ELITE HARDWARE (2019) LIMITED TERMS AND CONDITIONS (“these Terms”)
- These Terms, together with any agreed terms specified in a job order or quote, form a legally binding contract for, and shall apply in all instances to, the sale of Goods and the provision of Services between ELITE HARDWARE (2019) LIMITED (“the Company”) and the person purchasing the Goods and/or requesting the Services (“the Customer”) (“this Contract”).
- Goods means any and all goods including kitchen handles, wardrobe and utilities fittings and related products supplied by the Company to the Customer from time to time including goods described on any invoice or other form provided by the Company to the Customer (“Goods”);
- Services means any and all services supplied by the Company to the Customer including any advice or recommendations given regarding the Goods, their installation or application (“Services”).
- The Company reserves the right to change these Terms at any time and will make reasonable endeavours to provide the Customer with any amendments to these Terms. Regardless of whether the Customer receives the amended Terms, they shall apply with effect from the date they are amended.
- The Customer is deemed to have accepted these Terms when an order is placed by the Customer for the supply of Goods by the Company. These Terms are binding on the Customer and may only be altered or amended by the Customer by way of written agreement between the Company and the Customer.
- The Customer expressly acknowledges and agrees that the Company supplies the Goods to the Customer on these Terms only and not on these terms stated on any other form given to the Company by the Customer.
- Where the Customer is more than one person, including any person stated as Guarantor on an Account Application Form, each person will be jointly and individually liable for the debts of the Customer to the Company.
- Where the Customer is a company or trust, the director(s) or trustee(s) as the case may be of the Customer (and where the Customer is any other entity, the person stated as Guarantor) personally guarantee the obligations of the Customer for any payment due by the Customer to the Company as a principal debtor and in consideration for the Company supplying Goods and/or Services to the Customer.
- The Price stated on the Company’s website, on any quotation or in any invoice is in New Zealand dollars and includes GST.
- Where a quotation is given by the Company, unless otherwise agreed, the quotation shall be valid for thirty (30) days from the date of issue.
- The Company reserves the right to alter the Price in any quotation or invoice to take account of any variations in the cost of Goods which are beyond the reasonable control of the Company and which increase the cost of Goods.
- Where applicable, the cost of freight will be added onto the sale when an order is made.
- Confirmation times will vary depending on the method of payment used.
- The Company shall issue an invoice to the Customer stating the Price. The Customer shall pay the Price pursuant to the invoice.
- The Company may require the Customer to pay a deposit. The amount of any deposit will be specified in any quotation or invoice issued by the Company and will be due and payable immediately on acceptance by the Customer.
- Time for payment is of the essence and will be specified on the quotation or invoice issued by the Company. It no time is stated, payment is due seven (7) days following the date of the invoice.
- The Company may, at its discretion, allow approved Customers to make payment on the 20th of the month following the date on which an invoice is issued to the Customer or by agreed regular instalment amounts.
- The Company reserves the right to apply payments received in any manner the Company determines.
- Without prejudice to the Company’s other remedies under this Contract, at law or otherwise, if the Customer defaults on any payment, the Customer must (if requested by the Company) pay default interest at the rate of 2.5% per month payable on a daily basis from the due date.
- The Customer will be liable for all debt collection and other expenses incurred by the Company as a result of the Customer’s default.
- The Customer must make all payments due under this Contract (time being of the essence) without set-off or deduction of any kind.
- The Customer indemnifies the Company against, and shall pay to the Company upon demand, any cost (including legal costs), claim, damage, expense or liability suffered or incurred by the Company whether arising directly or indirectly from the Company acting to recover any monies payable by the Customer pursuant to this Contract, or otherwise in connection with the exercise or attempted exercise of any of its rights or remedies under this Contract.
- The Company reserves the right to refuse to provide any further Goods if the Customer has any overdue account with the Company.
- The name that will appear on the Customer’s statements is Elite Hardware (2019) Limited unless the Company advises the Customer otherwise.
The Company may terminate this Contract by notice with immediate effect if:
- the Customer fails to comply with any term of this Contract or any other agreement with the Company; or
- any step is taken to appoint a receiver, manager, trustee in administration, liquidator, provisional liquidator, statutory manager, administrator or other like person of the whole or any part of the Customer’s assets or business.
