TERMS & CONDITIONS OF TRADE
In these terms of trade:
“Account” means the Customer’s account with the Seller;
“Customer” means the person or entity signing a Credit Account Application Form or making an Order and any person acting with ostensible authority on behalf of the party named as the Customer;
“Goods” shall have the same meaning as in Part 3 of the Contract and Commercial Law Act 2017 and are goods supplied by the Seller to the Customer (and where contract so permits shall include any supply of Services as hereinafter defined) means goods supplied by the Seller to the Customer at any time;
“Guarantor” means the person (or persons), or entity that agrees to be liable for the debts of the Customer;
“Order” or “Orders” means any order or orders of the Customer to the Seller to supply Goods;
"PPSA" means the Personal Property Securities Act 1999;
"Terms" means these Terms and Conditions of Trade;
"Price" means the cost of the goods as agreed between the Seller and the Customer subject to clause 4 of this contract;
“Seller” means Peter Gower NZ Limited, its successors and assigns;
2.1 Any instructions received by the Seller from the Customer for the supply of Goods and/or Services shall constitute acceptance of the terms and conditions contained herein. Upon acceptance of these terms and conditions by the Customer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Seller.
2.2 The Terms may only be modified or altered by specific written agreement between the Seller and the Customer.
2.3 None of the Seller's agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Seller in writing nor is the Seller bound by any such unauthorised statements.
2.4 The Seller may, from time to time, for any reason decide to change the Terms. The Seller will give notice by posting the new terms and conditions on their website www.petergower.co.nz and any order after the date of posting will be deemed to be subject to the new terms and conditions.
2.5 If the Customer’s account has been inactive for 12 months or more the account may be closed at the discretion of the Seller. If an account is closed under this clause the Customer will be required to apply for new credit terms.
3. Orders and Resale
3.1 The current list of Goods and associated prices can be found on the Seller’s website www.petergower.co.nz, or as communicated to the Customer directly by the Seller. The Customer may place an order with the Seller through email or telephone. The Customer is responsible for correctly entering or supplying the Seller with the requested order information.
3.2 Orders will not be binding on the Seller until the later of:
(a) The Seller’s acceptance of the Customer’s order by email or, if by telephone, when the verbal order is confirmed by email or;
(b) when the goods are delivered to the Customer in accordance with clause 5.1.
3.3 The Seller may refuse an order at any time at its discretion.
3.4 A minimum order value of $250.00 excluding GST will apply for an order to be accepted by the Seller. Orders with a value of less $250.00 will incur a handling fee of $25.00 excluding GST.
3.5 The Customer agrees that the goods are premium brands and are only supplied by the Seller to the Customer for resale in the ordinary course of business at the Customer’s premises or from their own website.
3.6 Unless expressly agreed to in writing (refer to paragraph 2.2), 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 the Seller has the right to terminate any contract with the Customer under clause 9.
4.1 Prices for goods supplied by the Seller are GST exclusive unless otherwise stated by the Seller. Prices do not include allowances for freight and insurance, and any other charges or taxes directly related to the supply of the Goods. All freight, insurance and any other charges directly related to the supply of Goods will be charged separately under the relevant invoice.
4.2 The Seller can alter prices and charges in the same manner as it changes these terms and conditions at its discretion. Alterations to prices and charges will not be affect previously accepted Orders.
5.1 Where an Order makes provision for delivery then delivery will take place at the place stated in the Order. If no place is indicated, then delivery will be made at the physical address of the Customer set out in the Order or Application for Credit.
5.2 If the Customer is not in a position to accept or take delivery of the Goods as scheduled the Customer will be responsible for all additional charges caused thereby.
5.3 Delivery of Goods by the Seller to the Customer’s premises is deemed to be delivery to the Customer.
5.4 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
5.5 The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
5.6 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.
5.7 The Customer must advise the Seller if they have not received delivery of the Goods within 14 working days of receipt of the associated Invoice. If notice is not given to the Seller within 14 days then the Goods will be deemed delivered, and the Customer will have no right to claim against the Seller for non-delivery of the Goods.
6.1 The Customer must pay the invoices in full by the 20th day of the following month of the date the invoice is provided by the Seller. This period of credit is subject to the attached Credit Account Application Form and clause 15.
6.2 The Seller will only accept payment of invoices by cash, or direct credit. All other payment methods will not be accepted as payment.
6.3 If the Customer disputes any invoice, the undisputed portion of the account must be paid by the Customer in accordance with clause 6.1 and 6.2. Any disputed invoice or amount must be notified in writing to the Seller within 7 days of delivery of the Goods. Said notice must clearly detail the dispute.
7.1 Risk in the goods passes to the Customer upon delivery however ownership of the Goods does not pass until Seller has received payment in full for all amounts owing by the Customer for all orders (see clause 13).
