Terms and conditions


In these terms and conditions, “we” “us” and “our” refers to AC Solar Warehouse Ltd and related bodies corporate. Your access to and use of all information on this website including purchase of our product/s is provided subject to the following terms and conditions.

We reserve the right to amend this Notice at any time and your use of the website following any amendments will represent your agreement to be bound by these terms and conditions as amended. We therefore recommend that each time you access our website you read these terms and conditions.

 

 

Our Website Services​

  1. Our services are provided to adults over the age of eighteen (18) years. By proceeding to purchase, you acknowledge that you are over 18 years of age.
  2. All prices are in New Zealand Dollars (NZD) and are exclusive of GST. We endeavour to ensure that our price list is current. Our price list changes regularly so please contact us to obtain the latest price list.  We reserve the right to amend our prices at any time. If you have placed an order, we reserve the right to cancel your order should our prices change.

 

Product Descriptions

  1. We strive to ensure that our products are described as accurately as possible on our website, however we do not warrant that the description is accurate. Where we become aware of any misdescription, we reserve the right to correct any error or omission.
  2. Images have been provided for illustrative purposes only and we do not guarantee that any image will reproduce in true colour nor that any given image will reflect or portray the full design or options relating to that product.

 

Product Orders

  1. Our products are for sale to adults over the age of eighteen (18) years. By proceeding to purchase through our website, you acknowledge that you are over 18 years of age.
  2. We endeavour to ensure that our product list is current however we give no undertaking as to the availability of any product advertised on our website.
  3. All prices are in New Zealand Dollars (NZD) and are exclusive of GST. Our price list can be accessed by contacting us and we reserve the right to amend our prices at any time.
  4. Packaging and postage is an additional charge, calculated at time of purchase.
  5. When you order from us, we require you to provide your name, address for delivery, your email address, telephone contact and credit card details. We undertake to take due care with this information; however, in providing us with such information you accept that we are not liable for its misuse due to error in transmission or virus or malware.
  6. We undertake to accept or reject your order within Seven (7) days. If we have not responded to you within Seven (7) days, your offer is deemed to be rejected. We are not required to give reasons for rejecting your offer to purchase however the most likely reason for rejecting your offer will be that we do not currently have that product in stock.
  7. Delivery of your ordered product/s will be as set out on our website. Title in the goods passes to you when we have received payment. Our terms of payment are set out on the order page.
  8. All risk of loss or damage to the goods passes to you when we despatch the goods.

 

Order Cancellation Due To Error

  1. Where a product has been listed at the incorrect price or with incorrect descriptive information or image due to typographical error or similar oversight, we reserve the right to cancel a transaction. Where your credit card has been charged, we will immediately refund your credit card for the total amount debited.

 

Product Returns

  1. We undertake to replace you for any product delivered to you that is faulty or is in a damaged condition. If you wish to return a faulty or damaged product, you must notify us through our designated “contact us” webpage where we set out our requirements relating to return of such goods.
  2. If we are unable at the time of return to replace or exchange returned goods, we undertake to reimburse your credit card for the amount initially debited for the purchase including packaging and postage charges.

 

Site Access

  1. When you visit our website, we give you a limited licence to access and use our information for personal use.
  2. You are permitted to download a copy of the information on this website to your computer for your personal use only provided that you do not delete or change any copyright symbol, trademark or other proprietary notice. Your use of our content in any other way infringes our intellectual property rights.
  3. Except as permitted under the Copyright Act 1994, you are not permitted to copy, reproduce, republish, distribute, or display any of the information on this website without our prior written permission.
  4. The licence to access and use the information on our website does not include the right to use any data mining robots or other extraction tools. The licence also does not permit you to metatag or mirror our website without our prior written permission. We reserve the right to serve you with notice if we become aware of your metatag or mirroring of our website.

 

Hyperlinks

  1. This website may from time to time contain hyperlinks to other websites. Such links are provided for convenience only and we take no responsibility for the content and maintenance of or privacy compliance by any linked website. Any hyperlink on our website to another website does not imply our endorsement, support, or sponsorship of the operator of that website nor of the information and/or products which they provide.
  2. You may link our website without our consent. Any such linking will be entirely your responsibility and at your expense. By linking, you must not alter any of our website’s contents including any intellectual property notices and you must not frame or reformat any of our pages, files, images, text or other materials.

