Conditions of Trade
HomePlus General Conditions of Trading in Respect of Sales Effective 1st April 2005
The following terms and conditions shall be incorporated into every contract between the Customer and the Company for the supply of the Company of goods, unless agreed in writing by the Company and contained on the reverse of this form for annexed hereto.
1. Definitions: ‘Company’ means the HomePlus franchise/trading company as nominated on this quotation form, a company duly incorporated in New Zealand. ‘Customer’ means the person or persons, firm, company or incorporation purchasing any good or goods direct from the Company. Company’s Premises being the premises in which the Company ordinarily carries on business in New Zealand.
2. Acceptances: No quotation made by the Company shall constitute an offer by the Company. No order will be accepted except on these conditions of trading and any terms proffered by the Customer are hereby excluded. An order placed by a Customer whether in writing by facsimile or email shall be deemed to constitute an offer by the Customer to enter into a contract on these conditions and may be accepted by the Company in writing by facsimile or email. All verbal orders made by Customers must be confirmed in writing within three days and the Company may not act in response until written confirmation is received. If it does so act, these conditions of trading shall be deemed to apply.
3. Price: Quoted prices are based on the cost of labour, materials, freight, insurance and exchange rates current at the date of the quotation and the Company performing the work for the preparation of the goods during normal business hours. The quote price includes goods and services tax or withholding tax. The quoted price may be increased to the extent that the cost of the goods to the Company increases as a result of any increase in the above costs, changes in the exchange rates or overtime or extra shifts required by the Customer. If any errors are made by the Company in computing the quoted price may be adjusted to correct such errors. Any additional expense incurred as a result of changes made at the request of the Customer or by any delay in the continuity of the work caused by any act or default of the Customer shall be payable by the Customer in addition to the quoted price. Such aggregate, increased or corrected price will be the contract price (‘Contract Price’). The Contract Price does not include delivery, assembly, construction or erection of the goods unless specifically stated. The Customer shall pay all goods and services tax payable in respect of the sale or hiring of the goods by the Company to the Customer at the time of payment.
4. Deposit: In the case of Custom-made goods the Company may require a deposit of the Contract Price to be paid by the Customer prior to commencement by the Company of the manufacture of the goods. The sum of the required deposit will be determined by the Company in its sole discretion.
5. Cancellation: The Customer shall not be entitled to cancel any order which is accepted by the Company. If the Company agrees to a cancellation the Company may charge the Customer for all costs and expenses incurred by the Company in respect of the contract including the Company’s loss of profits.
6. Illustrations: Any illustrations given by the Company are given as an aid to identification only and it is not intended that it be will a condition of the terms of sale nor does the Company warrant that the goods shall correspond with the illustration.
7. Delivery: The Company shall try to make delivery at the time or date for delivery specified by the Company however it shall not be liable for the consequences of any delay howsoever arising and the Customer acknowledges that the Company will not accept any liability for any claims or losses arising from its failure to meet the delivery date. Delayed delivery shall not invalidate the contract or subject the Company to any penalty and the Customer will accept the goods when delivered any pay the price prevailing at the date of delivery notwithstanding any such delay. Unless otherwise agreed the Customer shall take delivery of the goods at the Company’s Premises. If the Company arranges for the delivery of the goods to the location specified by the Customer the cost of such delivery shall be borne by the Customer and unless the quoted price specifically includes delivery and costs that cost shall be in addition to the quote price. Delivery shall be deemed to have been effected:
a) where the Company does not arrange for delivery upon the goods leaving the Company’s Premises;
b) where the Company does arrange for delivery upon the goods arriving at the location specified by the Customer;
c) upon the date the goods are due and available for delivery and the Company is willing and able to effect delivery regardless of whether the Customer takes or accepts the same; Where the goods are available and due for delivery and the Customer fails to take or accept the goods the Company may change the Customer storage and transportation costs together with all other costs incurred by the Company in respect of storing and maintaining the goods at the Company’s premises.
8. Force majeure: The Company shall not be liable for any delay alteration or failure to perform its obligations under this Contract if occasioned by any event beyond the Company’s control (‘force majeure’). The performance of the Company’s obligations under this agreement will be suspended for the period of any delay due to force majeure. Any additional costs incurred by the Company due to events beyond its control will be payable by the Customer.
9. Representations and warranties: Any representation undertaking of warranty made by the Company or any agent employee or representative of the Company unless recorded in writing on the reverse of this form or annexed hereto is cancelled and withdrawn and shall not apply to this contract or any contract collateral to this contract. In the event that the Customer makes any modification, addition, alteration or adjustment to the goods without the Company’s prior written consent then any representation undertaking or warranty that is made by the Company or any agent, employee or representation of the Company and recorded in writing on the reverse of this form or annexed hereto shall immediately be cancelled and withdrawn and the Customer agrees that it shall not apply to this contract or any collateral contract. To the extent permitted by law all warranties, conditions and guarantees implied by law (including but not limited to any warranties as to suitability of the goods for the use to which they will be put and the statutory guarantees implied under the Consumer Guarantees Act) are excluded from this contract and shall not apply to it.
