Common use of RISK AND SECURITY Clause in Contracts

RISK AND SECURITY. 5.1 Risk of any loss, damage or deterioration of or to the Goods passes to the Buyer on Delivery. 5.2 Ownership of the Goods remains with the Seller and does not pass to the Buyer until the Buyer pays in full to the Seller: (a) the Amount Owing in respect of the Goods; and‌ (b) all other monies owing by the Buyer to the Seller on any account whatsoever. 5.3 The Buyer acknowledges that upon delivery of the Goods to the Buyer, the Goods become subject to a Security Interest in favour of the Seller, which shall remain in effect until such time as the Goods are returned to the Seller (in accordance with this Agreement), or the Buyer has paid the Seller in full for the Goods. 5.4 While Ownership of the Goods remains with the Seller, the Seller authorises the Buyer in the ordinary course of its business to use the Goods and to sell the Goods for full consideration. Except as otherwise expressly permitted by these Terms, the Buyer must not sell, lease, dispose of, create a security interest in, mortgage or part with possession of the Goods or any interest in the Goods (or purport to attempt to do such a thing) or permit any lien over the Goods. 5.5 The authority referred to in clause 5.4: (a) may be revoked at any time by the Seller notifying the Buyer, in such manner and at such time as the Seller determines in its sole discretion, that the authority is revoked; (b) is, in any event, revoked automatically from the time an Event of Default occurs. 5.6 Where the authority conferred by clause 5.4 is revoked under clause 5.5: (a) the Buyer authorises the Seller to use reasonable force to enter the premises where the Goods are stored and remove them; (b) the Seller shall exercise reasonable care in entering such premises and removing such Goods, but shall not be liable for trespass or any damage caused by the use of reasonable force; (c) the Buyer is released from the obligation to pay the Price for all Goods repossessed by the Seller but only to the extent any proceeds obtained by the Seller reselling the Goods (less all costs incurred) exceeds the Price owing by the Buyer to the Seller for those same Goods; (d) the Seller may resell any repossessed Goods and apply the proceeds of sale in reduction of the Amount Owing as the Seller thinks fit; and (e) the Buyer is liable for all costs associated with the exercise by the Seller of its rights under this clause and costs are payable to the Seller on demand. 5.7 The Seller may bring an action for the Amount Owing in respect of the Goods even where Ownership of the Goods has not passed to the Buyer. 5.8 The Buyer must insure and keep insured with a reputable insurance company all Goods in its possession or control from the time for Delivery of such Goods against risk of loss or damage by hazards normally insured against. 5.9 Until Ownership of the Goods passes to the Buyer under these Terms, the Buyer must:‌ (a) keep the Goods in a manner that they are separately identifiable; and (b) keep proper stock records and records of account with respect to the purchase, receipt, sale of, and other dealings with, the Goods; and (c) make those records and/or the Goods themselves available to the Seller for inspection (and, in the case of the records, copying them) at its reasonable request and upon any failure to do so (and without limiting the Seller’s other rights and remedies), the Seller may enter, and use reasonable force to enter, the premises where the records and/or the Goods are kept for any such purpose; and (d) not do or allow anything to happen that might contribute to a deterioration in the value of the Goods or otherwise adversely affect the rights or interest of the Seller in the Goods under these Terms. 5.10 The Buyer agrees that the Seller shall have the right at any time to complete and register a mortgage (on terms determined by the Seller, in its absolute discretion) over any interest in real property owned by the Buyer to secure the Amount Owing and the Seller shall have the right at its discretion to place a caveat on any such property for the purposes of this clause and the Buyer irrevocably appoints the Seller as the attorney of the Buyer for the purpose of the Seller exercising its rights under this clause whilst any Amount Owing remains outstanding. 5.11 The Buyer must immediately notify the Seller if the Buyer is considering whether to appoint an Administrator or Liquidator to the Buyer and will not without the consent of the Seller appoint an Administrator or Liquidator. 5.12 The Buyer’s obligations under these Terms are not affected by the administration of the Buyer. 5.13 The Buyer agrees to promptly do anything the Seller requests (such as obtaining consents, providing information and signing and producing documents) in order to perfect, preserve, maintain, protect, or otherwise give full effect, under the Personal Property Securities ▇▇▇ ▇▇▇▇ (Cth) (‘PPS Act’) and related regulations, to this document and the Terms of Sale – effective 9 June 2016 Security Interest created by this document, including registering one or more financing statements in relation to the Security Interest created by this document on any register established pursuant to the PPS Act. 5.14 To the extent the law permits, the Buyer waives its rights to receive any notice that is required by any provision of the PPS Act (including a notice of a verification statement under section 157(1) of the PPS Act). 5.15 The Buyer agrees to indemnify the Seller for all costs, fees, charges and expenses incurred by the Seller in connection with the enforcement of the Security Interest created by this document.