 

Intellectual Property Rights

  1. The copyright to all content on this website including applets, graphics, images, layouts, and text belongs to us or we have a licence to use those materials.
  2. All trademarks, brands and logos generally identified either with the symbols TM or ® which are used on this website are either owned by us or we have a licence to use them. Your access to our website does not license you to use those marks in any commercial way without our prior written permission.
  3. Any comment, feedback, idea or suggestion (called “Comments”) which you provide to us through this website becomes our property. If in future we use your Comments in promoting our website or in any other way, we will not be liable for any similarities which may appear from such use. Furthermore, you agree that we are entitled to use your Comments for any commercial or non-commercial purpose without compensation to you or to any other person who has transmitted your Comments.
  4. If you provide us with Comments, you acknowledge that you are responsible for the content of such material including its legality, originality and copyright.

 

Disclaimers

  1. Whilst we have taken all due care in providing the information on our website, we do not provide any warranty either express or implied including without limitation warranties of title or implied warranties of merchantability or fitness for a particular purpose.
  2. To the extent permitted by law, any condition or warranty which would otherwise be implied into these terms and conditions is excluded.
  3. We also take all due care in ensuring that our website is free of any virus, worm, Trojan horse and/or malware, however we are not responsible for any damage to your computer system which arises in connection with your use of our website or any linked website.
  4. From time to time we may host third party content on our website such as advertisements and endorsements belonging to other traders. Responsibility for the content of such material rests with the owners of that material and we are not responsible for any errors or omissions in such material.

 

Statutory Guarantees and Warranties to Consumers

1.    We (Supplier) make no representations and give no assurance, condition or warranty of any kind to the customer/buyer (including any assurance, condition or warranty implied by law to the extent that such assurance, condition or warranty can be excluded) in relation to the Goods and accepts no liability for any assurance, condition, warranty, representation, statement or term not expressly set out in these conditions of sale or other writing given by the Supplier to the Customer. The Customer specifically acknowledges that it is acquiring the Goods for business purposes and that the provisions of the Consumer Guarantees Act 1993 are excluded.

 

Limitation of Liability

  1. If you are not a consumer within the meaning of the Consumer Guarantees Act 1993 then this clause applies to you. If you are a consumer within the meaning of the Consumer Guarantees Act 1993 then this clause has no effect whatsoever to in any way limit our liability or your rights. If you are not a consumer:-
    1. To the full extent permitted by law, our liability for breach of an implied warranty or condition is limited to the supply of the services again or payment of the costs of having those services supplied again.
    2. We accept no liability for any loss whatsoever including consequential loss suffered by you arising from services we have supplied.
    3. We do not accept liability for anything contained in the post of a user or in any form of communication which originates with a user and not with Us.
    4. We do not participate in any way in the transactions between our users.

 

Indemnity

  1. By accessing our website, you agree to indemnify and hold us harmless from all claims, actions, damages, costs and expenses including legal fees arising from or in connection with your use of our website.

 

Force Majeure

  1. If a Force Majeure event causing delay continues for more than Thirty (30) days, we may terminate this Agreement by giving at least Seven (7) days Notice to you. “Force Majeure” means any act, circumstance, or omission over which we could not reasonably have exercised control.

 

Jurisdiction

  1. These terms and conditions are to be governed by and construed in accordance with the laws of New Zealand and any claim made by either party against the other which in any way arises out of these terms and conditions will be heard in New Zealand and you agree to submit to the jurisdiction of those Courts.
  2. If any provision in these terms and conditions is invalid under any law the provision will be limited, narrowed, construed, or altered as necessary to render it valid but only to the extent necessary to achieve such validity. If necessary, the invalid provision will be deleted from these terms and conditions and the remaining provisions will remain in full force and effect.

 

Privacy

  1. We undertake to take all due care with any information which you may provide to us when accessing our website. However we do not warrant and cannot ensure the security of any information which you may provide to us. Information you transmit to us is entirely at your own risk although we undertake to take reasonable steps to preserve such information in a secure manner.
  2. Our compliance with privacy legislation is set out in our separate Privacy Policy which may be accessed from our home page.

 


Standard terms and conditions of sale


 

Introduction

1.     AC Solar Warehouse Ltd and related bodies corporate (jointly and severally, Supplier) may, at any time, vary the terms and conditions of trade in accordance with the provisions of this agreement.

2.     These terms and conditions will apply to any purchase of goods by a customer (Customer) including any purchase of goods or order for services requested through any of the Supplier’s websites, in person, by telephone or other means.

 

Payment terms

3.     Subject to clause 4, the terms of payment are strictly fourteen (14) days from the date of invoice (or such other period as nominated by the Supplier herein). The Supplier may, at any time, vary the terms and conditions of trade in accordance with the provisions of this Agreement.

4.     Where the Customer does not have an approved commercial credit account with the Supplier, payment shall be, at the Supplier’s discretion, due and payable:

(a)   on or prior to delivery of the goods; or

(b)   by the date nominated by the Supplier’s invoice(s).

