Terms & Conditions
1. Definitions
In these Terms and Conditions of Trade:
"Account" means the Customer's account with the Vendor.
"Customer" means the person or entity making the application or any person acting with ostensible authority on behalf of the Customer.
"Goods" means goods supplied by the Vendor to the Customer at any time.
"Guarantor" means any party executing a guarantee of the Account with the Vendor.
"Order" or "Orders" means the order or orders of the Customer to the Vendor to supply Goods and/or services.
"PPSA" means the Personal Property Securities Act 1999.
“Services” means any services provided to the customer by the Vendor under this Agreement.
"Vendor" means HOST SERVICE LIMITED or associated entities.
2. Application
These terms and conditions shall apply to all sales of goods supplied to, and services performed for, the customer by the Vendor.
3. Non-Variation
No variation of any of these conditions shall be binding unless expressly agreed to by the Vendor in writing.
4. Acceptance
Each Order shall constitute acceptance by the Customer of these Terms and Conditions of Trade.
5. Prices
Prices are subject to change without notice. All Orders will be charged at prices prevailing at the date of delivery of the Goods.
All prices are exclusive of GST unless otherwise stated.
6. Orders
Orders will be on such forms or in such manner as the Vendor may require from time to time.
7. Delivery
Where the Order makes provision for delivery then delivery shall take place at the place stated in the Order. If no place is indicated then delivery shall be made at the physical address of the Customer set out in the application.
8. Time of Performances
Time shall in no case be of the essence. The Vendor shall not be responsible for any delay in delivery of the Goods and the Customer shall not be entitled to cancel orders because of any such delay. Dates for delivery are given in good faith and are not to be treated as a condition of sale or purchase. Delivery by the Vendor to a carrier is deemed to be delivery to the Customer.
9. Terms of Payment
(a) Unless otherwise specified, payment for all Goods shall be made prior to delivery.
(b) Where a customer has opened an account with the vendor, payment for goods shall be made no later than 20th day of the month following the date of invoice, time being of the essence. The Vendor reservices the right to demand payment before that date or in advance and further reserves the right to specify in any quotation a requirement for a deposit to be paid prior to provision of goods or services.
(c) An administration fee may be charged on all overdue amounts in addition to any other charges pursuant to this clause.
(d) Interest will accrue on all amounts overdue at the rate of 4 % above the Westpac Commercial Overdraft rate as at the date the account becomes due and will be calculated on a day by day basis until payment is made in full.
(e) All costs of or incurred by the Vendor 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 shall be payable by the Customer.
(f) 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, the Vendor may cancel any Order without prejudice to any other rights it may have and payment for all completed Orders shall Immediately become due.
(g) The Vendor may suspend or terminate this agreement if at any time the Vendor considers the Customer’s creditworthiness to be unsatisfactory for any reason or if the Customer is in default of any of its payment or other obligations hereunder. The Vendor shall not be responsible under any circumstances for any loss, damages, cost or expenses whatsoever caused in any way by the suspension or termination under this clause.
(h)The Guarantor agrees that the Guarantor will be personally liable to reimburse The Vendor for all monies due under the terms of this agreement, such reimbursement to be paid within 21 days of demand being made by The Vendor for such monies (time being of the essence).
10. Quotation
Where a quotation is given by the Vendor for the supply of Goods:
(a) unless otherwise agreed the quotation shall be valid for thirty (30) days from the date of issue;
(b) the quotation shall be exclusive of Goods and Services Tax unless specifically stated to the contrary;
(c) the Vendor reserves the right to alter the quotation because of circumstances beyond its control.
11. Errors or Omissions
Clerical errors or omissions, whether in computation or otherwise In the quotation, acknowledgement or invoice shall be subject to correction.
12. Risk
Where the vendor has arranged freight, risk shall pass to the customer on delivery, otherwise, from the time of dispatch to the Customer by the Vendor, risk in all Goods supplied shall pass to the Customer and any loss, damage or deterioration to the Goods shall be borne by the Customer. The Customer shall notwithstanding any loss, damage or deterioration to the Goods remain liable to pay for the Goods.
13. Ownership/General Lien
(a) The Vendor shall retain ownership of all Goods supplied until it receives payment in full of all amounts owing by the Customer for all Orders.
(b) If any of the Goods are incorporated in or used as material for other goods before payment Is made ownership in the whole of the other goods shall be and remain with the Vendor until payment Is made. The Vendor's Security Interest in the Goods shall continue In the terms of section 82 of the PPSA.