- Notwithstanding clause 5.1, the Company may terminate this Contract at any time without reason by giving the Customer 48 hours’ written notice.
- Upon termination of this Contract under clauses 5.1 or 2, the Customer shall forthwith pay to the Company all moneys due to the Company at the date of termination.
- Termination of this Contract by the Company is without prejudice to any rights that the Company may have under this Contract.
- The Company may terminate this Contract by notice with immediate effect if:
- The Company may at any time assign its rights or interest, or any part thereof, (whether absolutely, or by way of security) or transfer its obligations or any part thereof, to any person.
- By viewing the Company’s website, and by placing an order on the website, the Customer is deemed to have accepted these Terms.
- Whilst the Company endeavours to supply correct and accurate information on its website at all times, mistakes, errors or omissions may occur. The Company takes no responsibility for any loss or damage, direct or indirect, resulting from the use or application of information contained on its website.
Products are subject to change. All measurements on the website are in millimetres unless otherwise stated.
Warranty by the Company
- Subject to the warranty in clause 8.6, and other than any warranty expressly required at law, no warranty, condition or guarantee either express or implied is given by the Company as to the quality, state or condition of any Goods or as to their appearance, content or fitness for any particular purpose except that same shall conform to good practices. The Customer acknowledges that it has relied on its own judgment in purchasing the Goods and/or Services.
- Nothing in this Contract affects the Customer’s rights under the Consumer Guarantees Act 1993. If the Customer is acquiring or receiving the Goods and/or Services for the purposes of a business, the provisions of the Consumer Guarantees Act 1993 do not apply.
- In the case of Goods not manufactured by the Company, any warranty shall be the current warranty provided by the manufacturer of the Goods. The Company will not be liable for anything other than the express conditions specified in the manufacturer’s warranty.
- If the Company breaches these Terms, the remedies of the Customer shall, at the option of the Company, be limited to repair or replacement of the Goods. Under no circumstances shall the liability of the Company exceed the Price of the Goods.
- The Company accepts no responsibility or financial liability should it be unable to supply the Goods and/or the Services ordered for any reason.
- The Company shall provide a 12 month warranty to the Customer (but not to any other person) for the Goods from the date of invoice. If the Customer believes that the Goods are defective, it shall immediately notify the Company. The Company shall, acting reasonably, determine whether the Goods are defective. In the event that the Company accepts that the Goods are defective, replacements shall be provided to the Customer at no additional charge. This warranty is a warranty of replacement only and does not extend to the removal of defective product or installation of new product. In the event of defective Goods being obsolete, unavailable or discontinued, the Company reserves the right to replace the defective Goods with a current offering. No guarantee of interchangeability is offered. Any claim covered by this warranty must be submitted in writing to firstname.lastname@example.org along with proof of purchase (invoice) and full details of the defect (including photos) with supporting documentation.
- The warranty in clause 8.6 does not cover the following:
- Goods that have been installed incorrectly, exposed to unusual environmental conditions, abused or used in any manner other than their intended purpose;
- Damage from adverse effects of water and or cleaning agents and wear and tear;
- Damage to handles supplied by the Company not cared for by the Customer, or by any other person, in accordance with the instructions in the Handle Care document, a copy of which the Customer hereby acknowledges receipt of;
- Any consequential or incidental damages incurred as a result of incorrect installation; and
- Alleged defects that are within acceptable industry standards. The Company shall, acting reasonably, determine what are acceptable industry standards.
Acceptance of Goods
- After purchasing the Goods, the Customer must check that it has the correct size and finish. The Company will not be held responsible for incorrect hole drilling and fitting.
Return of Goods
- A Customer who wishes to return Goods they have purchased may do so within 14 days of the date of the invoice (or, in the case of a Customer who has a credit account with the Company, 90 days from the date of the invoice) and in such circumstances shall be entitled to a full refund provided that the Company is satisfied, in its sole and absolute discretion, that such Goods are still in a saleable condition or that there is a fault with the Goods. Where Goods are being returned due to a fault, the Customer must not damage the Goods any further.