RISK AND SECURITY. 5.1 4.1 Risk of any loss, damage or deterioration of or to the Goods passes to the Buyer Customer on Delivery. 5.2 Ownership 4.2 As security for all the Customer’s obligations under these Terms (including for payment of the Amount Owing and for the performance from time to time of the Customer’s other obligations to CARTERS), the Customer grants to CARTERS a Security Interest in all the Goods remains CARTERS agrees to sell to the Customer under any contract, together with the Seller and does not pass Proceeds of such Goods. Such security shall continue until all sums owing by the Customer to CARTERS in respect of any Goods supplied have been paid in full. 4.3 CARTERS may allocate all monies received from the Customer in any manner it determines, including in any manner required to preserve any Purchase Money Security Interest under the PPSA in the Goods. 4.4 The Customer agrees that, to the Buyer until extent permissible under the Buyer pays in full to the SellerPPSA: (a) CARTERS excludes its obligations to the Amount Owing Customer under the PPSA in respect of any contract for the sale of Goods; and‌, or the security under such contracts, and (b) the Customer waives any right to receive a copy of a verification statement under the PPSA and all of its other monies owing by the Buyer to the Seller on any account whatsoeverrights against CARTERS. 5.3 4.5 The Buyer acknowledges Customer agrees that upon delivery of ▇▇▇▇▇▇▇ shall have the Goods to the Buyerright, the Goods become subject to a Security Interest in favour of the Seller, which shall remain in effect until such time as the Goods are returned to the Seller (in accordance with this Agreement), or the Buyer has paid the Seller in full for the Goods. 5.4 While Ownership of the Goods remains with the Seller, the Seller authorises the Buyer in the ordinary course of at its business to use the Goods and to sell the Goods for full consideration. Except as otherwise expressly permitted by these Terms, the Buyer must not sell, lease, dispose of, create a security interest in, mortgage or part with possession of the Goods or any interest in the Goods (or purport to attempt to do such a thing) or permit any lien over the Goods. 5.5 The authority referred to in clause 5.4absolute discretion: (a) may be revoked at any time by the Seller notifying the Buyer, in such manner and at such time as the Seller determines in its sole discretion, that the authority is revoked; (b) is, in any event, revoked automatically from the time an Event of Default occurs. 5.6 Where the authority conferred by clause 5.4 is revoked under clause 5.5: (a) the Buyer authorises the Seller to use reasonable force to enter the premises where the Goods are stored and remove them; (b) the Seller shall exercise reasonable care in entering such premises and removing such Goods, but shall not be liable for trespass or any damage caused by the use of reasonable force; (c) the Buyer is released from the obligation to pay the Price for all Goods repossessed by the Seller but only to the extent any proceeds obtained by the Seller reselling the Goods (less all costs incurred) exceeds the Price owing by the Buyer to the Seller for those same Goods; (d) the Seller may resell any repossessed Goods and apply the proceeds of sale in reduction of the Amount Owing as the Seller thinks fit; and (e) the Buyer is liable for all costs associated with the exercise by the Seller of its rights under this clause and costs are payable to the Seller on demand. 5.7 The Seller may bring an action for the Amount Owing in respect of the Goods even where Ownership of the Goods has not passed to the Buyer. 5.8 The Buyer must insure and keep insured with a reputable insurance company all Goods in its possession or control from the time for Delivery of such Goods against risk of loss or damage by hazards normally insured against. 