5.     Prices do not include delivery charges except where there is an agreement between the parties that it is included, or unless otherwise specified in writing. The Customer will be made aware of any delivery charges when it places an order. Any delivery charges payable by the Customer will be shown as a separate amount on the tax invoice provided to the Customer.

6.     The Customer must check all invoices and advise the Supplier of any errors or omissions within seven (7) days of receipt. Failing advice from the Customer that the invoice contains any errors or omissions, the invoice may be deemed accepted by the Supplier.

7.     Should the Customer not pay for the goods or services supplied by the Supplier in accordance with the credit terms as provided herein, or as agreed in writing by the Supplier and Customer from time to time, after issuing a written demand to the Customer demanding payment within fourteen (14) days, the Supplier will be entitled to charge an administration fee of ten (10) percent of the amount of the invoice payable.

8.     The Customer acknowledges that the Supplier shall be at liberty to charge a surcharge for credit card transactions equal to the merchant fees incurred by the Supplier.

 

Purpose of credit

9.     The Customer acknowledges and agrees that any credit to be provided to the Customer by the Supplier is to be applied wholly or predominantly for commercial purposes.

 

Formation of contract

10.   Quotations shall remain valid for a period of fourteen (14) days from the date of quotation, unless otherwise specified in writing. The Supplier, in its sole discretion, reserves the right to withdraw, vary or extend any quotation at any time prior to the formation of a contract in accordance with clause 11.

11.   Quotations made by the Supplier will not be construed as an offer or obligation to supply in accordance with the quotation. The Supplier reserves the right to accept or reject, at its discretion, in whole or in part, any offer to purchase received by it upon provision of written reasons to the Customer. Only written acceptance by the Supplier of the Customer’s offer will complete a contract.

12.   The agreement between the Supplier and the Customer for the supply of goods commences on the date that the Supplier agrees to supply the goods ordered by the Customer. This will not necessarily be at the time the order is initially received by the Supplier.

13.   Placement of an order, either verbally or in writing, will imply acceptance of the Supplier’s offer and of these terms and conditions.

14.   At the Supplier’s sole discretion, a deposit may be required. The deposit amount or percentage of the price due will be stipulated at the time of the order of the goods and/or services and shall immediately become due and payable upon the formation of a contract in accordance with clause 11. The Supplier will apply the deposit to the invoice and the Customer acknowledges and agrees that it will make payment of the balance in accordance with these terms and conditions.

 

Variations

15.   Where the Customer requests or directs that any additional goods and/or services be supplied that are not strictly in accordance with the quotation, then such additional goods and/or services shall constitute a variation, unless otherwise agreed between the parties.

16.   The Customer understands and agrees that:

    • all variations must be agreed between the parties in writing prior to the goods and/or services being supplied;
    • all variations shall be, at the Supplier’s discretion, invoiced at the rate(s) specified in the quotation, as specifically quoted, or in accordance with the Supplier’s current prevailing rates (as amended from time to time).

17.   Notwithstanding clauses 15 and 16, and subject to any rights the Customer might have under any relevant legislation, the Supplier reserves the right to vary the quoted price if:

    • there is any movement in the cost of supplying the goods and/or services specified in the Customer’s order;
    • the goods and/or services specified in the Customer’s order are varied from the goods and/or services specified in the Supplier’s quotation; or
    • otherwise provided for in these terms and conditions.

 

Cancellation of orders

18.   Unless otherwise agreed in writing between the parties, the Customer may not cancel an order (or any part of an order) unless the Customer pays to the Supplier (in the Supplier’s sole discretion) any and all costs incurred by the Supplier in relation to the cancelled order (or cancelled part of an order), up until and including the date of cancellation.

19.   Notwithstanding any other rights the Supplier may have under this agreement, the Supplier may cancel any order or delivery of any order, by providing written notice to the Customer if the Customer:

    • defaults in payment of any invoice by the due date;
    • enters into liquidation or, in the case the Customer is an individual, becomes bankrupt; or
    • breaches an essential term of this agreement.

20.   To the fullest extent permitted by law, the Supplier accepts no liability for any loss whatsoever incurred by the Customer or any third party as a result of the Supplier exercising its rights under clause 19.

 

Delivery

21.   The mode of transport which is used to deliver the goods to the Customer will be at the Supplier’s option unless the Customer requests a particular method of transport.

