STANDARD TERMS AND CONDITIONS OF SALE
1. INTERPRETATION
1.1 In these Terms and Conditions of Sale, unless the context indicates otherwise:
“Company” means Applico Ltd, Appliance Works (2015) Ltd, or Jones Family Investments Ltd.
“Contract” means the contract entered into between the Company and the Customer governed by these Terms and Conditions of Sale, (and any amendments to the Terms and Conditions of Sale specified by the Company from time to time), the sales order, the Guarantee and credit application form.
“Contract Price” means the price of the Goods as agreed between the Company and the Customer (GST inclusive), based on the Company's then current price list (which lists prices as GST exclusive), subject to variation in accordance with these Terms and Conditions of Sale.
“Customer” means the Person buying the Goods from the Company or any Person acting on behalf of and with the authority of the Customer.
"Delivery Date" means the date for delivery of the Goods to the Customer as agreed by the parties.
“Goods” means any goods supplied, or to be supplied, by the Company to the Customer from time to time including (but not limited to) all canopies, cooktops / hobs, dishwashers, microwaves, ovens, rangehoods, refrigeration appliances, waste disposers and all other kitchen appliances, all laundry appliances, all BBQs, kitchen sinks and kitchen tops and all accessories, parts and inventory and any other item of the type described in any invoice, quotation, work authorisation, sales order, work commencement form or any other document which shall be deemed to form part of these Terms and Conditions of Sale.
“Goods Returned Authority Form” or ("GRA") means a form submitted to the Company’s by the Customer pursuant to clause 8.2.
"GST" means goods and services tax in terms of the Goods and Services Tax Act 1985, at the rate prevailing from time to time, including any tax levied in substitution for that tax.
"Person" includes a corporation, association, firm, company, partnership or individual.
“PPSA” means the Personal Property Securities Act 1999 (as amended from time to time).
"Security Agreement", "Security Interest", "Verification Statement" and "at risk" have the same meanings given to those terms under the PPSA.
"Termination Event" means the Customer refusing to accept any of the Goods; or a petition for the winding up of the Customer being presented or a resolution for winding up passed or the Customer going into liquidation or the Customer being adjudged bankrupt or committing an act of bankruptcy; or the Customer breaching any term of the Contract; or where the Goods are in the Company's opinion "at risk"; or the Customer making an assignment for the benefit of creditors or entering into a composition, agreement or arrangement with some or all of its creditors; or an extraordinary event occurring or a material change affecting the affairs or financial conditions of the Customer occurring, which event or change gives the Company grounds to conclude that the Customer may not, or may not be able to perform or observe its obligations under the Contract.
“Warehouse” means the location specified by the company at its discretion.
2. PURCHASE AND SALES ORDERS
2.1 The Customer will submit a purchase order to the Company (by fax, email or EDI) specifying the Goods required, the quantity of Goods to be supplied, the required delivery date, the expected price, the place of delivery and the Customer order number. The Customer may also elect (but is not required to) specify the Customer account number in any purchase order.
2.2 Any purchase order (which complies with clause 2.1 above and which has a price based on the Company's then current price list) shall be deemed to be approved by the Company unless the Company notifies the Customer to the contrary within 2 working days of receipt of the purchase order. Once approved and subject to clauses 2.3 and 3.2, the purchase order will be treated as a sales order and will form part of the Contract.
2.3 If, for whatever reason, the Company is unable to deliver the Goods specified in the purchase order, the Company reserves the right to back-order the Goods and deliver the Goods at such time as the Goods become available unless the purchase order is marked "do not back-order".
Notwithstanding clause 2.3, the Company reserves the right to reject any purchase order in its absolute discretion.
3. PAYMENT
3.1 Unless otherwise specified by the Company the Contract Price, will be payable in full without any set off or deduction by the 20th of the month following the date of invoice. Notwithstanding the preceding sentence, the Company may at its sole and absolute discretion require payment of the Contract Price in full without any set off or deduction:
(a) upon delivery of the Goods to the Customer in accordance with clause 4.1;
(b) upon demand being made for the Contract Price by the Company, or
(c) at any other time as may be agreed with the Customer.
3.2 Prices submitted by the Company to the Customer are based upon the known costs of the Goods and are subject to alteration as a result of change of intention on the part of the Customer, increased costs of Goods to the Company, delays and any other causes beyond the Company’s control.
3.3 The Company shall be entitled to charge interest on any amount overdue for payment by the Customer, together, with actual costs (legal or otherwise) incurred by the Company for the enforcement of payment of such overdue amounts. Interest will be charged on overdue accounts at 10% above the Reserve bank official 90 day cash rate (OCR) at the close of business on the date that interest first became payable. Default interest shall be paid on demand.
