TERMS
AND CONDITIONS OF SALE
1. Conditions
(a) The goods or services supplied now or at any
time by ZIP PLUMBING PLUS CHRISTCHURCH LTD (together with its agents,
administrators or assigns called “the ZPPCL”) to the customer described
overleaf (together with its agents, administrators or assigns called “the Customer”)
(such goods and services called “the Goods”) are supplied subject to the
following terms and conditions which may not be varied unless the ZPPCL specifically
agrees to the contrary in writing. These terms and conditions override any
terms contained in the Customer’s order or otherwise proposed by the Customer.
(b) Notwithstanding clause 1(a) the ZPPCL may by
written notice to the Customer alter or replace these terms and conditions from
time to time. All orders placed subsequently by the Customer shall be upon the
altered or replaced terms and conditions.
(c) If the Customer or a person who has previously represented the Customer
with the ZPPCL obtains goods through or on behalf of another legal entity, or organisation,
the Customer shall remain personally liable in addition to the new entity or
organisation until the debt is paid and the ZPPCL has received and granted a
fresh formal application for credit from the new entity or organisation
2. Payment
(a) The goods are supplied according to the terms of
payment contained in the Customer’s Application for Credit Account, unless
agreed otherwise in writing, and these terms and conditions. Payment is to be
made on the 20th day of the month following statement date. Payment may not be
made by credit card except by prior arrangement. If payment is made by credit
card, the ZPPCL reserves the right to charge an administration fee equivalent
to 3 percent of the payment.
(b) Interest shall be payable by the Customer on all
amounts overdue at the rate of 3 percent per annum above the ZPPCL’s bank overdraft rate from the date the payment
became due until the date of payment and the Customer shall upon demand
reimburse the ZPPCL for all costs, expenses or other sums incurred by the ZPPCL
in exercising any right or remedy available to it consequent upon default by
the Customer (including but not exclusively full solicitor/client legal costs,
being costs on a full indemnity basis, collection agency costs and commissions
and costs of the ZPPCL’s compliance under Section 162 of the Personal
Properties Securities Act 1999 (“PPSA”) and of obtaining any order maintaining
registration under s165), which sums shall also
carry interest at the above rate if unpaid within one calendar month of demand
having been made.
(c)
All claims and
requests for refunds must be made within 14 days of date of invoice and be accompanied by
the relevant invoice number. The ZPPCL is not bound to accept any return of
goods and any such acceptance will be on terms that the goods are not specially
made and are in good condition, complete with packaging and suitable for resale
and will incur a handling charge
(d) Unless the ZPPCL grants credit in writing (in accordance with the ZPPCL’s
Application for Credit Account), goods must be paid for before they are delivered to the Customer. If the ZPPCL grants credit, the Customer
shall pay the ZPPCL in accordance with 2(a) & (b) above without deduction
whether by way of set-off, counter-claim or any other equitable or legal claim
but provided that the Customer is not otherwise in breach, the ZPPCL will not
file any court proceeding for recovery before the 21st of the month
following the date shown on that invoice.
(e)
The ZPPCL may
terminate or suspend the grant of credit or vary the terms upon which it grants
credit at will by notice to the Customer, even if an order has been accepted by
the ZPPCL. If the grant of credit is terminated or suspended, the Customer
shall pay any outstanding debt forthwith and pay for any existing order in
advance.
(f)
The Customer shall
have no right of set off in respect of any claim against the ZPPCL. If the
Customer wishes to dispute any amount charged by the ZPPCL, the Customer must
first pay the invoice to avoid being in default and the ZPPCL shall reimburse
to the Customer any amounts incorrectly charged by either crediting the Customer’s
account or making a cash payment, the manner of reimbursement shall be at the
sole discretion of the ZPPCL.
3. Risk
and Title
Until payment has been made of all amounts owed by the Customer to the ZPPCL
i.e. the Customer’s account with the ZPPCL has a nil balance (whether or not
those amounts or any part thereof are owed in respect of the goods or any
contract between the ZPPCL and the Customer, or are owed subject to any
condition or other contingency) the following shall apply:
(a) Legal and equitable
ownership of the goods (including goods already paid for) shall not pass from
the ZPPCL to the Customer, notwithstanding the appropriation of the goods to
any contract or the delivery of the goods to any contract or the delivery of
the goods to or as directed by the Customer. As soon as and from such time that all goods supplied to date are paid
for in full, the Customer shall own all such goods and remain the owner
notwithstanding further supply and the ZPPCL’s retention of title shall apply
only to goods supplied after such full payment until Customer again pays in
full for all goods supplied to date (i.e. until the Customer’s account with the ZPPCL has a nil balance again). In addition, the Customer grants to the ZPPCL a security interest in
all of the customer's present and after-acquired property (including, without
limitation, goods as defined) as security for the customer's debt and
obligations and for the avoidance of doubt this sentence applies to goods paid
for and to "future advances" as that expression is defined in the
PPSA. Section 96(1) of the Property Law
Act 2007 applies only to the extent that it is not contradicted by these terms.