22.   The Supplier may:

(a)   make the goods ordered by the Customer available for collection at the Supplier’s premises; or

(b)   deliver the goods ordered by the Customer to the Customer’s premises or a site nominated by the Customer; or

(c)    arrange for a cartage contractor to deliver the goods ordered by the Customer to the Customer’s premises or to a site nominated by the Customer.

23.   The Customer shall be liable for all costs associated with delivery, including freight, insurance, and any and all other charges and/or expenses incurred by the Supplier, unless otherwise agreed in writing.

24.   The Customer acknowledges and accepts that any estimated delivery or supply of goods provided by the Supplier is an estimate only and the Supplier will not be liable for any loss suffered by the Customer as a result of any delay in the delivery of goods or non-delivery of the goods.

25.   The Supplier will have the right to extend the estimated delivery or collection date for such period as is reasonably necessary. If it is necessary for the Supplier to make such an extension, the Customer must accept and pay for the goods notwithstanding the delay in their delivery or collection.

26.   Delivery will be made within normal business hours between Monday to Friday, 8.00am to 5.00pm only (unless otherwise agreed to in writing).

27.   Delivery is deemed to occur at the earlier of:

    • the collection of goods from the Supplier by the Customer or any third party on behalf of the Customer;
    • the time the goods are delivered to the Customer’s nominated address for delivery.

28.   The Supplier is entitled to charge a reasonable fee for storage and/or redelivery charges in the event the Customer does not, or is unable to, accept delivery of the goods.

29.   The Customer accepts that the Supplier may deliver goods by instalments and require payment for each separate instalment in accordance with these terms and conditions.

30.   The Customer acknowledges and accepts that it is not relieved from any obligation arising under these terms and conditions by reason of any delay in delivery.

31.   The Supplier may vary delivery details upon provision of 48 hours’ written notice to the Customer.

32.   In the event that the Customer’s premises are unattended when the Supplier or a cartage operator delivers the goods, the signature of the person who delivers the goods on the delivery docket shall be prima facie evidence that the goods were delivered.

 

Returns

33.  The Customer must inspect the goods immediately upon delivery and must within two (2) days after the date of inspection give written notice to the Supplier with particulars of any claim that the goods do not accord with those ordered by the Customer. Further, the Customer must, upon request from the Supplier, allow the Supplier to enter upon any premises occupied by the Customer to inspect the goods that are subject of the claim. If the Customer fails to give notice or refuses to allow the Supplier to inspect the goods, then to the extent permitted by law, the goods must be treated as having been accepted by the Customer and the Customer must pay for the goods in accordance with these terms and conditions.

34.  The Customer cannot return goods to the Supplier without the written agreement of the Supplier, and the Supplier may accept return of the goods in the Supplier’s sole discretion on the following basis:

(a)   the goods are in the same condition that they were purchased in and able to be resold;

(b)   the Customer agrees to pay any expenses relating to the return of goods to the Supplier’s warehouse (if applicable); and

(c)    a restocking fee of twenty (20) percent of the order amount or as otherwise agreed to in writing by the parties (other than a return due to a default by the Supplier under this agreement or as otherwise permitted by law).

35.   Unless otherwise agreed in writing between the parties, the Customer must pay all costs associated with the return of any goods (either to the Supplier or from the Supplier to the Customer or any third party) including freight, insurance, handling and other charges. The Supplier accepts no liability for any damage that occurs to any goods in return transit.

 

Risk

36.   Risk of damage to or loss of the goods passes to the Customer on delivery and the Customer must insure the goods on or before delivery.

37.   If any of the goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Supplier is entitled to receive all insurance proceeds payable for the goods to the extent of the indebtedness of the Customer to the Supplier. The production of these terms and conditions by the Supplier is sufficient evidence of the Supplier’s rights to receive the insurance proceeds without the need for any person dealing with the Supplier to make further enquires.

38.   If the Customer requests that goods are delivered either to an unattended location, left outside, or are left outside the Supplier’s premises for collection, the Customer acknowledges that the Supplier will deliver the goods as requested at the Customer’s risk.

 

Retention of title

39.   Until such time as the Customer has made payment in full for the goods and until such time as the Customer has made payment in full of all other money owing by the Customer to the Supplier (whether in respect of money payable under a specific contract or on any other account whatsoever):

(a)   title in the goods does not pass to the Customer;

(b)   the Customer agrees that property and title in the goods will not pass to the Customer and the Supplier retains the legal and equitable title in those goods supplied and not yet sold;

(c)    the Customer will hold the goods in a fiduciary capacity for the Supplier and agrees to store the goods in such a manner that they can be identified as the property of the Supplier, and will not mix the goods with other similar goods; and

(d)   the Customer will be entitled to sell the goods in the ordinary course of its business but will sell as agent and bailee for the Supplier and the proceeds of sale of the goods will be held by the Customer on trust for the Supplier absolutely.