10. Liability: The Company’s liability under this contract or any contract collateral hereto is limited to replacing (or at the election of the Company repairing) any detective good to the entire exclusion of any other remedy, which but for this clause the Customer might have and the Company shall be under no liability for any damage injury direct or consequential or other loss or loss of profit or costs charges and expenses on the part of the Customer or any other person other than to repair or replace as mentioned above.
11. Packaging materials: If any crates, cases or bundling are used to package the goods for delivery the cost of these will be extra to the quoted price (unless the quotation specifically states that packaging costs are included therein) and will be payable by the Customer.
12. Payments: Unless otherwise stated all payment shall be due within 7 days of installation. If any payment is not made on the due date the Company may charge interest on such overdue payment from the due date to the date of actual payment at a rate equivalent to the rate of interest charged by the Company’s bank in respect of overdrafts plus 5% (five percent). All amounts payable by the Customer shall be paid free and clear of and (to the extent required by law) without any deduction or withholding on account of any tax. If the Customer is required by law to make any deduction or withholding from any amount paid or payable by it under this Contract then the amount payable by the Customer in respect of which sudden deduction, withholding or payment is required to be made shall be increased to the extent necessary to ensure that after making such deduction, withholding or payment the Company receives and retains a net amount equal to the amount it would have received and retained had no such deduction, withholding or payment been made.
13. Default: In the event that:
a) The customer fails to pay any amount owing on the due date or is in breach of any other terms and conditions of this Contract and/or any other contract between the Customer and the Company and such default continues for three days; or
b) The Customer shall have an execution levied against it, becomes bankrupt or insolvent, or commits any act of bankruptcy or enters into or attempts to enter into any composition or arrangement with its creditors (voluntary, informal or otherwise) or in the case of a company, does any act which would render it liable to be wound up or have a receiver or statutory manager appointed over its property or if it has a winding up order made against it or passes or attempts to pass a resolution for the winding up or is a party to the appointment of or have a manager or receiver appointed over the whole or any part of its property or undertaking; or
c) The goods are damaged lost or destroyed; then the total price payable by the Customer shall thereupon be due and payable and the Company may;
1. Enforce payment of the balance of the total price due and payable and interest shall be payable thereon under clause 12 notwithstanding that delivery of the materials has not been effected and that but for this clause payment would not be due; and/or
2. Refuse to deliver and further goods to the Customer (under this contract or under any other contract) until default on the part of the Customer is remedied; and/or
3. Retake possession of any of the goods provided to the Customer and for that purpose may enter the premises where they may be situated, by force if necessary, in such event all costs incurred by the Company in the recovery of the goods are to be paid by the Customer; and/or
4. Cancel this contract. Any rights exercised by the Company pursuant to this clause shall not terminate the Customer’s liabilities under the contract or prejudice any other right or remedy the Company has at law or equity.
14. Intellectual Property:
a) The intellectual property right in respect of the goods and the erection, construction and assembly of the goods remains with the Company notwithstanding the sale or hire of the goods to the Customer. In the event that the goods are modified or altered by the Company or by the Customer or by a third party with the Company’s’ prior written permission (in respect of hired goods) the intellectual property rights in such modifications or alterations shall remain the property of the Company.
b) Where the Company has followed a design or instruction given by the Customer, the Customer shall indemnify the Company against all damages, penalties, costs and expenses of the Company in respect of which the Company may be liable through any work required to be done in accordance with those designs or instructions involving and infringement of a patent, trademark, registered design or common law right. The Customer warrants that any design or instruction furnished or given by the Customer shall not cause the Company to infringe any letter patent, registered design, trademark or common law right.
15. Waiver: Failure or omission by the Company at any time to enforce or require strict or timely compliance of any provision of this contract shall not affect or impair that provision in any way or the rights of the Company to avail itself of the remedies it may have in respect of any breach of that provision whether pursuant to this contract or at law.
16. Severance: The illegality, invalidity or unenforceability of a provision of this contract under any law shall not affect the legality, validity or enforceability of that provision under another law or the legality, validity or enforceability of any other provision of this contract.
17. Variation: No variation or waiver of these terms and conditions shall be recognised or binding on the Company unless that variation is in writing and signed by the Company.
18. Company expenses: The Customer shall pay the costs and expenses including the legal fees and/or collection costs incurred by the Company in exercising any of its rights or remedies or enforcing any of the terms, conditions or provisions of this contract.
19. Indemnity: The Customer shall fully and completely indemnify the Company against any and all claims, actions, suits, proceedings, costs, expenses, damages and liability, including legal fees arising out of or connected with or resulting from a breach by the Customer of its obligations under this contract as result of injury to any person or property caused by or in connection with the use by the Customer of the goods (including without limitation the manufacture, selection, delivery possession, use, operation or return of the goods) whether arising under statute or common law.
20. Acceptance: The Customer acknowledges that it has fully inspected and accepted the goods in good condition and repair.
21. Use: The Customer shall comply at its sole cost and expenses with all laws, by-laws and regulations, and shall take out and maintain all licenses and meet all operating expense relating to the use, operation and maintenance of goods.