3.4 Under no circumstances will the Company permit the Customer to withhold any part of the Contract Price for any reason whatsoever, including but not limited to for the purpose of securing any payments which are due to the Customer by any third parties. Under no circumstances will the Company recognise in our trading terms retentions.
3.5 The Company reserves the right to incorporate an additional fee for freight costs for multiple deliveries and any other costs (as notified by the Company from time to time) All such additional costs shall be added to the Contract Price.
3.6 Without prejudice to any other rights or remedies of the Company under these Terms and Conditions of Sale, if an account is overdue for payment, the Company reserves the right to place the overdue account on stop credit / hold until full payment of the overdue account is received. For the avoidance of doubt, the Company will only accept payment directly from the Customer's customer on the understanding that liability for payment remains with the Customer until payment for the Goods has been received by the Company in full.
3.7 The Customer confirms the required delivery date of the goods as per this order. The Company, following full payment may at its discretion enter into an agreement with the Customer to store the Customer’s goods for longer than 60 days. The Company reserves the right to charge for storage costs where the delivery date is greater than 60 days from the formation of the contract. Storage costs charged include the cost of insurance for loss or damage to the Customers goods while held by The Company.
4. DELIVERY
4.1 For the purpose of these Terms and Conditions of Sale “delivery” shall be deemed to occur at the earlier of the following times:
(a) the time at which a consignment note or equivalent document is signed by or on behalf of the Customer at the agreed place of delivery;
(b) the time of collection of the Goods by the Customer or its agent; or
(c) the time one working day after the Customer has been notified that the Goods are ready and available for collection; and "deliver" has a corresponding meaning.
4.2 The Company may, at its discretion, offer a one drop service to the agreed site for delivery of the Goods. Stock placement and removal of rubbish can also be arranged at a cost to the Customer.
4.3 The Goods shall be supplied to the place indicated in the sales order or in the absence of any such indication, to the Customer’s last known address. The Company reserves the right to deliver the Goods by instalments.
5. RISK AND RETENTION OF TITLE
5.1 Ownership and legal and equitable title to the Goods supplied remains with the Company and shall not pass to the Customer (and the Customer shall be a bailee only in respect of such Goods) until the Contract Price and all other amounts owing to the Company are paid in full. If the Goods are sold by the Customer prior to payment then the proceeds of such sale shall be held on trust for the Company and at all times the Customer shall keep such proceeds of sale separate from the Customer’s own money. If the Customer has not received the proceeds of any such sales it shall immediately, upon request by the Company, assign to the Company all rights against the Person to whom it has supplied or sold the Goods.
5.2 Until the Goods are sold by the Customer or ownership and legal and equitable title in the Goods passes to the Customer, the Customer shall:
(a) clearly designate all Goods as the Company’s property and store the Goods in such a way that they are identified as the property of the Company;
(b) keep full and complete records of the physical location of the Goods from time to time and the Company’s ownership of the Goods;
(c) maintain the Goods in good order and condition and preserve the Goods in their present form; and
(d) insure the Goods.
5.3 Notwithstanding that the ownership and legal and equitable title in the Goods shall remain with the Company until payment, risk of any loss, damage or deterioration in respect of the Goods shall pass to the Customer upon delivery. If any of the Goods are damaged, destroyed, lost or stolen prior to ownership passing to the Customer, the Company is entitled, without prejudice to any of its other rights or remedies to receive all insurance proceeds payable in respect of the Goods. This applies whether or not the Contract Price has become payable under these Terms and Conditions of Sale. The production of these Terms and Conditions of Sale by the Company is sufficient evidence of the Company’s rights to receive the insurance proceeds without the need for any Person dealing with the Company to make further enquiries.
5.4 So long as any moneys are owing to the Company by the Customer for any Goods, the Company shall be entitled, at any time, to recover and retake possession of all or any part of any Goods which are the property of the Company and otherwise exercise in relation to any Goods any rights (including but not limited to reselling the Goods as owner) whether as owner and/or unpaid seller or otherwise for such purposes or for the purpose of inspecting the Goods or ensuring due compliance by the Customer with the provisions of the Contract. The Company and its agents are irrevocably authorised to enter any premises of the Customer or any third party for the purposes of exercising its rights under these Terms and Conditions of Sale.
The Customer indemnifies the Company for all costs and claims in respect of its exercise or rights under this clause 5.
6. SECURITY INTEREST
6.1 The Customer acknowledges and agrees that these Terms and Conditions of Sale:
(a) constitute a Security Agreement for the purposes of the PPSA; and
(b) create a Security Interest in all present and after-acquired Goods in favour of the Company and all proceeds from the sale of those Goods.