(c) The Vendor shall have a right to stop and retrieve the Goods in transit whether or not ownership has passed.
14. Ownership
Until payment is made by the Customer, the Customer agrees to:
(a) ensure the Goods are readily identifiable at all times as the property of the Vendor;
(b) hold the Goods as trustee for the Vendor and will deal with the Goods for and on behalf of the Vendor (but will not hold the Customer out as an agent to any third parties);
(c) if the Goods are resold, the proceeds of re-sale will belong to the Vendor and the Customer shall keep the proceeds of sale in a separate account for which separate records are kept.
15. Merger with Other Goods
If the Goods are attached, fixed or Incorporated into any property of the Customer, by way of any manufacturing or assembly process by the Customer or any third party or otherwise, title in the products and services shall remain with the Vendor until the Customer has made payment for all Goods and where those Goods are mixed with other property so as to be part of or constituent of any new goods title to those new goods shall be deemed to be assigned to the Vendor as security for the full satisfaction by the Customer of the full amount owing by the Customer to the Vendor.
16. Recovery of Goods
(a) In the event of non-payment or if payment of the Customer's Account is overdue the Vendor shall be entitled without prejudice to any right it has at law or in equity to enter the place where the Goods are stored whether the Customer's premises or property or the premises or property of a third party for the purpose of recovering and taking possession of the Goods supplied.
(b) The Customer warrants to the Vendor that where the Goods are stored on the premises or property of a third party the Customer is acting as agent for the third party and has the full authority of the third party to authorise entry on to the premises or property of the third party for the purpose of recovering the Goods without releasing the Customer from liability.
(c) The Vendor will not be responsible for any damage reasonably caused in the course of removal of Goods supplied either in the possession of the Customer or a third party and the Customer indemnifies the Vendor in respect of damage caused in the removal of the Goods from the property of a third party.
(d) The Vendor may resell the Goods and apply the proceeds towards payment of the Customer's outstanding Account with the Vendor. Any shortfall will remain the liability of the Customer. The Customer Indemnifies the Vendor for all costs and expenses including legal costs as between solicitor and client which the Vendor may incur in recovering the Goods and any monies owed to it.
17. Warranties
(a) Unless otherwise specified, the Vendor gives no warranty express or implied as to the quality, description or fitness for any particular purpose of the Goods.
(b) Where applicable, manufacturer's warranties will attach to the Goods.
(c) Where Goods supplied are defective in terms of any condition warranty or guarantee or otherwise do not conform to the Order, the Vendor will at its discretion replace or repair any faulty Goods or pay the Cost of replacing them, but only if a claim is made by the Customer within seven days of delivery of the Goods time being of the essence.
18. Compliance
The Customer shall be solely responsible for obtaining any necessary permits under and for compliance with all legislation, regulations, bylaws or rules having the force of law in connection with the installation and operation of the Goods.
19. Cancellation
The Customer shall not be entitled to cancel an Order other than as allowed pursuant to these Terms and Conditions of Trade.
20. Returns
a) The Customer shall not be entitled to return the Goods or Cancel an Order other than as allowed pursuant to these Terms and Conditions of Trade.
b) Faulty or wrongly supplied goods see ci 15(c).
c) Goods correctly supplied cannot be returned without the prior consent of the Vendor, and a re-stocking fee may be charged. No credit will be allowed for goods returned in dirty or damaged condition or not in original undamaged packaging.
21. Personal Property Securities Act 1999
(a) The Customer hereby acknowledges that these Terms and Conditions of Trade constitute a security agreement which creates a security interest in favour of the Vendor in all Goods previously supplied by the Vendor to the Customer (If any) and all after-acquired Goods supplied by the Vendor to the Customer (or for the Customer's account) to secure the payment from time to time and at a time, including future advances. The Customer agrees to grant a "Purchase Money Security Interest" to the Vendor, as that term is defined in the PPSA.
(b) The Customer acknowledges and agrees that by assenting to these terms the Customer grants a security Interest (by virtue of the retention of title clause in these Terms and Conditions of Trade) to the Vendor and all Goods previously supplied by the Vendor to the Customer (if any) and all after-acquired Goods supplied by the Vendor to the Customer (or for the Customer's account) and these terms shall apply notwithstanding anything express or Implied to the contrary contained In the Customer's purchase order.