- Any delivery costs relating to the return of Goods shall be paid by the Customer, including return delivery to the Customer, provided that if a return is due to a shipping mistake, fault or damage to Goods, such costs will be incurred by the Company and will be refunded to the Customer upon receipt of a suitable invoice/receipt showing delivery costs.
Limitation of Liability
- In entering into this Contract, the Customer acknowledges that the Company has no liability to the Customer for any direct or indirect or consequential loss or damage or for any loss of profit (or any other form of economic loss) arising in connection with this Contract (whether in contract or in tort) including that resulting from the negligence of the Company, or arising by operation of law.
- Subject to the exclusion of liability in clause 1 above, the maximum aggregate liability of the Company for all claims made by the Customer, whether as a result of any breach of this Contract or on any other grounds or terms whatsoever (including liability as a result of tort, including negligence) will not exceed the total amount paid by the Customer to the Company pursuant to this Contract.
Delivery of the Goods and/ or Services to the Customer will occur, at the discretion of the Company, when the Customer:
- Takes possession of the Goods and/or Services at the Company’s address; or
- Takes possession of the Goods and/or Services at the Customer’s nominated address.
- The Customer must make all arrangements necessary to take delivery of the Goods and/or Services when they are tendered for delivery, failing which, delivery will be deemed to have been made to the Customer at the Company’s address.
- Where the Customer directs the Company to transfer the Goods to a carrier specified by the Customer, the carrier shall be deemed to be the Customer’s agent and the costs of carriage and any insurance which the Company reasonably incurs shall be reimbursed by the Customer (without any set-off or deduction) on the date for payment of the Price.
- 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 Contract. The Company shall not be liable for any delay in delivery by a third party to the Customer.
- The Company may deliver the Goods by separate instalments (in accordance with any agreed delivery terms). Each separate instalment shall be invoiced and paid for in accordance with these Terms.
- The Company shall not be liable for loss or damage of any kind due to the failure of the Company to deliver the Goods, promptly or at all, where such failure is due to circumstances beyond the control of the Company.
- The time agreed for delivery shall not be an essential term of this Contract unless the Customer gives written notice to the Company making time of the essence. Any failure by the Company to deliver the Goods shall not entitle the Customer to treat this Contract as at an end.
- Delivery of the Goods and/ or Services to the Customer will occur, at the discretion of the Company, when the Customer:
Risk and Ownership
- Use of the Company’s Goods and/or Services is at the Customer’s own risk.
- The Customer acknowledges that all risk in the Goods passes to the Customer on delivery regardless of whether or not the Company retains ownership of the Goods.
- The Customer undertakes to insure the Goods for their full insurable value when it assumes risk under these Terms, and to hold the insurance policy in trust for the Company until all money owing to the Company by the Customer has been paid to the Company.
- If any Goods are damaged or destroyed after delivery to the Customer, but before ownership passes to the Customer, the Company will be entitled to receive all insurance proceeds payable in respect of the Goods. This applies whether or not the Price has become payable under these Terms. The production of these Terms will be sufficient evidence of the Company’s rights to receive insurance proceeds without the need for any person dealing with the Company to make further enquiries.
- The Customer shall care for handles supplied by the Company in accordance with the instructions in the Handle Care document, a copy of which the Customer hereby acknowledges receipt of. The Customer shall also advise any customer of theirs who receives such handles that the handles must be cared for in accordance with the instructions in the Handle Care document.
Title or Ownership
The Customer and the Company agree that ownership of the Goods does not pass to the Customer until:
- All amounts owing by the Customer to the Company have been paid in full; and
- The Customer has satisfied all its other obligations to the Company in respect of all agreements between the Company and the Customer
- The Customer agrees that until the Company shall have received payment and all other obligations of the Customer are satisfied, the Goods, or any proceeds of the sale of the Goods, shall be kept separate.
- Where the Company receives payment from the Customer in any form other than cash, the form of payment tendered by the Customer will not be deemed to be payment in full until it has been cleared, honoured or recognised and until then the Company’s ownership in the Goods will continue.