5.9 Until Ownership of the Goods passes to the Buyer under these Terms, the Buyer must:‌ (a) keep the Goods in a manner that they are separately identifiable; and (b) keep proper stock records and records of account with respect to the purchase, receipt, sale of, and other dealings with, the Goods; and (c) make those records and/or the Goods themselves available to the Seller for inspection (and, in the case of the records, copying them) at its reasonable request and upon any failure to do so (and without limiting the Seller’s other rights and remedies), the Seller may enter, and use reasonable force to enter, the premises where the records and/or the Goods are kept for any such purpose; and (d) not do or allow anything to happen that might contribute to a deterioration in the value of the Goods or otherwise adversely affect the rights or interest of the Seller in the Goods under these Terms. 5.10 The Buyer agrees that the Seller shall have the right at any time to complete and register a mortgage (on terms determined by in the Seller, in its absolute discretionform of the then current Auckland District Law Society all obligations mortgage) over any interest in real any property owned or held by the Buyer Customer (whether a beneficial or legal interest and as trustee or otherwise); and (b) to lodge a caveat against the title to any property in respect of which the Customer owns or holds an interest (whether a beneficial or legal interest and as trustee or otherwise), to secure the Amount Owing and the Seller shall have the right at its discretion to place a caveat on any such property for the purposes of this clause and the Buyer Customer hereby irrevocably appoints the Seller ▇▇▇▇▇▇▇ as the attorney of the Buyer Customer for the purpose of the Seller ▇▇▇▇▇▇▇ exercising its rights under this clause whilst any Amount Owing remains outstanding. 5.11 The Buyer must immediately notify . Where the Seller Customer holds an interest in property as a trustee, then for the purposes of 0this clause, the Customer warrants that it has the authority of any co-trustee (if the Buyer is considering whether any) to appoint an Administrator or Liquidator to the Buyer and will not without the consent of the Seller appoint an Administrator or Liquidator. 5.12 The Buyer’s obligations under these Terms are not affected by the administration of the Buyer. 5.13 The Buyer agrees to promptly do anything the Seller requests (such as obtaining consents, providing information and signing and producing documents) in order to perfect, preserve, maintain, protect, or otherwise give full effect, under the Personal Property Securities ▇▇▇▇▇ ▇▇▇▇▇▇▇ (Cth) (‘PPS Act’) the rights arising under this clause and related regulations, such grant is authorised by the relevant trust deed. 4.6 Subject to this document clause 4.2 and the Terms provisions of Sale – effective 9 June 2016 Security Interest created this clause 4, legal and equitable ownership of the Goods remains with CARTERS and does not pass to the Customer until the Customer pays the Amount Owing and any other monies owing by this document, including registering one or more financing statements the Customer to CARTERS from time to time (whether in relation to the Security Interest created by this document any contract entered into under these Terms or on any register established pursuant to the PPS Act. 5.14 To the extent the law permits, the Buyer waives its rights to receive any notice that is required by any provision of the PPS Act (including a notice of a verification statement under section 157(1) of the PPS Actother account whatsoever). 5.15 4.7 While legal or equitable ownership of the Goods remains with ▇▇▇▇▇▇▇, CARTERS retains the right to enter the premises or land where the Goods are held or stored and sever and remove them, as agent for the Customer, without being liable or responsible for any damage caused in doing so. 4.8 In the event that the Goods become fixtures incorporated into any realty CARTERS retains an equitable interest in the land. 4.9 The Buyer agrees to indemnify security interest created by these Terms is not discharged nor the Seller for all costs, fees, charges and expenses incurred Customer’s obligations affected by the Seller in connection with the enforcement administration, insolvency, receivership or liquidation of the Security Interest created by this documentCustomer.