Terms and Conditions of Trade
1.1 These terms and conditions and accompanying Credit Account Application Form are the only basis on which Peter Gower NZ Limited (“Peter Gower” or ”us”) supplies goods to its customers (“Customer” or “you”).
1.2 They are subject to the laws of New Zealand and the non-exclusive jurisdiction of the court of New Zealand.
1.3 They may only be modified or altered by specific written agreement signed by a senior representative of Peter Gower. Anything to the contrary in any communication from the Customer whether by online order, telephone or otherwise is ineffective.
1.4 From time to time, for any reason, we may decide to change them. We will give notice of any change by posting the new terms and conditions on our website (www.petergower.co.nz) and any order after the date of posting will be deemed to be on Peter Gower’s new terms and conditions.
1.5 If your account in inactive for 12 months or more then it may be closed at Peter Gower’s discretion. You will then be required to reapply for new credit terms.
2. ORDERS AND RESALE
2.1 Our current list of goods and prices is on our website or as communicated to the Customer. The Customer may place an order with Peter Gower through email, telephone or facsimile. The Customer is responsible for correctly entering or supplying Peter Gower with the requested order information.
2.2 Orders will not be binding on us until the later of (1) our acceptance of your order by email or facsimile or, if by telephone, when the verbal order is confirmed by email or facsimile or (2) if no such acceptance by us occurs, when the goods are delivered to the Customer in accordance with paragraph 5.1. We may refuse an order at any time in our discretion.
2.3 The Customer agrees that the goods are premium brands and are only supplied by Peter Gower to the Customer for resale in the ordinary course of business at the Customer’s premises or from their own website.
2.4 Unless expressly agreed to in writing (refer to paragraph 1.1), the goods are not supplied for resale through other means such as on-line channels and buyer-seller matching or auction sites. If the Customer makes (or threatens to make) such sales Peter Gower has the right to terminate any contract with the Customer under paragraph 10.
3. PRICE AND PRICE VARIATION
3.1 Our prices for the goods (“price”) are GST exclusive unless otherwise stated by Peter Gower. They do not include freight and insurance and any other charges or taxes directly related to our supply of the goods. These items will be charged to the Customer separately in our invoice.
3.2 Peter Gower can alter its prices and charges in the same manner as it changes these terms and conditions (refer to paragraph1.4). Those prices and charges will not apply to orders that we have already accepted (refer to paragraph 2.2).
4.1 Unless expressly agreed to in writing (refer to paragraph 1.1), the Customer must pay the full price for the goods by the 20th day of the month following the month of invoice. This period of credit is subject to our attached Credit Account Application Form and paragraph 8. Peer Gower will only accept payment through cash, cheque or direct credit. Credit card payment is not acceptable.
4.2 If the Customer disputes any account, the undisputed portion of the account must be paid by the Customer as provided above. Any disputed account must be brought to Peter Gower’s attention within 7 days of delivery of the goods with details.
4.3 In accordance with paragraph 10, Peter Gower reserves the right to suspend delivery of further goods or cancel current orders if the Customer is in default in payment for goods previously delivered.
4.4 Interest at the current overdraft interest rate published by the bankers of Peter Gower plus 10% is payable on all overdue accounts from their due date to the date of payment in full.
4.5 Any expenses, costs or disbursements (including debt collection agency fees or solicitor’s costs) incurred by Peter Gower in recovering any outstanding monies must be paid by the Customer and are added to the unpaid amount and will accrue interest as provided for in paragraph 4.4.
5 DELIVERY AND RISK
5.1 Peter Gower will deliver the goods to the address stated on the Customer’s order or as agreed by Peter Gower in writing with the Customer. If your order has not already been accepted by us in accordance with paragraph 2.2, your order will not be binding on us until we have delivered the ordered goods to your premises and the delivery docket presented by the carrier is signed by a person with your apparent authority to accept delivery of the goods. It is agreed that time is not of the essence in relation to delivery. Risk in the goods passes to the Customer upon delivery of the goods to its designated delivery premises,
5.2 Peter Gower will deliver the goods by such carrier or other form of transport Peter Gower considers to be appropriate. Where the Customer specifies the carrier and the means of carriage (and this is agreed to by Peter Gower) the costs of doing so will be a separate charge to the Customer and added to the invoice for the goods. The Customer must inform Peter Gower within 14 days of the date of invoice if proof of delivery is required failing which no claim for proof of delivery may be made.
5.3 Peter Gower will not be responsible for or bear any cost for part delivery or delay in delivery of the goods as a result of events occurring beyond Peter Gower’s control.
5.4 You must inspect the goods upon delivery for shortages or damage in transit and inform us with 7 days thereafter (refer to paragraph 4.2).
6. RETURN OF GOODS
6.1 Peter Gower will not accept the return of goods for credit or any other purpose unless it agrees to accept the return of the goods and advises the Customer of a return advice number prior to the return of goods. Return of goods (at your cost) will only be accepted for credit within 14 days of delivery, unless the shortfall in delivery or damage is our fault in which event we will pay the return freight cost.
6.2 No returned goods will be accepted by Peter Gower (even if Peter Gower have previously agreed to do so) if they have been tampered with by you or any other person, if they are goods expressly sold on a non-return basis, or if they are not accompanied by the return advice number referred to in paragraph 6.1. Where goods are returned to Peter Gower but are not accepted for that reason, we will return them to you, at your expense and you may not dispute your account.