7.2 If any of the Goods are damaged or destroyed prior to property in them passing to the Customer, the Seller is entitled, without prejudice to any of its other rights or remedies under these terms and conditions (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable in respect of the Goods. This applies whether or not the Price has become payable under these terms and conditions. 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.
8. Time of Performances
8.1 Time will in no case be of the essence in respect of the delivery of Goods. The Seller will not be responsible for any delay in the delivery of Goods and the Customer will not be entitled to cancel orders because of any such delay. Dates for delivery of Goods are given in good faith and are not to be treated as a condition of sale or purchase.
9.1 The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery notify the Seller of any alleged defect, 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 are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
10. Default & Consequences of Default
10.1 At the Sellers sole discretion, interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 10% per annum and shall accrue at such a rate after as well as before any judgement.
10.2 If the Customer defaults in payment of any invoice when due, the Customer shall be liable for and indemnify the Seller from and against all the Seller's costs and disbursements including on a solicitor and own client basis and in addition all of the Seller’s costs of collection.
10.3 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 exercised its rights under this clause.
10.4 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, then without prejudice to the Seller's other remedies at law,
(i) the Seller shall be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies; and
(ii) all amounts owing to the Seller shall, whether or not due for payment, immediately become due and payable.
11. Taxes and Duties
Unless expressly included in any quotation or Order, Goods and Services Tax and other taxes and duties assessed or levies in connection with the supply of the Goods and services to the Customer are not included in the price and will be the responsibility of the Customer or, where the payment of such taxes or duties is the responsibility of the Seller at law, the price will be increased by the amount of such taxes or duties.
12. Payment Allocation
The Seller may in its discretion allocate any payment received from the Customer towards any invoice that the Seller determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer the Seller may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Seller, payment will be deemed to be allocated in such manner as preserves the maximum value of the Seller's Purchase Money Security Interest (as defined in the PPSA) in the products.
13.1 The Seller will retain ownership of all Goods supplied until it receives payment in full of all amounts owing by the Customer for all Orders.
13.2 If any of the Goods are attached, fixed or incorporated in or used as material for other goods before payment is made ownership in the whole of the other goods will be and remain with the Seller until payment is made. The Seller’s Security Interest in the Goods will continue in the terms of section 82 of the PPSA.
13.3 The Seller will have a right to stop and retrieve the Goods in transit whether or not ownership has passed.
12.4 Until payment is made by the Customer, the Customer agrees to enable the Goods to be readily identifiable as the property of the Seller.
13.5 Where Goods not already 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 will be held by the Customer for the Seller in terms of section 45 of the PPSA.
13.6 Where any proceeds of sale are placed in the Customer’s bank account the funds in the Customer’s bank account will be deemed to be held on trust for the Seller to the extent of the proceeds of sale.
13.7 Where any payments are made from the Customer’s bank account otherwise than to the Seller, payment will 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 Seller.
13.8 The obligation to hold funds in trust imposed by this clause and the Seller’s entitlements under the PPSA will continue for so long as the Seller is unpaid for all Goods and Services supplied to the Customer.
14. Recovery of Goods
14.1 In the event of non-payment or if payment of the Customer’s Account is overdue the Seller will be entitled without prejudice to any other right it has at law or in equity to enter the place where the Goods are stored whether at the Customer’s premises or property or the premises or property of a third party for the purpose of recovering and taking possession of any Goods supplied.
14.2 The Customer warrants to the Seller 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 supplied without releasing the Customer from liability.
14.3 The Seller will not be responsible for any damage reasonably caused in the course of removal of Goods supplied whether such Goods are in the possession of the Customer or a third party, and the Customer indemnifies the Seller to the full extent in respect of damage caused in the course of removal from the property of a third party.
14.4 The Seller may resell any Goods seized pursuant to this clause and apply the proceeds towards payment of the Customer’s debt to the Seller. Any shortfall will remain the liability of the Customer. The Customer indemnifies the Seller for all costs and expenses including legal costs as between solicitor and client which the Seller may incur in recovering the Goods and any monies owed to it.
The Customer will be solely responsible for obtaining any necessary permits under and in compliance with all legislation, regulations, by-laws or rules having the force of law in connection with the installation operation and provision of the Goods.
16. Personal Property Securities Act 1999
16.1 Upon assenting 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 during the continuance of the parties’ relationship;
16.2 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 a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
(c) not register a financing change statement or a change demand without the prior written consent of the Seller;
(d) give the Seller not less than fourteen (14) days prior written notice of any proposed 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); and
(e) 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.
(f) 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.
(g) The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
16.3 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
17. Authority to Sell Goods
Notwithstanding that title in all Goods is retained by the Seller, 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 Seller considers the credit of the Customer to be unsatisfactory or if the Customer is in default in the performance of its obligations to the Seller and will be deemed automatically revoked if any of the events in clause 9 occur.
