1.0 Definitions and Interpretation
“Credit” means the sale on Goods on the basis of credit sales with payment as set out in these Terms of Trade. “Goods” means bathroomware, and any other products supplied by the Seller to the Customer (and where the context so permits shall include any supply of services as hereinafter defined) and includes Goods described on any invoices, quotation or any other forms as provided by the Seller to the Customer. “Price” means the price payable for the Goods as agreed between the Seller and the Customer in accordance with clause 3.0 of this contract.
In this Agreement unless a contrary intention appears: A reference to a person includes any other entity or association recognised by law and the reverse. Any reference to any of the parties includes that party's executors, administrators or permitted assigns, or if a company, its successors or permitted assigns or both. Any reference to more than one person binds and benefits those persons jointly and severally.
2.1 Any instructions received by the Seller from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by the Seller shall constitute acceptance of the terms and conditions contained herein.
2.2 Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of the Seller.
3.0 Price and Payment
3.1 At the Seller’s sole discretion the Price shall be either: (a) as indicated on invoices provided by the Seller to the Customer in respect of Goods supplied; or (b) the Seller’s quoted Price (subject to clause 3.2) which shall be binding upon the Seller provided that the Customer shall accept the Seller’s quotation in writing within thirty (30) days.
3.2 The Seller reserves the right to change the Price in the event of a variation to the Seller’s quotation. In any case, the Customer understands that in the nature of the bathroomware supply business, that all pricing provided may be adjusted or aligned if in the opinion of the seller, an unsustainable price increase has been notified from the supply lines of the seller. Customer understands that Newtech Bathroomware distributes many different products from many different supply lines, and it is not possible to always pre-notify Customers
3.3 At the Seller’s sole discretion a deposit may be required.
3.4 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due on the 20th of the month following the date of the invoice. Some items require payment before goods leave premises, and if this is required, you will be advised accordingly.
3.5 Payment shall be made by cash, cheque, bank cheque, direct credit, or by any other method agreed between the Customer and the Seller.
3.6 The Seller will enter into no negotiations, discussions or common understandings with any customer or potential customer about the levels or suitability of its pricing in either, writing, telephone discussions, or inferences, in regard to what other respective customers, industry groups, buying groups may or may not pay This is confidential and privileged to each and every individual client.
4.0 Delivery of Goods
4.1 Delivery of the Goods shall take place at the Seller’s premises unless the Seller agrees to deliver Goods to the Customer’s nominated address.
4.2 If the Seller agrees to deliver Goods the costs of delivery shall be in addition to the Price unless the Seller otherwise agrees in writing.
4.3 The Customer shall make all arrangements necessary to take delivery of the Goods if the Seller delivers Goods and if the Customer is unable to take delivery, the Seller shall be entitled to charge a reasonable fee for redelivery.
4.4 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer.
4.5 If the Seller delivers Goods the delivery fee shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
4.6 The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of the Seller.
5.1 Notwithstanding that the Seller retains ownership of the Goods until paid in full all risk for the Goods passes to the Customer on delivery. 5.2 If any Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Seller is entitled to receive any insurance proceeds payable for the Goods.
The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
6.1 The Seller and Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid the Seller all amounts owing for the Goods in accordance with this Agreement; and
(b) the Customer has met all other obligations due by the Customer to the Seller in respect of all contracts between the Seller and the Customer.
6.2 Payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
6.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until the Seller shall have received payment and all other obligations of the Customer are met; and
(b) until such time as ownership of the Goods shall pass from the Seller to the Customer the Seller may give notice in writing to the Customer to return any Goods to the Seller (unless sold) and sale proceeds paid to clear monies owing by the Customer to the Seller. Upon such notice being given the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
(c) the Customer is only a bailee of the Goods and until such time as the Seller has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods on trust for the Seller; and
(d) if the Customer fails to return the Goods to the Seller then the Seller or the Seller’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Goods are situated as the invitee of the Customer and take possession of the Goods, and the Seller will not be liable for any reasonable loss or damage suffered as a result of any action by the Seller under this clause.
(e) The Customer recognises that some products may not be returnable such as in the case of products which may have regulatory obligations limiting the returnability of product.