40.   The Customer’s indebtedness to the Supplier, whether in full or in part, will not be discharged by the operation of clause 39(d) hereof unless and until the funds held on trust are remitted to the Supplier.

41.   The Customer agrees that whilst property and title in the goods remains with the Supplier, the Supplier has the right, with prior notice to the Customer, to enter upon any premises occupied by the Customer (or any receiver, receiver and manager, administrator, liquidator or trustee in bankruptcy of the Customer) to inspect the goods of the Supplier and to repossess the goods which may be in the Customer’s possession, custody or control when payment is overdue.

42.   The Customer will be responsible for the Supplier’s reasonable costs and expenses in exercising its rights under clause 41 where the Customer is otherwise in default of the terms of this agreement. Where the Supplier exercises any power to enter the premises, that entry will not give rise to any action of trespass or similar action on the part of the Customer against the Supplier, its employees, servants or agents.

43.   The Customer agrees that where the goods have been retaken into the possession of the Supplier, the Supplier has the absolute right to sell or deal with the goods, and if necessary, sell the goods with the trademark or name of the Customer on those goods, and the Customer hereby grants an irrevocable licence to the Supplier to do all things necessary to sell the goods bearing the name or trademark of the Customer.

44.   For the avoidance of doubt, the Supplier’s interest constitutes a ‘purchase money security interest’ pursuant to the PPSA.

 

Cancellation of terms of credit

45.   The Supplier reserves the right to withdraw credit at any time upon provision of 48 hours’ written notice.

46.   Notwithstanding clause 45, if the Customer defaults in the payment of any amount due to the Supplier pursuant to this agreement and does not cure such default within seven (7) days after being given notice of such default, the Supplier may terminate this agreement (to be effective immediately) upon notice to the Customer.

47.   Upon the withdrawal of credit in accordance with clause 45, or upon termination of this agreement in accordance with clause 46, all liabilities incurred by the Customer become immediately due and payable to the Supplier.

48.   For the avoidance of doubt, termination of this agreement will not affect:

    • the right of any party to whom money is owed hereunder at the time of termination to receive that money according to the provisions hereof; and
    • the rights and/or obligations pursuant to this agreement which by their nature are intended to survive termination of this agreement.

 

Description of products and samples

49.   All descriptions, specifications, illustrations, drawings, data, dimensions, and weights contained in catalogues, price lists or other advertising matter of the Supplier are approximate only and are only intended by the Supplier to be a general description. The Supplier reserves the right to produce goods with such minor modifications from its drawings and specifications as it sees fit.

50.   The Supplier will not be liable to the Customer for any loss or damage suffered by the Customer as a result of the Customer relying upon any specifications, illustrations, drawings, data, dimensions, weights or the characteristics of any samples.

51.   The Supplier reserves the right to cancel any order by written notice to the Customer in the event of:

(a)   an incorrect price listing on the website;

(b)   the product becoming unavailable;

(c)    incorrect product descriptive or product image listed on the website as a result of typographical or administrative errors.

52.   Within 24 hours of a cancellation pursuant to clause 51, the Supplier will refund the total amount debited to the Customer.

 

Indemnity

53.   The Customer agrees to indemnify the Supplier and keep the Supplier indemnified against any claim that arises out of the goods and services supplied under this agreement to the extent that such a claim is a consequence of a default by the Customer under the terms of this agreement. This indemnity includes any legal fees and expenses the Supplier incurs in order to enforce its rights, on an indemnity basis.

 

Provision of further information

54.   The Customer undertakes to comply with any reasonable written requests by the Supplier to provide further information for the purpose of assessing the Customer’s creditworthiness, including an updated credit application.

55.   If the Customer is a corporation (with the exception of a public listed company), it must advise the Supplier of any alteration to its corporate structure (for example, by changing directors, shareholders, or its constitution). In the case of a change of directors or shareholders the Supplier may ask for its directors to sign a guarantee and indemnity.

 

Corporations

56.   If the Customer is a corporation, the Customer warrants that all of its directors have signed this agreement and acknowledges that all of its directors may be required to enter into a guarantee and indemnity with the Supplier in relation to the Customer’s obligations to the Supplier.

 

Trustee capacity

57.   If the Customer is the trustee of a trust (whether disclosed to the Supplier or not), the Customer warrants to the Supplier that:

    • the Customer enters into this agreement in both its capacity as trustee and in its personal capacity;
    • the Customer has the right to be reasonably indemnified out of trust assets;
    • the Customer has the power under the trust deed to sign this agreement; and
    • the Customer will not retire as trustee of the trust or appoint any new or additional trustee without advising the Supplier and having the new or additional trustee sign an agreement on substantially the same terms as this agreement.