(b) If the goods are
supplied to or as directed by the Customer, they are to be dealt with by the Customer,
only as a fiduciary agent and/or bailee of the ZPPCL.
(c) The Customer carries
the full risk in the goods from the date of their delivery by the ZPPCL.
(d) The Customer shall keep
the goods separate and readily identifiable while the goods are in the
possession or control of the Customer.
(e) The Customer
irrevocably authorises the ZPPCL immediately upon default of the Customer
without the necessity of giving notice to enter on and into any property or
premises owned or occupied by the Customer to search for and remove all or any
of the goods and, if necessary, to use the Customer’s equipment to lift and
transport the goods and to sell or otherwise dispose of the goods removed and
credit the sale proceeds towards the amounts owed. If all or any of the goods
are wholly or partially attached to, intermingled with, or incorporated in any
other goods or property, then the ZPPCL may in its sole discretion disconnect,
retrieve or sever the goods in order to remove them. The ZPPCL shall not be
liable for any damage caused to the Customer in exercising its rights under
this clause and the Customer shall indemnify the ZPPCL against any claim from
any other party for any damage caused during such search and seizure.
(f) If at the time of any default all or any of the goods have been sold
or otherwise disposed of by the Customer for valuable consideration or so as to
create a debt owed to the Customer then the Customer hereby assigns all legal
and equitable title to that consideration and/or debt to the ZPPCL and
authorises the ZPPCL to act in all respects as the Customer in obtaining and
realising that consideration and/or debt and crediting the sum obtained towards
the amount owed. The Customer shall hold any monetary consideration received in
trust for the ZPPCL in a separate bank account so that the consideration is
identifiable and traceable and account to eh ZPPCL for all monies owed by the Customer
to the ZPPCL.
(g) If at the time of any
default all or any of the goods have been lost damaged or destroyed in
circumstances that entitle the Customer to claim reimbursement pursuant to any
insurance policy, then the Customer hereby authorises the ZPPCL to act in all
respects as the Customer in making or pursuing the claim, and hereby assigns to
the ZPPCL all legal and equitable title to the proceeds of the claim, which
proceeds are to be credited towards the amounts owed.
(h) The ZPPCL may exercise
any of the rights and remedies referred to in these terms and conditions
entirely without prejudice to any other rights and remedies that may be
available to it, and no failure or neglect to act or pursue any right or remedy
available to the ZPPCL shall in any way prejudice its right to exercise that or
any other right or remedy.
(i) No payment by cheque, bill or promissory note shall be deemed to
have been made until the cheque, bill or note has been presented, honoured, and
cash payment received by the ZPPCL.
(j) The Customer is only authorised to sell or otherwise dispose of the
goods upon terms and conditions that include terms identical to all of the
provisions of this clause 3 including this clause.
(k) If any part of this
clause 3 is deemed to be invalid or unenforceable by the ZPPCL against the Customer
or any other party, only that part of this clause shall be invalid or
unenforceable and it shall be severed from this clause leaving the remaining
provisions in full force and effect.
3A.Default
(a)
The customer shall
be in default under this agreement if any invoice is not paid on presentation,
or the customer enters into the No Asset Procedure, bankruptcy, liquidation, or
composition with its creditors, has a receiver, manager or administrator appointed
over all or any part of its assets or becomes insolvent, or the customer causes
or allows any goods to be or become liable to be subject to any lien,
destroyed, damaged, endangered, disassembled, removed (other than as part of
products manufactured by the customer in the normal course of its business) or
concealed from Edward Gibbon Limited or if the customer sells or otherwise
disposes of the goods other than in the ordinary course of the customer's
business or the goods become liable to seizure by another creditor.
(b)
The ZPPCL may
cancel any order or suspend any delivery without incurring any liability to the
Customer if the Customer is in default.
4. Consumer
Guarantees Act 1993
(a) The provisions of the Consumer Guarantees
Act 1993 (“the Act”) are excluded where the Customer acquires the goods or
services from the ZPPCL, or holds itself out as acquiring those goods or
services, for the purposes of a business.
(b) Where, in respect of any goods, the Customer
is a Supplier within the meaning of the Act, the Customer will indemnify the ZPPCL
against all liabilities, costs, claims and expenses of whatever nature and
whether or not under the Act, in respect of claims by or through parties to
whom the goods are supplied by the Customer.