- Until such time as ownership of the Goods passes from the Company to the Customer, the Company may give notice in writing to the Customer to return the Goods to the Company. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease.
- If the Customer fails to return the Goods to the Company then the Customer irrevocably authorises the Company to enter upon and into any land or premises where the Goods are situated and/or Services performed and take possession of the Goods whether or not such Goods are fixed to or incorporated into any building or structure erected on the land without being responsible for any loss or damage caused by taking such possession.
- Where the Company retains possession or control of the Goods, payment of the Price is due to the Company, the Company has made demand in writing of the Customer for payment of the Price and the Company has not received the Price of the Goods, then, regardless of whether title in the Goods has passed to the Customer or remains with the Company, the Company may dispose of the Goods and may claim from the Customer any loss incurred (including any costs) by the Company on such disposal.
- The Customer and the Company agree that ownership of the Goods does not pass to the Customer until:
- The Customer warrants that all designs or instructions to the Company will not cause the Company to infringe any patent, registered design or trademark in the execution of the Customer’s order.
Personal Property Securities Act 1999 (“PPSA”)
Upon acceptance of these Terms as provided above the Customer acknowledges and agrees that:
- These Terms constitute a security agreement for the purposes of the PPSA; and
- For so long as the parties carry on business together, the Company takes a security interest in all Goods which have been supplied to the Customer and all Goods that will be supplied to the Customer in the future.
The Customer undertakes:
- To sign any documents and provide such complete, accurate and up-to-date information which the Company reasonably requires to register a financing statement or financing change statement on the Personal Property Securities Register; and
- To indemnify the Company for all expenses incurred in registering a financial statement or financing change statement on the Personal Property Securities Register, or in releasing any Goods charged thereby; and
- Not to register a financing change statement or a change demand without the prior written consent of the Company; and
- To give the Company not less than fourteen (14) days prior written notice of any proposed change in the Customer’s name or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address or business practice); and
- To immediately advise the Company of any material change in its business practices for selling the Goods which may result in a change in the nature of proceeds derived from such sales.
- The Company and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms.
- The Customer agrees to waive its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
- Unless otherwise agreed in writing by the Company, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
- The Customer unconditionally ratifies any actions taken by the Company under clauses 16.1 to 16.5.
- Upon acceptance of these Terms as provided above the Customer acknowledges and agrees that:
Privacy Act 1993
- If the Customer is an individual, this clause 1 applies. The Company requires personal information and will collect and hold personal information about the Customer, principally for the purpose of evaluating the request for Goods and/or Services by the Customer. The Customer can access and seek correction of any personal information by contacting the Company. The Customer authorises the disclosure of personal information held by any other party regarding any previous contracts entered into by the Customer. The Customer agrees to the Company releasing to other parties’ information regarding this Contract if the Customer does not comply with its obligations.
- If the parties are unable to resolve any question, dispute or difference arising under this Contract by discussion and negotiation, the dispute must be submitted to the arbitration of a single arbitrator agreed on by the parties or in default of agreement, to be nominated by the president of the New Zealand Law Society provided however that the Company has the right to refer any dispute to the Disputes Tribunal for determination in which case the total amount in respect of which an order of the Tribunal is sought will not exceed $30,000.
- Headings are inserted for convenience and shall not affect the construction of this Contract. The singular includes the plural and vice versa. Persons include incorporated and unincorporated entities. A reference to a clause or sub clause is a reference to a clause or sub clause hereof. A reference to Company includes its servants, agents, successors and assigns. The word “including” does not imply limitation.
- This Contract is governed by the laws of New Zealand. The parties agree to submit to the non-exclusive jurisdiction of the Courts of New Zealand. If at any time any provision of this Contract is or becomes illegal, invalid or unenforceable in any respect under the law of New Zealand, that will not affect or impair the legality, validity or enforceability of any other provision of this Contract.
- Notices shall be properly served on a person if delivered by hand or left at or posted in any prepaid letter addressed to that person at either the job address or any other address of the Customer specified in this Contract. Service by post shall be deemed to be effected on the second day after the date on which the notice was posted.