58.   The Customer must give the Supplier a copy of the trust deed upon request.

 

Partnership

59.   If the Customer enters into this agreement in its capacity as a partnership, the Customer warrants that all of the partners have signed this agreement and that all of the partners may be required to enter into a guarantee and indemnity with the Supplier in relation to the Customer’s obligations to the Supplier.

60.   If the Customer is a partnership, it must not alter its partnership (for example, adding or removing partners or altering its partnership agreement) without advising the Supplier. In the case of a change of partners, the Supplier may ask for new guarantors to sign a guarantee and indemnity.

 

Insolvency

61.   If the Customer becomes insolvent, to the extent permitted by law, the Customer remains liable under this agreement for payment of all liabilities incurred hereunder. The Customer remains liable under this agreement even if the Supplier receives a dividend or payment as a result of the Customer being insolvent.

 

Waiver

62.   A waiver of any provision or breach of this agreement by the Supplier must be made by an authorised officer of the Supplier in writing. A waiver of any provision or breach of this agreement by the Customer must be made by the Customer’s authorised officer in writing.

63.   Until ownership of the goods passes, the Customer waives its rights it would otherwise have under the PPSA (unless otherwise agreed to in writing by the Supplier and the Customer. 


Security/charges

64.   The Customer charges in favour of the Supplier all of its estate and interest in any real property, whether held in its own right or as capacity as trustee, the Customer owns at present and in the future with the amount of its indebtedness hereunder until discharged.

65.   The Customer charges in favour of the Supplier all of its estate and interest in any personal property, whether held in its own right or as capacity as trustee, the Customer owns at present and in the future with the amount of its indebtedness hereunder until discharged.

66.   As security for the payment of the amount of its indebtedness to the Supplier from time to time, the Customer irrevocably appoints as its duly constituted attorney the Supplier’s company secretary from time to time to execute in the Customer’s name and as the Customer’s act and deed any real property mortgage, bill of sale or consent to any caveat the Supplier may choose to lodge against real property that the Customer may own in any Land Titles Office in any state or territory of Australia, even though the Customer may not have defaulted in carrying out its obligations hereunder upon written notice and demand to the Customer (in the event that there is no default by the Customer in carrying out its obligations hereunder).

67.   Where the Customer has previously entered into an agreement with the Supplier by which the Customer has granted a charge, mortgage or other security interest (including a security interest as defined in the Personal Property Securities Act 2009 (PPSA)) over or in respect of real or personal property, those charges, mortgages or other security interests and the terms which directly or indirectly create rights, powers or obligations in respect thereto will continue and co-exist with the obligations and security interests created in this agreement and will secure all indebtedness and obligations of the Customer under this agreement. The Supplier may, at its election and upon the provision of written notice, vary the terms of such previous charges, mortgages or other securities to reflect the terms herein.

 

Costs

68.   The Customer must pay for its own legal, accounting and business costs and all costs incurred by the Supplier relating to any default by the Customer under this agreement. The Customer must also pay for all stamp duty and other taxes payable on this agreement (if any).

69.   The Customer will pay the Supplier’s costs and disbursements incurred in pursuing any recovery action, or any other claim or remedy, against the Customer, including collection costs, debt recovery fees and legal costs on an indemnity basis.

70.   Subject to clauses 71 and 72, payments by, or on behalf of, the Customer will be applied by the Supplier as follows.

    • Firstly, in payment of any and all collection costs and legal costs in accordance with clauses 42 and 69.
    • Secondly, in payment of any interest incurred in accordance with clause 75.
    • Thirdly, in payment of the outstanding invoice(s), or part thereof in an order determined by the Supplier in its absolute discretion.

71.   To the extent that payments have been allocated to invoices by the Supplier in its business records, the Supplier may, at its sole and unfettered discretion, allocate and/or retrospectively reallocate payments in any manner whatsoever at the Supplier’s absolute discretion, including in a manner inconsistent with clause 70 herein.

72.   Payments allocated (and/or reallocated) under clauses 70 and/or 71 will be treated as though they were allocated (and/or reallocated) in the manner determined by the Supplier on the date of receipt of payment.

 

Taxes and duty

73.   The Customer must pay GST on any taxable supply made by the Supplier to the Customer under this agreement. The payment of GST is in addition to any other consideration payable by the Customer for a taxable supply.