6.2 The Customer undertakes:
(a) to provide verification of any information relating to the Customer if required by the Company;
(b) to 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 Company may reasonably require to ensure the Security Interest created by these Terms and Conditions of Sale is registered in the Personal Property Securities Register (“PPSR”) and to enable the Company to obtain a perfected first ranking Security Interest in the Goods under the PPSA;
(c) to indemnify, and upon demand, reimburse, the Company for all costs and expenses incurred in registering, maintaining, discharging and/or enforcing the Security Interest created by these Terms and Conditions of Sale;
(d) not to assign, charge, encumber, mortgage, or permit any lien to arise over, or any Security Interest (other than the Company's) to attach to Goods, or permit the Goods to become an accession, without the Company’s written consent; and
(e) not to change its name without giving the Company at least seven days’ prior notice.
6.3 The Customer waives its right to receive a copy of any Verification Statement under the PPSA.
6.4 The Customer agrees, to the fullest extent permitted by law, and in respect of any arrangement between the Company and the Customer:
(a) the Customer shall have no rights under (or by any reference to) sections 114(1)(a), 116, 117(1)(c), 119, 120(2), 121, 125, 126, 127, 129, 131, 132, or 133 of the PPSA;
(b) the provisions of Part 9 of the PPSA which are for the benefit of the Customer or place obligations on the Company shall apply only to the extent that either they are mandatory or the Company agrees to the application; and
(c) where the Company has rights in addition to those in Part 9 of the PPSA those rights shall continue to apply and, in particular, will not be limited by section 109 of the PPSA.
7. LEAD TIMES
7.1 The Company may require up to 12 weeks' confirmation of sales orders to guarantee supply, as Goods ordered may not be in stock.
8. DEFECTIVE GOODS
8.1 The Customer shall inspect the Goods immediately upon delivery and shall, within 24 hours after the Delivery Date (inclusive) ("Acceptance Period") give notice in writing to the Company of any matter or thing by reason whereof the Customer may allege that the Goods are defective and/or not in conformity with the description of the Goods provided on the sales order. All Goods delivered by the Company will be deemed to be accepted by the Customer at the end of the Acceptance Period and the Customer shall not be entitled to bring any claim in respect of the Goods under this clause 8.1 or otherwise.
8.2 Any Goods returned to the Company by the Customer will be accepted by the Company only if:
(a) such Goods are defective and/or do not conform with the description of the Goods provided in the relevant sales order ("Defective Goods");
(b) the Customer gives notice of any claim in relation to the Goods to the Company within 24 hours of delivery of the Defective Goods;
(c) the Customer has obtained a GRA Number prior to return of the Defective Goods, such return to be freight-free paid or otherwise as agreed between the parties, to the Warehouse; and
(d) the Defective Goods are accompanied on return to the Company by documentation quoting the sales order and invoice number under which the Defective Goods were originally supplied and including a completed Goods Returned Authority Form.
8.3 The Goods Returned Authority Form issued to the Customer under clause 8.2 of these Terms and Conditions of Sale shall only be issued by the Company if the following information is first supplied to the Company:
(a) the Customer’s name and delivery address;
(b) the carrier’s name and consignment note number;
(c) the Company’s invoice number or packing slip number;
(d) details of the damage to the Goods; and
(e) the product model and serial number of the Goods.
8.4 Goods accepted for return to the Company after 24 hours under clause 8.1 may be subject to a handling charge of 20% of the Contract Price plus any costs to repackage the Goods for resale by the Company. Any costs payable by the Customer under this clause 8.4 will be payable upon receipt from the Company of a valid tax invoice.
The Company shall be entitled to make a claim, as agent for the Customer, against the Customer's carrier or agent, and the Customer will provide all reasonable assistance to the Company in relation to such claim.
9. WARRANTIES
9.1 Unless otherwise specified by the Company from time to time (including but not limited to any information provided to the Customer on a warranty card, service bulletin or the Company newsletter), Goods sold for domestic purposes have a two year warranty on spare parts and labour. The Company reserves the right to vary the warranty period from time to time.
10. CONSUMER GUARANTEES ACT 1993
10.1 If the Customer acquires, or holds itself out as acquiring, the Goods for business purposes it is agreed that, in terms of section 43(2) of the Consumer Guarantees Act 1993 ("the Act") that the Act does not apply. If the Customer is acquiring the Goods for purposes other than for business, nothing in these Terms and Conditions will limit, in any way, the terms of the Act.
10.2 If the Customer on supplies Goods the Customer must:
(a) do so on the basis that the Act does not apply where the Goods are on supplied for business purposes; and
(b) notify consumers that neither the Company nor any manufacturer undertakes that repair facilities will be available.