6.3 Receipt by Peter Gower or by any of our agents or representatives of any goods returned other than in accordance with paragraphs 6.1 and 6.2 does not constitute nor be deemed to constitute Peter Gower’s acceptance of the return of the goods for credit or any other purpose.
7. INTELLECTUAL PROPERTY AND INFORMATION
7.1 By purchasing the goods from Peter Gower, the Customer does not acquire any intellectual property in the goods including branding and similar rights whether relating to Peter Gower or to the manufacturer of the goods.
7.2 All information made available to the Customer by Peter Gower (including, without limitation, customised pricing, proposals, electronic catalogues, details of improvements and cost reductions), is Peter Gower’s intellectual property cannot be copied, altered or distributed without its prior written consent.
8. THE PERSONAL PROPERTIES SECURITIES ACT 1999 (“PPSA”)
8.1 All terms in this clause have the meaning in the PPSA and sections references are to those sections in the PPSA.
8.2 The Customer grants to Peter Gower a purchase money security interest (“PMSI”) in the goods supplied by Peer Gower to the Customer and their proceeds to secure the payment of the purchase price for the goods. The Customer agrees that Peter Gower may register a financing statement under the PPSA to give notice of the PMSI.
8.3 Nothing in sections 114(1)(a), 133 and 134 apply to the PMSI. The Customer waives is right to receive a copy of the PMSI verification statement and its rights under sections 116, 117, 119, 120(2), 121, 125, 131 and 132.
9. WARRANTIES AND LIABILITY
9.1 Unless otherwise specifically provided in any quote, Peter Gower will supply the Customer with the goods in accordance with their manufacturer’s or supplier’s warranties, if assignable or transferrable to the Customer.
9.2 If the Customer (and its customers) do not follow any operating instructions for the goods the manufacturer’s warranties may not apply.
9.3 Peter Gower’s supply of the goods is subject to the implied obligations, warranties and guarantees set out in the following clauses (and, to the extent permissible by law, the indicated exclusions of liability):
a. Sale of Goods Act 1908. These are excluded entirely whether in respect of contracts to which the Consumer Guarantees Act 1993 applies or otherwise.
b. Consumer Guarantees Act 1993. The implied guarantees in this Act are excluded in respect of non-consumer transactions for the goods.
c. Fair Trading Act 1986. The provisions of this Act including ss 9, 12A, 13 and 14(1) are excluded in respect of the supply of in trade of the goods
9.4 To the extent permitted by law, the provisions of the Consumer Guarantees Act 1993 (“CGA”) do not apply to the supply of the goods by Peter Gower to a Customer who acquires or holds itself out as acquiring the goods for the purpose of a business.
9.5 If the Customer re-supplies the goods in trade then, in respect of the supply of the goods by the Customer to its own customers, the Customer must:
a. Ensure that its own customers are notified at or before the time the goods are supplied of the manufacturer’s standard warranty or guarantee provided by the supplier of the Goods to Peter Gower and that Peter Gower does not undertake that repair facilities and /or parts will be available for the goods beyond the duration of any standard warranty or guarantee
b. Contract out of the CGA where the Customer’s own customers are consumers who acquire the goods for the purpose of a business;
c. List all known defects in the Goods on a notice displayed with the Goods and on any sales agreement, docket, receipt or credit card voucher, retaining copies;
d. Not take steps to conceal any defects in the Goods from its customers;
e. Not make any representation concerning the description of the Goods if it does not correspond with the actual description and specification of the Goods or the manufacturer’s description or guarantee.
9.6 To the extent that the law permits or allows Peter Gower to exclude or limit its liability for any breach of the warranties and guarantees either given in paragraph 9.3 or otherwise implied into these terms and conditions:
a. At Peter Gower’s option, the Customer’s only remedies for the breach are the re-supply of the goods to the Customer or the repayment of all money paid by the Customer in respect of the original supply of the goods;
b. The Customer’s remedy for all direct and indirect damage, including loss of profits, loss of opportunity and savings, is as set out above in sub-paragraph a. and Peter Gower will not be liable otherwise for any direct or indirect loss or damage of any kind whatsoever (however it is described), arising from its supply of goods to the Customer, whether suffered or incurred by the Customer or any other person and whether in contract or tort (including negligence) or on the basis of any other legal principle; and
c. If for any reason the preceding remedies and limitations are held to be ineffective then Peter Gower’s maximum liability to the Customer in respect of all claims relating to the Goods is limited to 3 times the cleared payments actually made by the Customer to Peter Gower in respect of the goods.
9.7 The Customer agrees to indemnify Peter Gower against all claims and loss of any kind whatsoever however caused or arising as a result of any act or omission of the Customer in connection with the supply of the goods to it by Peter Gower.
10.1 If the Customer:
a Does not make any payment due under these terms and conditions or otherwise breaches its obligations under its contract with Peter Gower;
b Ceases or threatens to cease its business;
c Makes a composition or arrangement with its creditors, being an individual or partnership, enters into bankruptcy or dissolution, or being a limited liability company, is subject to voluntary administration, liquidation or receivership proceeding, commit an act of bankruptcy, then, Peter Gower (in addition to its other rights and remedies) may by notice to the Customer suspend the contract and the delivery of any goods on one or more occasions or terminate its contract with the Customer, in which event Peter Gower may without liability to the Customer not fulfil any uncompleted orders of the Customer and treat any outstanding purchase price for goods previously delivered as immediately due and payable.
Peter Gower NZ Limited Terms and Conditions Version 4.2