74.   If as a result of:

    • any legislation becoming applicable to the subject matter of this agreement; or
    • any changes in legislation or its interpretation by a court of competent jurisdiction or by any authority charged with its administration;

the Supplier becomes liable to pay any tax, duty, excise or levy in respect of the amounts received from the Customer, whether before or after the Customer places its order, then the Customer must pay the Supplier these additional amounts on 48 hours’ written demand.

 

Interest rates

75.   The interest rate on any outstanding debts is a fixed rate of ten (10) percent per annum.

 

Set-off

76.   All payments required to be made by the Customer under this agreement will be made free of any set-off, or counterclaim and without deduction or withholding, unless agreed to otherwise by the Supplier and the Customer in writing or as required by law.

77.   Any amount due to the Supplier from time to time may be deducted from any monies which may be or may become payable to the Customer by the Supplier.

 

Limitation of liability

78.   In relation to the supply of goods, to the extent permitted by law, the Supplier’s liability is limited to:

    • replacing the goods or supplying similar goods;
    • repairing the goods;
    • providing the cost for replacing the goods or for acquiring equivalent goods; and
    • providing the cost for having the goods repaired.

79.   In relation to the supply of services, to the extent permitted by law, the Supplier’s liability is limited to:

    • supplying the service again; or
    • providing for the cost of having the services supplied again.

80.   The Supplier is not liable for loss of profit, economic or financial loss, damages, consequential loss, loss of opportunity or benefit, loss of a right or any other indirect loss suffered by the Customer as a result of the goods and/or services supplied under this agreement.

81.   To the extent permitted by law, the Supplier will not be liable for any costs, claims, damages or demands arising from personal injury, death, and/or loss of damage to personal property whatsoever occurring to the Customer, or its agents or employees by reason of:

(a)   the goods or their design, production or processing; or

(b)   the loading and delivery of the goods or any delay in delivery or failure to deliver the goods; or

(c)    any act or omission by the Supplier, its agents or employees;

(d)   any statement or misrepresentation made by an employee or agent of the Supplier.

82.   For the avoidance of doubt, to the extent permitted by law, the Supplier accepts no liability for any representations or technical advice given by its employees or agents in relation to the design, specifications, installation and/or use of the goods.

 

Miscellaneous

83.   The Supplier is not liable for any loss caused to the Customer by reason of strikes, lockouts, fires, riots, war, embargoes, civil commotions, supplier shortages, plant or mechanical breakdown, acts of God or any other activity beyond the Supplier’s control.

84.   The Customer will, at the request of the Supplier, execute documents and do such further acts as may be required for the Supplier to register pursuant to the PPSA the security interest granted by the Customer under the PPSA.

85.   The Customer agrees to accept service of any document required to be served, including any notice under this agreement or the PPSA or any originating process, by prepaid post at any address nominated in this application or any other address later notified to the Supplier by the Customer or the Customer’s authorised representative.

86.   The Customer further agrees that where the Supplier has rights in addition to those under part 4 of the PPSA, those rights will continue to apply.

87.   The Customer irrevocably grants to the Supplier the right to enter upon the Customer’s property or premises, with notice, and without being in any way liable to the Customer or to any third party, if the Supplier has cause to exercise any of its rights under sections 123 and/or 128 of the PPSA, and the Customer shall reasonably indemnify the Supplier from any claims made by any third party as a result of such exercise.

88.   Nothing in this agreement shall be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application in relation to the supply of any goods and/or services pursuant to this agreement of all or any of the provisions the Competition and Consumer Act 2010 or any relevant State or Federal Legislation which by law cannot be excluded, restricted or modified.

 

Severance

89.   If any provision of this agreement is not enforceable in accordance with its terms, other provisions which are self-sustaining are, and continue to be, enforceable in accordance with their terms.

90.   If any part of this agreement is invalid or unenforceable, that part is deleted and the remainder of the agreement remains effective.

 

Variation of agreement

91.   The Customer agrees that these terms and conditions may be varied, added to, or amended by an authorised officer of the Supplier at any time by written notice to the Customer. Subject to clause 92, after fourteen (14) days of receipt of the written notice of the variation(s), the variation(s) will be deemed agreed by the Customer.

92.  If the Customer does not agree with the variation(s) proposed by the Supplier, it must notify the Supplier in writing within fourteen (14) days from receipt of the written notice that the variation(s) is/are not agreed to. The Supplier and/or the Customer will then be at liberty to suspend/withdraw credit facilities until such time as agreement can be reached between the parties regarding the proposed variation(s). Clerical errors (such as spelling mistakes or grammatical errors) may be subject to correction by the Supplier without notification.

93.   Any proposed variation to these terms and conditions by the Customer must be requested in writing. The Supplier may refuse any such request without providing reasons either orally or in writing.