(f) If the Customer is not completely satisfied with goods or items supplied, the Customer may request a refund or replacement of goods. A full refund or replacement will be supplied at the sole discretion of the Seller. If the goods are surplus to Customers requirements, the Seller at its discretion may give a partial or full refund.
7.0 Personal Property Securities Act 1999 (“PPSA”)
7.1 Upon agreeing to these terms and conditions in writing the Customer acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Goods previously supplied by the Seller to the Customer (if any) and all Goods that will be supplied in the future by the Seller to the Customer.
7.2 The Customer 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 the Seller may reasonably require to register financing statements or financing change statements on the Personal Property Securities Register;
(b) immediately advise the Seller 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.
7.3 The Seller and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
7.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
7.5 Unless otherwise agreed to in writing by the Seller, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
7.6 The Customer irrevocably nominates constitutes and appoints the Seller or the Seller’s nominee as the Customer’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 7.0.
8.0 Customer’s Disclaimer
8.1 To the full extend permitted by law the Customer hereby disclaims any right to rescind, or cancel any contract with the Seller or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by the Seller and the Customer acknowledges that the Goods are bought relying solely upon the Customer’s skill and judgment.
9.1 The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Seller of any alleged defect which should be reasonably apparent, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods is defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Seller has agreed inwriting that the Customer is entitled to reject, the Seller’s liability is limited to (at the Seller’s discretion) replacing the Goods, or discounting the Price of the Goods by an amount agreed to between the Customer and the Seller. Goods will not be accepted for return other than in accordance with this clause.
10.0 Warranty and Liability
10.1 To the extent permitted by law, no warranty is given by the Seller as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded.
10.2 Warranty and Liability is expressly excluded where in the opinion of the Seller, the product or service that has been supplied has been used in part of in full beyond the scope and design of the intended use.
10.3 The Seller shall not be responsible for any direct or indirect loss and/or expense (including loss of profit) suffered by the Customer and if the Seller incurs any liability such liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods in respect of which liability arises.
11.0 Consumer Guarantees Act 1993
11.1 The Seller agrees to abide by all terms laid out by the Consumer Guarantees Act 1993.
12.0 Default and consequences of Default
12.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 1.5% per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.
12.2 If the Seller exercises its rights under clause 7.0 or the Customer defaults in respect of any obligations herein (including payment of any invoice when due)the Customer shall indemnify the Seller from and against all costs (including legal costs on a solicitor/client basis) and disbursements incurred by the Seller.
12.3 Without prejudice to any other remedies the Seller may have, if at any time the Customer is in breach of any obligation (including those relating to payment),the Seller may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Customer for any loss or damage the Customer suffers because the Seller has exercised its rights under this clause.
12.4 Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable in the event that: (a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Customer will be unable to meet its payments as they fall due; or (b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or (c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
13.1 The Seller may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice the Seller shall repay to the Customer any sums paid in respect of the Price. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
13.2 In the event that the Customer cancels delivery of the Goods the Customer shall be liable for any loss incurred by the Seller (including, but not limited to, any loss of profits) up to the time of cancellation.
14.0 Privacy Act 1993
14.1 The Customer and the Guarantor authorises the Seller to: (a) collect, retain and use any information about the Customer, for the purpose of assessing the Customer’s creditworthiness or marketing products and services to the Customer; and (b) disclose information about the Customer, whether collected by the Seller from the Customer directly or obtained by the Seller from any other source,to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer. 14.2 Where the Customer and/or Guarantor are an individual the authorities under clause 14.1 are authorities or consents for the purposes of the Privacy Act 1993. 14.3 The Customer and/or Guarantor shall have the right to request the Seller for a copy of the information about the Customer and/or Guarantor retained by the Seller and the right to request the Seller to correct any incorrect information about the Customer and/or Guarantor held by the Seller.
15.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected and shall remain of full force and effect.
15.2 This Agreement shall be governed by the laws of New Zealand.
15.3 The Seller shall have a right of set off in respect of any monies due under this Agreement by the Customer in respect of any monies owed to the Customer by the Seller. The Customer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Customer by the Seller.
15.4 The Seller may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
15.5 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
15.6 The Customer shall give the Seller not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer (if a Company) or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice).
15.7 The failure by the Seller to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Seller’s right to subsequently enforce that provision.