Without prejudice to such other rights as the Seller may have pursuant to these Terms, the Seller reserves the right to request from the Customer such security as the Seller may from time to time think desirable to secure to the Seller all sums due to the Seller and may refuse to supply further Goods to the Customer until such security is given.
19.1 Unless specified in writing, the Seller gives no warranty express or implied as to the quality, description or fitness for any particular purpose of the Goods.
19.2 Where applicable, manufacturer’s warranties will attach to the Goods.
19.3 Where the Customer is a consumer within the meaning of the Consumer Guarantees Act 1993 the Customer will have all the rights and remedies provided under that Act but no others.
19.4 The Customer must satisfy itself that the Goods as ordered are fit and suitable for the purpose for which they are required. The Seller 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
20.1 The Seller’s liability to the Customer will be limited to the value of the Order supplied out of which any such liability arose.
20.2 The Consumer Guarantees Act 1993, the Fair Trading Act 1986, the Contract and Commercial Law Act 2017 and other statutes may imply warranties or conditions or impose obligations upon the Seller 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 Seller the Seller’s liability will, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.
20.3 Except as otherwise provided above the Seller will not be liable for any loss or damage of any kind whatsoever, arising from the supply of Goods by the Seller 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 Seller to the Customer.
20.4 The Customer will indemnify the Seller against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of the Seller or otherwise, brought by any person in connection with any matter, act, omission, or error by the Seller its agents or employees in connection with the Goods.
21. Personal Guarantee of Company Directors or Trustees
If the Customer is a Company or Trust, the Director(s) or Trustee(s) accepting these Terms, in consideration for the Seller agreeing to supply Goods and grant credit to the Customer at their request, also sign this contract in their personal capacity and jointly and severally personally guarantee as principal debtors to the Seller the payment of any and all moneys now or hereafter owed by the Customer to the Seller and indemnify the Seller against non-payment by the Customer. Any personal liability of a signatory hereto will not exclude the customer in any way whatsoever from the liabilities and obligations contained in these Terms. The signatories and the Customer will be jointly and severally liable under these Terms and for payment of all sums due hereunder.
22.1 The Customer will not assign all or any of its rights or obligations or any debt (or part thereof) under these Terms without the written consent of the Seller.
22.2 The Seller may assign or sub-contract any part of the provision of the Goods/Services which is to be performed under any contract.
22.3 In respect of any assignment by the Seller pursuant to this clause, the Assignee will be entitled to the full rights of the Seller.
23.1 In the event of any dispute arising between the Seller and the Customer, such dispute will in the first instance be referred to mediation for resolution.
23.2 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.
23.3 Nothing in this clause prevents the Seller from taking legal action to enforce payment of any debt due, nor where the Seller is required to seek interlocutory or injunctive relief.
If any provision of these Terms is invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired.
25. Intellectual Property
25.1 The Seller owns all copyright and any other industrial property rights in and to all work, art, film, tooling, drawings, specifications, models, photographs, documents, and software produced by the Seller with the supply of the goods.
25.2 If any goods are supplied to the Buyers design the Buyer warrants that the manufacture and supply of such goods will not infringe the intellectual property rights of any third party and the Buyer indemnifies the Seller against any liability in the event that the manufacture and supply of the goods does infringe the intellectual property rights of any third party. In case any dispute or claim is made in relation thereto the Seller may terminate this contract by notice in writing to the buyer without any liability on the part of the Seller.
26. Force Majeure
The Seller shall not be liable for any delay in performing its obligations under this agreement to the Customer caused in whole or in part by force majeure which shall include (but not limited to) an act of God, natural disasters, strikes, lockouts, fire war suit, civil commotion, inability to obtain products or supplies including the imposition of any export or import bans or any other cause beyond the reasonable control of the Seller.
27 Privacy Act
27.1 The Customer and the Guarantor/s (if separate to the Customer) authorises the Seller to collect, retain and use any information about the Customer, for the purpose of assessing the Customers creditworthiness or marketing any Goods and Services provided by the Seller to any other party.
27.2 The Customer authorises the Seller to disclose any information obtained to any person.
27.3 The Customer must notify the Seller of any changes in circumstances that may affect the accuracy of the information provided by the Customer to the Seller. If the Customer is a natural person the Customer has the right of access to and correction of any personal information held by the Seller.
28. Entire Agreement
These Terms constitute the entire agreement and supersede and extinguish all prior agreements and understandings between the Seller and the Customer.
29. Governing Law
These Terms will be interpreted in accordance with and governed by the laws of New Zealand and the New Zealand Courts will have exclusive jurisdiction over any dispute in relation to the Goods.
Peter Gower NZ Limited Terms and Conditions of Trade v6.0