94.   Variations requested by the Customer will only be binding upon the Supplier if they are in writing signed by an authorised officer of the Supplier.

 

Consent to register

95.   The Customer hereby consents to the Supplier recording the details of this agreement on the Personal Property Securities Register and agrees to do all things necessary and reasonably required by the Supplier to effect such registration.

96.   The Customer waives any right or entitlement to receive notice of the registration of any security interest(s) created by this instrument on the Personal Property Securities Register.

 

Jurisdiction

97.   The Customer acknowledges and agrees that this agreement will be governed by the laws of New Zealand, and the laws of the Commonwealth of New Zealand which are in force in New Zealand.

98.   The Customer acknowledges and agrees that any contract for the supply of goods or services between the Supplier and the Customer is formed at the address of the Supplier.

99.   The parties to this agreement submit to the non-exclusive jurisdiction of the courts of New Zealand and the relevant federal courts and courts competent to hear appeals from those courts.

 

Entire agreement

100.   This agreement constitutes the entire agreement between the parties relating in any way to its subject matter, unless agreed to otherwise by the Supplier and the Customer in writing. All previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of this agreement are merged in this agreement and are of no further effect. No oral explanation or information provided by a party to another affects the meaning or interpretation of this agreement or constitutes any collateral agreement, warranty or understanding.

101.   Notwithstanding the preceding paragraph, in circumstances where there is a pre-existing written credit agreement (Original Agreement) between the Customer and the Supplier, these terms and this agreement will constitute a variation of the Original Agreement whereby the terms of the Original Agreement are deleted and replaced with the terms herein, unless the terms of the Original Agreement are otherwise expressly or implicitly preserved by the terms herein in which case they will co-exist with the terms herein, and, to the extent of any inconsistency, these terms will prevail.

102.   For the avoidance of doubt, the Customer understands and agrees that these terms will prevail over, and the Supplier will not be bound by, any conditions (express or implied) added or provided by the Customer, whether in an order or otherwise, unless otherwise agreed in writing by the Supplier

 

Privacy Act

  1. The Customer agrees to the terms of the Privacy Statement pursuant to the Privacy Act 1988 contained in this document.

 

Privacy statement

1.     This privacy statement encompasses consents, notifications and disclosures under or in relation to the Privacy Act 2020.

2.     The terms of this statement operate concurrently with any pre-existing privacy statement, authorisation or notification, whether contained in our credit application, terms and conditions of trade or otherwise, save to the extent of any inconsistency in which case the terms of this privacy statement shall prevail.

3.     For the purpose of this statement, the terms “personal information”, “sensitive information”, “credit eligibility information”, “credit information”, “commercial credit purpose”, “credit guarantee purpose”, “consumer credit purpose”, “credit reporting body”, “credit provider”, “credit reporting information”, “credit reporting code” carry the same meaning as under the Act and the term “Information” means personal information, sensitive information, credit eligibility information, credit reporting information and credit information, both severally and collectively.

4.     The Supplier may collect personal information about the Customer for the Supplier’s primary purposes which include the assessment of a credit application, reviewing existing credit terms, assessing credit worthiness, collecting overdue payments, assessing credit guarantees (current and prospective), internal management purposes, marketing, sales and business development purposes and direct marketing.

5.     The Customer consents to the Supplier collecting, using and disclosing personal information (including sensitive information) for both their primary purposes specified herein and purposes other than the primary purposes, including the purpose of direct marketing.

6.     The Supplier may collect, and may already have collected, Information from the Customer, other credit providers, credit reporting bodies and other third parties for the purposes of its functions and activities including, but not limited to, credit, sales, marketing and administration.   If the Information was not collected by the Supplier it may restrict or impede upon the Supplier trading with, extending credit to, continuing to extend credit to or extending further credit to the Customer and/or Guarantor(s)or their related bodies corporate.

7.     The Supplier may disclose Information to, and about them and the Customer hereby acknowledges that they consent to the disclosure of such information to the Supplier’s employees, subsidiaries, employees, agents and related bodies corporate, past, present or prospective credit providers of the Customer or their related bodies corporate.

8.     A full copy of the Supplier’s privacy policy and credit reporting policy can be obtained from the Supplier’s website (details above) or by making a request in writing directed to the Supplier’s privacy officer. The Supplier’s privacy policy and credit reporting policy contain information about how to access and seek correction of Information, or how to complain about a breach of the Act, APP, code(s) and how the Supplier will deal with any such complaint.

9.     The Customer will be deemed to have acknowledged and accepted the terms of this privacy statement by use of this website.