(c) The Customer undertakes to:
(I) 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 Vendor may reasonably require to enable registration of a financing statement or financing change statement on the Personal Property Securities Register ("PPSR');
(ii) not register a financing change statement as defined in section 135 of the PPSA or make a demand to alter the financing statement pursuant to section 162 of the PPSA in respect of the Goods without the prior written consent of the Vendor;
(iii) give the Vendor not less than 14 days prior written notice of any proposed change in the Customer's name and/or any other changes in the Customer's details (including but not limited to changes in the Customer's address, facsimile number, email address, trading name or business practice);
(iv) be responsible for the full costs incurred by the Vendor (Including actual legal fees and disbursements on a solicitor and client basis) in obtaining an order pursuant to section 167 of the PPSA.
(v) The Customer waives any rights it may have under sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA upon enforcement.
(d) Pursuant to section 148 of the PPSA, unless otherwise agreed to in writing by the Vendor, the Customer waives the right to receive the verification statement in respect of any financing statement or financing change statement relating to the security interest.
(e) To the maximum extent permitted by law, the Customer waives its rights and, with the Vendor's agreement, contracts out of its rights under sections referred to in sections 107(2), 8(e) and (g) to (I) of the PPSA.
(f) The Customer agrees that nothing in section 113, 114(1)(a), 117(1)(c), 133 and 134 of the PPSA shall apply to these terms, and, with the Vendor's agreement, contracts out of such sections.
(g) The Customer and the Vendor agree that section 109(1) of the PPSA is contracted Out of in respect of particular Goods if and only for as long as the Vendor is not the secured party with priority over all other secured parties In respect of those Goods;
(h) The Customer agrees that immediately on request by the Vendor the Customer will procure from any persons considered by the Vendor to be relevant to its security position such agreement and waivers as the Vendor may at any time require.
22. Events of Default
All payments shall become immediately due to the Vendor and the Vendor may at its option suspend or terminate these Terms and Conditions of Trade and/or exercise any of the remedies available to It under these Terms and Conditions of Trade in the event that
(a) a receiver is appointed over any of the assets or undertaking of the Customer;
(b) 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;
(c) The Customer goes Into voluntary liquidation, amalgamates with another company or acquires Its own shares in accordance with the Companies Act 1993;
(d) The Customer suspends payments to its creditors or makes or attempts to make an arrangement or Composition or scheme with Its creditors; or
(e) The Customer becomes insolvent within the meaning of the Insolvency Act 1967 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 section 261 of the Companies Act 1955; or commits any act of bankruptcy.
23. Authority to Sell Goods Supplied
Notwithstanding that title In all Goods is retained by the Vendor, the Customer Is authorised to sell the Goods in the ordinary course of business provided that the authority may be removed by written notice if the Vendor considers the credit of the Customer to be unsatisfactory or if the Customer is in default in the performance of its obligations to the Vendor and shall be deemed automatically revoked If the Customer 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 a receiver Is appointed for all or any assets of the Customer.
24. Sale of Goods Supplied
(a) Where Goods in respect of which property has not passed to the Customer are sold by the Customer in the ordinary course of business, the book debt created on the sale and the proceeds of sale when received shall be held by the Customer for the Vendor In terms of section 45 of the PPSA.
(b) Where any proceeds of sale are placed in the Customer's bank account the funds in the Customer's bank account shall be deemed to be held on trust for the Vendor to the extent of proceeds of sale.
(c) Where any payments are made from the Customer's bank account otherwise than to the Vendor payment shall be deemed to have been made from all other funds in the Customer's bank account and not from funds held on trust for the Vendor.
(d) The trust obligation imposed by this clause and the Vendor's entitlements under the PPSA shall continue for so long as the Vendor Is unpaid for all Goods supplied to the Customer.
25. Security Interest
The Customer gives the Vendor a Security Interest In all of the Customer's present and after-acquired property in which Goods or materials supplied or financed by the Vendor have been attached or incorporated.
26. Liability
(a) The Vendor's liability to the Customer shall be limited to the value of the Order supplied.
(b) The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires goods from the Vendor for business purposes in terms of Sections 2 & 43 of that Act.
(c) The Sale of Goods Act 1908, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon the Vendor which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on the Vendor the Vendor's liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.
(d) Except as otherwise provided above the Vendor shall not be liable for any loss or damage of any kind whatsoever, arising from the supply of Goods by the Vendor to the Customer including Consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Goods provided by the Vendor to the Customer.
27. Suitability of Goods
The Customer must satisfy itself that the Goods as ordered are fit and suitable for the purpose for which they are required. The Vendor makes no warranties or representation and expressly negates any implied or expressed condition that the Goods will be suitable for a particular purpose or use for which the Customer may use them. The Customer accepts all risk and responsibility for consequences arising from the use of the Goods whether singularly or in combination with other Goods.