22. Set-off: In no event shall the changes payable by the Customer be subject to any set-off by the Customer.
23. Insurance: It shall be the Customers obligation to maintain insurance in respect of the goods from the time the goods leave the Company’s remises until the price shall be received by the Company:-
24. Risk: Notwithstanding that title in the goods may remain with the Company the risk in respect of the goods shall pass to the Customer at the time the goods leave the Company’s premises.
25 (a) It is the intention of the Company and agreed by the Customer that property in the goods shall not pass until payment and that the goods, or proceeds of sale of the goods, shall be kept separate until the Company shall have received the price and:
1. The Customer will hold the goods or any of them on trust for the Company as bailee of the Company.
2. The Customer will store the goods without cost to the Company separately from other goods in the possession of the Customer, and clearly distinguish and identify the goods as the Company’s goods.
3. If the Customers sells or trades the goods, the goods will be sold at market value as fixed by this agreement on account of the Company.
4. While the Customer shall deal as principal and the Company shall not be liable to any person with whom the Customer deals nevertheless the Customer shall hold the entire proceeds of sale or other dealing in respect of the goods in trust for the Company in a separate account for the Company.
5. The Customer shall not deal with the money of the Company in any way adversely to the Company.
6. Until such time as ownership of the goods shall pass from the Company to the Customer the Company may give notice in writing to the Customer to return the goods or any of them to the Company.
7. Upon such notice the rights of the Customer to obtain ownership or any other interests in the goods shall cease.
8. If the Customer fails to return the goods to the Company then the Company or Company’s agent may enter upon and into buildings and premises owned, occupied or used by the Customer where the goods are situated and take possession of the goods, by force if necessary.
9. The Customer shall not charge the goods in any way nor give any interest in the goods while they remain the property of the Company.
25 (b) Nothing in this clause shall prevent the Company from requiring payment of the purchase price or the balance of the purchase price due together with any other amounts due from the Customer to the Company arising out of this Agreement, and the Company may take any lawful steps to require payment of the amounts due and the purchase price.
25 (c) The forging provisions shall not entitle the Customer to return the goods without demand from the Company.
25 (d) If any of the Goods become part of a product or mass (through or by whatever process) such that the identity of those goods is lost in the product or mass, the security interest created by this clause in the product or mass in accordance with the Personal Properties Securities Act 1999 (“PPSA”)
25 (e) If any of the goods are installed in, or affixed to, and become an accession to, other Goods, the security interest continues in the accession in accordance with the PPSA.
25 (f) PPSA
25.1 Security: The Customer acknowledges and agrees that:
(a) By consenting to these terms and conditions the Customer grants a security interest (by virtue of the retention of title clause in clause 25a of these terms) to the Company in all Goods previously supplied by the Company to the Customer (if any) and all after acquired Goods supplied by the Company to the Customer (or the Customer’s account); and
(b) These terms shall apply notwithstanding anything, expressed or implied, to the contrary contained in the Customers purchase order.
25.2 Financing Statement: The Customer undertakes to:
(a) Sign any further documents and/or provide any further information (which information the Customer warrants to be complete, accurate and up to date in all respects) which the Company may reasonably require to enable registration of a financing statement or financing change statement on the Personal Properties Securities Register;
(b) Not register a financing change statement or a change demand in respect to the Goods (as those terms are defined in the PPSA) without the Company’s prior written consent
(c) Give to the Company not less than 14 days prior written notice of any proposed change in the Customer’s name and/or any other changes in its details (including but not limited to changes in its address, facsimile number, trading name or business practise).
25.3 Waiver and Contacting Out:
(a) Unless otherwise agreed to in writing by the Company, the Customer waives its right to receive a verification statement in respect of any financing statement or financing change statement relating to the security interest.
(b) To the maximum extent permitted by law, the Company waives its rights and with the Customer’s agreement hereby contracts out of its right under the sections referred to in sections 107(2)(c) to (e) inclusive and (i) inclusive of the PPSA.
(c) The Customer agrees that nothing in sections 114(a), 113(4) of the PPSA shall apply to these terms and with the agreement of the Company, the Customer contracts out of such sections.
(d) The Customer and the Company agree that section 109(1) of the PPSA is contracted out of I respect or particular Goods if any only for as long as the Company, the Customer contracts out of such sections.
26. Loss or damage in transit: Notwithstanding the provisions of clause 24 hereof, if the Company arranges for delivery of the goods and such goods are lost or damaged in transit before risk passes to the Customer the Company will at its option replace, or give credit for them only if the Customer notifies the Company in writing within seven days after delivery of the goods in the case of damage or short delivery or within seven days of receipt of the Company’s invoice in the case of non-delivery of the whole of the consignment of the goods.
27. Returns: In the event the goods are defective or do not conform the specifications in any way the Customer must notify the Company within seven working days of receipt of the goods by notice in writing and the goods must be forthwith returned at the Customer’s expense to the Company. The Company may then review the goods and in its sole discretion may repair or replace the goods. The Customer may not return the goods in any other circumstances.