5. Warranties
and Liabilities
(a) The ZPPCL accepts no liability for damaged
or faulty goods, short delivery or errors in despatch which would be apparent
by inspection on delivery unless the Customer notifies the ZPPCL in writing
within three (3) days from the date of delivery of the goods. The ZPPCL accepts
no liability for loss of goods ordered but not delivered unless the ZPPCL receives
written notice within fourteen (14) days of the date of the packing slip or
invoice relating to those goods (whichever is dated the earlier).
(b) Unless any written warranties are given by
the ZPPCL in relation to particular goods, the ZPPCL makes no representation
and gives no guarantee or warranty of any kind in relation to the goods
(including any representation, guarantee or warranty implied by law to the
extent that the representation, guarantee or warranty can be excluded).
(c) The benefit of any representation, guarantee
or warranty is personal to the Customer and is not assignable.
(d) To the extent allowed by law, the ZPPCL’s
liability shall be limited to the repair or replacement of goods or the supply
of equivalent goods or, at the ZPPCL’s option, payment of the proper and
reasonable costs of repair or replacement of the goods and, to the extent
allowed by law, the ZPPCL’s liability under this clause is subject to its
maximum liability under clause 5(e).
(e) Regardless of the legal basis of any claim of
any kind made against the EGL, the ZPPCL’s maximum liability under any
circumstances shall, to the extent allowed by law, not exceed the purchase price
paid or payable for the goods supplied by the ZPPCL which give rise to that
claim.
(f) The ZPPCL shall not, in any event, be liable
(whether before or after completion of any contract for the supply of any
goods) for any loss or damage arising from, caused by or due to any negligence
of the ZPPCL’s representatives, servants or agents. The ZPPCL shall not be
liable for any special, incidental, indirect or consequential loss or damage
which may result from or relate to any defective, faulty or damaged goods or
any breach by the ZPPCL of any of its obligations. For the purpose of these
terms and conditions consequential loss includes (without limitation) loss of
use of goods or services, loss of income or profit and loss or damage to
persons and property.
6. Special
Purchases
(a) Goods specifically purchased for a customer, if returned for a
credit, will be subject to a restocking fee.
(b) A repackaging charge will apply for goods
returned in packaging that is not deemed suitable for resale.
7. Personal
Property Securities Act 1999
(a) The Customer acknowledges that these terms and
conditions create a security interest in all present and after acquired goods
and any proceeds of the sale of the goods as security for all of the Customer’s
obligations to the ZPPCL pursuant to the Personal Property Securities Act 1999
(“the PPSA”) and that the ZPPCL may register a financing statement to perfect its
security interest in the goods delivered or to be delivered to the Customer in
accordance with the provisions of the PPSA.
(b) The Customer shall provide all information,
execute or arrange for execution of all documents and do all other things that
the ZPPCL may require to ensure that the ZPPCL has a perfected first ranking
security interest in the goods under the PPSA.
(c) The Customer waives its rights to receive a verification
statement in respect of any financing statement or financing change statement
registered by or on behalf of the ZPPCL under the PPSA and agrees that as
between the ZPPCL and the Customer the Customer will have no rights under (or
by reference to) sections 114(1)(a), 116, 117(1)(c), 119, 120(2), 121, 125,
129, 131, 132, 133 and 134 of the PPSA and where the ZPPCL has rights in
addition to those in part 9 of the PPSA, those rights shall continue to apply.
(d) The Customer shall immediately upon request by
the EGL, procure from any person considered by the ZPPCL to be relevant to its
security position such agreements and waivers as the ZPPCL may at any time
require.
(e) The Customer shall immediately notify
the ZPPCL of any change in the Customer’s name, address details and any other
information provided to the ZPPCL to enable the ZPPCL to register a financing
change statement if required.
8.
Loyalty and Reward Programs
(a) The ZPPCL may at its discretion from time to
time participate in certain loyalty or reward programs in respect of which Customer
may receive points, credits or other rewards or incentives for purchasing goods from the
ZPPCL.
(b) The Customer acknowledges that the ZPPCL has no
liability to the Customer in respect of any such loyalty or reward program and
in particular that the ZPPCL is not liable in respect of the failure of any
loyalty or reward program or in the event that the organiser of the loyalty or
reward program is unable to provide the benefits which were represented to the Customer
or which the Customer anticipated when purchasing the goods from the
ZPPCL.
We acknowledge that all orders made and all goods and services supplied
are made and supplied subject to these terms and conditions of sale (which
replace any existing terms and conditions of sale).