11. LIMITATION OF LIABILITY AND INDEMNITY
11.1 Subject to clause 10, the liability of the Company for the loss or damage or injury arising directly or indirectly from any defect of the Goods supplied is limited to replacement or repair of the Goods, or to damages not exceeding the Contract Price of such defective Goods at the option of the Company. The Company shall not be liable for any loss, damage, or injury caused by improper or incorrect operation or use of the Goods supplied. The Company shall not be liable for any consequential indirect or special damage or loss of any kind whatsoever.
11.2 The Customer shall indemnify the Company, its employees, officers, agents and contractors from and against any loss, costs, claims, damages, expenses (including legal costs and expenses on a solicitor/client basis), liabilities, proceedings or demands, whether direct or indirect, incurred or suffered by any of them as a result of any breach by the Customer (or its employees, officers, agents or contractors) of these Terms and Conditions of Sale; or any wilful, negligent or unlawful act or omission of the Customer (or its employees, officers, agents or contractors); or any infringement of any registered design or pending or registered patent relating to any products, or any design, or method of manufacture supplied by the Customer to the Company; or the Company recovering any Goods in accordance with these Terms and Conditions of Sale.
12. CANCELLATION OR SUSPENSION OF CONTRACT
12.1 Upon the occurrence of any Termination Event the Company may:
(a) cancel all outstanding Contracts with the Customer;
(b) enter into any premises where the Goods supplied by it are located, repossess and sell such Goods;
(c) retain all monies paid;
(d) require that all monies invoiced to the Customer become immediately due and payable;
(e) suspend further deliveries to the Customer;
(f) cancel all outstanding Contracts with the Customer;
(g) enter into any premises where the Goods supplied by it are located, repossess and sell such Goods;
(h) retain all monies paid;
(i) require that all monies invoiced to the Customer become immediately due and payable;
(j) suspend further deliveries to the Customer;
(k) exercise its rights under any guarantee or other security granted in favour of the Company in connection with the Goods; and
(l) recover from the Customer any loss of profits arising from such cancellation.
12.2 Cancellation shall not affect any of the Company's accrued rights under these Terms and Conditions of Sale.
12.3 The Company shall not be liable for any loss or damage whatsoever arising from such cancellation.
12.4 Should the Company be delayed in performing or be unable to perform its obligations due to any cause not within its control, the Company may cancel or suspend these Terms and Conditions of Sale without incurring any liability for any loss or damage suffered by the Customer or any other Person.
13. WAIVER, VARIATION AND NOTICES
13.1 The Company shall not be deemed to have waived any condition unless the waiver is in writing and signed by an authorised officer of the Company.
13.2 These Terms and Conditions of Sale, together with the sales order accepted by the Company and the Company's invoice shall constitute the whole terms of the Contract between the Company and the Customer and shall not be varied other than by written amendments signed on behalf of the Company by an authorised representative of the Company.
13.3 All notices and communications required or permitted to be given by the Company or the Customer, shall be made in writing and sent by electronic mail, facsimile or post to the address of the other party as may be notified by either party to the other from time to time. Any communications by electronic mail shall be deemed to have been received at the point at which a read receipt is generated by the sender's computer. Any communications by facsimile shall be deemed to be received when transmitted to the correct facsimile number of the recipient. Written notice and/or communication shall be deemed to be received 4 days after the same is placed in the post correctly addressed with postage prepaid, or left at the address of the recipient.
14. GENERAL CONDITIONS
14.1 The Company reserves the right to supply Goods to any person or entity, and any contract with the Customer shall not be construed as a licence, authority or contract exclusive to the Customer.
14.2 The Company may substitute goods of like quality which are functionally equivalent for any Goods which are unavailable.
14.3 If any provision of these Terms and Conditions of Sale shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected.
14.4 These Terms and Conditions of Sale shall be governed and interpreted according to the Laws of New Zealand.
14.5 The Customer will supply a copy of their latest financial statements in a form reasonably acceptable to the Company on request from the Company to substantiate the credit account application, raising the credit limit or outstanding account balance.
15. SPECIAL CONDITIONS
The Company may (in its sole discretion) agree to additional or alternative terms and conditions and attach those terms and conditions at Appendix A.
16. CUSTOMER ACCEPTANCE
I have read the Terms and Conditions of Sale above and I understand and accept the same. The
Customer acknowledges and agrees that all purchases of Goods and services from the Company prior to the date of these conditions are deemed to be governed by these conditions as if the conditions had been signed prior to any such purchases of the Goods.
Position: …………………………………………………………………………………………..
Signed for and on behalf of the Customer as its duly Authorised Representative
Signature: ……………………………………………………………………………………......
Name: …………………………………………………………………………………………….
Date: ………………………………………………………………………………………………
If not signed and goods are delivered these terms and conditions will form the basis of the sale.