: In these Terms: (a) Application means the credit account application,  these Terms, and the Deed of Guarantee; 

(b) Claim means any demand or assertion of right to  compensation or other legal or equitable remedy  (whether in contract, tort, including negligence, statute  or otherwise) arising out of or relating to the supply of  Goods, including any proceeding in any tribunal, court  or other forum arising out of or relating to the supply of  Goods; 

(c) Customer means the party(s) stated in the credit  application form as the customer (together with its  successors), or any other person whose order for the  purchase of Goods is accepted by Cocky’s Corner in writing. If the Customer comprises more  than one person, each of those person’s liability and  agreement is joint and several. Where the Customer is  a trust, the trustees’ liability shall not be limited to the  assets of the trust; 

(d) Deed of Guarantee means the deed of guarantee  included in the Application; 

(e) Delivery means delivery of the Goods under clause 6;

(f) Event of Default means: 

(i) where the Customer fails to pay, or in Cocky’s Corner’s opinion is likely to fail to pay, any moneys  owing when due; or 

(ii) where the Customer breaches, or in Cocky’s Corner’s opinion is likely to breach, any non monetary obligations owing to Cocky’s Corner or any Related Company whether under  these Terms or otherwise; or  

(iii) the Customer commits an act of bankruptcy;  (iv) the Customer’s ownership or effective control is  transferred without the consent of Cocky’s Corner; 

(v) if the Customer: 

A becomes insolvent or is unable to pay its  debts as they fall due or is deemed or  presumed to be so under any law;  

B makes, or proposes to make, an assignment,  arrangement, composition or compromise  with, for the benefit of, or affecting its creditors  in relation to any of its indebtedness; or 

C a receiver, liquidator, trustee, manager,  administrator or statutory or official manager  or similar officer is or has been appointed in  respect of the Customer or over all or any of  the Customer’s assets; 

(g) Force Majeure Event means any event or  circumstance which is beyond the reasonable control of  the affected party (including, without limitation an , act  of God or public enemy, flood, earthquake, storm,  cyclone, tornado, hurricane, lightning, fire, explosion,  epidemic, war, embargo, riot or civil disturbance, strike  or other labour dispute, sabotage, expropriation,  confiscation or requisitioning of facilities, or by orders or  temporary or permanent injunctions of any duly  constituted court of competent jurisdiction) and which  results in or causes the failure of that party to perform  any of its obligations under these Terms; 

(h) Goods means all building materials and hardware, tools  and accessories supplied by Cocky’s Corner to  the Customer (together with any Services forming part  of the supply of Goods) and in respect of each order of  Goods placed by the Customer and accepted by Cocky’s Corner in writing, the Goods described in the  invoice issued by Cocky’s Corner in respect of  such order; 

(i) GST means any amounts levied or charged pursuant to  the Goods and Services Tax Act 1985; 

(j) PPSA means the Personal Property Securities Act 1999  (as amended from time to time); 

(k) Proceeds has the meaning given to it in the PPSA; (l) PMSI has the meaning given to “Purchase Money  Security Interest” in the PPSA; 

(m) Related Company has the meaning given to it in the  Companies Act 1993;  

(n) Receiver means any person appointed as a receiver or  manager under these Terms or any security; 

(o) Secured Indebtedness means all indebtedness, of  whatever nature, which the Customer is now or at any  subsequent time actually, prospectively or contingently  liable to pay to Cocky’s Corner or any Related  Company (including, for the purposes of the PPSA, future advances under or in connection with these  Terms or any related or ancillary document); 

(p) Secured Property has the meaning given in clause 4; (q) Services means any services performed by Cocky’s Corner (its employees, agents or  subcontractors) as part of supplying the Goods;  (r) Terms means these terms and conditions, as amended  from time to time under clause 15.1.