28. Dimensions and Specifications
Dimensions and specifications contained or referred to in any Order, catalogues, brochure or other publications maintained or issued by the Vendor are estimates only.
29. Assignment
(a) The Customer shall not assign all or any of its rights or obligations under this contract without the written consent of the Vendor.
(b) The Vendor is entitled at any time to assign to any other party all or any part of a debt which is owing to the Vendor.
30. Disputes
(a) In the event of any dispute arising between the Vendor and the Customer, such dispute shall in the first instance be referred to mediation for resolution.
(b) In the event that resolution by mediation is not achieved to the satisfaction of both parties within 30 days of referral to mediation, either party may then take legal action to resolve the dispute.
(c) Nothing in this clause prevents the Vendor from taking legal action to enforce payment of any debt due, nor where required to seek interlocutory or injunctive relief.
31. Notices
All notices required or committed under these Terms of Trade are to be served as provided in section 152 of the Property Law Act 1952, or by facsimile, in which case notice is deemed to be given the day after sending.
32. Validity
If any provision of this contract shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
33. Changes of General Terms and Conditions
(a) The Vendor may at any time refuse an order by the Customer or decline to approve any application by the Customer for any reason whatsoever.
(b) The existence of an account by the Customer with the Vendor does not automatically entitle the Customer to credit in the future.
(c) Failure by the Vendor to enforce any of the terms and conditions Contained in these Terms and Conditions of Trade shall not be deemed to be a waiver of any of the rights or obligations the Vendor has under these Terms and Conditions of Trade.
(d) The Vendor may from time to time by written notice to the Customer amend, add to or repeal the trading conditions covered by this Agreement or may substitute any fresh trading conditions and such amendment, addition or substitute trading conditions shall be binding on the Customer fourteen days after the date of delivery of the notice.
34. Force Majeure
Neither the Vendor nor the Customer will be liable to the other for any breach of this Agreement by any extraordinary occurrences which are beyond the reasonable control of the party in question.
35. Entire Agreement
These Terms and Conditions of Trade constitute the entire agreement and supersede and extinguish all prior agreements and understandings between the Vendor and the Customer.
36. Other Agreements
If there is inconsistency between these Terms and Conditions of Trade and any order submitted by the Customer or any other arrangement between the Vendor and Customer, these Terms and Conditions of Trade prevail unless otherwise agreed in writing by the parties.
37. Governing Law
These Terms and Conditions of Trade will be interpreted in accordance with and governed by the laws of New Zealand
38. Privacy Act.
38.1 The customer authorises the vendor or its agent or duly authorised credit reporter to:
1. access, collect, retain and use any information about the customer for the purpose of assessing the customer’s creditworthiness and /or for the purpose of marketing products and services to the customer.
2. Disclose information about the customer, whether collected by the vendor from the customer directly or obtained by the vendor 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.
38.2 Where the customer is an individual the authorities under this clause are authorities or consents for the purposes of the Privacy Act 1993
38.3 The customer shall have the right to request the vendor for a copy of the information about the customer retained by the vendor and the right to request the vendor to correct any incorrect information about the customer held by the vendor.
39. Consumer Guarantees Act
Where the Customer purchases the goods for the purposes of a “business” (as defined by the Consumer Guarantees Act 1993) then the Consumer Guarantees Act is excluded.
40. No Representations
The Customer acknowledges that the goods have been purchased by the Customer without any representation or warranties about their quality or fitness for purpose, and that the Customer does not rely on The Vendor as to the suitability or appropriateness of the goods or its design for the intended use by the Customer.
41. Limitation of Liability
Notwithstanding anything above The Vendor shall not be liable for any consequential or indirect losses, expenses or damages suffered by the Customer in consequence of any defect in materials or workmanship of the goods.
Claims for error, short supply, or for goods arriving in damaged condition must be made within seven (7) days of the date of invoice. The Customer is deemed to have accepted the goods unless it makes a claim under this clause.
The Vendor shall not be liable in any way whatsoever for any failure to deliver any order on time or for non-delivery or delay caused directly or indirectly by war, act of God, strike, lockout, riot, Government action or interference, fire, earthquake, material, shortage, late delivery by manufacturers, shipping or transport delay or any other cause beyond the reasonable control of The Vendor.
The failure on the part of The Vendor to exercise and enforce any rights conferred by this agreement shall not be deemed to be a waiver of any such right, nor operate so as to bar the exercise thereof at any time or times thereafter
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