Terms and Conditions of Trade
Terms & Conditions of Trade
These terms and conditions of trade (Terms) apply to the supply of Goods by or on behalf of Zenith Heaters Limited or any of its related companies in New Zealand (us, we or our) to any customer (referred to as you or your). By placing an Order for Goods with us, you agree to these Terms, as varied from time to time.
1. Application of Terms
- If you place an Order with us for Goods, and we accept that Order, a contract is formed on the basis of these Terms and any other order-specific terms and conditions that we may specifically agree with you in writing. These Terms are paramount, and supersede and cancel any terms and conditions of supply that you make seek to impose in any purchase order or other document that you issue to us in connection with any Order.
- We reserve the right to vary these Terms from time to time and any such variations will be effective on the earlier of the date we notify you and the date on which we publish the varied Terms on our website, provided that no change may be made to the Terms retrospectively to apply to any existing Orders between us and you.
2. Your obligations
- By placing an Order, you acknowledge and agree that you have made your own enquiries into the Goods that you wish to purchase and have satisfied yourself that the Goods are suitable and sufficient for your intended use and to meet your requirements.
- You agree to provide us with all information as is necessary for us to perform our obligations under these Terms and to fulfil any Orders that we accept. You are responsible for any costs that we incur as a result of any error or omission in the information you supply or any delay in supplying the information we request.
- You must pay the price for the Goods indicated in the invoice (or other similar document) which is provided by us to you in relation to the Goods. Unless otherwise agreed, prices are stated on a "Free in Store" basis at our warehouse location in New Zealand, with any additional freight costs borne by you based on your requested delivery point. Any orders that are requested to be delivered on an urgent basis may incur additional charges.
- Unless otherwise stated in the Order, prices quoted are exclusive of GST. You are required to pay to us any GST chargeable in respect of the supply of Goods at the same time that you are required to pay the price for the Goods.
- For clarity, we may make changes to the specifications and prices of Goods that are not the subject of an Order at any time and without prior notice to you. However, where we have provided you with a quote, then, unless we notify you otherwise at the time of the quote, those prices quoted will not be subject to change for 30 days.
- We may from time to time include a recommended retail price with any Goods that we supply to you, but you are solely responsible for any pricing decision that you make with regard to the resale of Goods and the markets in which you operate.
4. Payment terms and credit policy
- Subject to clause 4(b), we may require you to make a deposit when placing an Order, with any balance to be paid by you on or prior to delivery of the Goods.
- We may agree, in our sole discretion, to provide the Goods to you on credit terms. Credit approval, once granted, may be withdrawn by us at any time. Where credit approval:
- (i) until such time as ownership of the Goods passes from us to you, we may give notice in writing to you to return the Goods to us. Upon such notice, your rights to obtain ownership or any other interest in the Goods shall cease.
- (ii) has been granted, payment for the Goods is to be made on or before the agreed date included in each invoice raised. An additional service fee may apply to any payments made by credit card.
- You must pay us the amount set out in invoices within the agreed terms from the date on which the invoice was raised. We may charge interest on all amounts not paid by you to us in full within the time for payment at a rate of 2% per calendar month accruing each calendar month until the date of payment. If you default in payment of any invoice when due and payable, you indemnify us from and against all costs and disbursements incurred by us in pursuing the debt.
- The payment terms that we may agree with you (including any credit we extend to you) from time to time is subject to change on our website or as stated in our invoices or as notified to you at the time at which you place your Order.
- Unless otherwise agreed, the point of delivery will be as nominated by you, provided that such delivery point (and the access at that delivery point) is reasonable in our opinion. If applicable, and unless otherwise agreed, you must provide at your expense all necessary facilities, labour and equipment to off-load the Goods at the nominated point of delivery.
- We will use all reasonable efforts to deliver the Goods to you on any delivery date that we have specified, and we may choose the method of delivery and elect to deliver to you in instalments. Notwithstanding the above, any time stated for delivery is indicative only and we will not be liable to you under any circumstances if there is a delay in delivery and you will still be required to purchase the Goods notwithstanding such delay.
- In the event that you are unable to accept delivery of the Goods as arranged, then we are entitled to charge a reasonable fee for redelivery. Delivery of the Goods to a third party nominated by you is deemed to be delivery to you for the purpose of these Terms.
6. Risk and Title
- Title in the Goods will remain with us until you pay for the Goods in full. Risk in the Goods will pass to you on collection or delivery to your nominated point of delivery.
- Where payment for Goods is outstanding (in part or full), you must store such Goods separately so that the Goods remain easily identifiable, and you agree to hold such Goods as bailee for us while they are in your possession and until they are paid for.
- If you resell any of the Goods before you have paid us all amounts owing in respect of those Goods, you agree that you hold the proceeds from the resale of those Goods on trust for us immediately when they are receivable or received, such proceeds to be kept in a separate account.
- You further acknowledge and agree that:
- (i) this retention of title clause herein constitutes a security agreement for the purposes of the PPSA which creates a Security Interest in all Goods, including any Commingled Good (where applicable); and
- (ii) until such time as ownership of the Goods passes from us to you, we may give notice in writing to you to return the Goods to us. Upon such notice, your rights to obtain ownership or any other interest in the Goods shall cease.
7. Acceptance of Goods and returns
- We will not consider any claims by you for Goods 'damaged in transit' or for 'short supply' unless written notice is received by us within 14 days of delivery. If you fail to notify us of any such damage or non-conformity relating to an Order within that period, you will be deemed to have accepted the Goods the subject of the relevant Order.
- You are not entitled to a refund or to return any Goods because of a wrongful selection or if you change your mind and decide that you do not want the Goods ordered. Goods can only be rejected within a reasonable period after delivery if they are damaged, defective or incorrectly supplied (as reasonably accepted by us). In those circumstances, you must notify us as soon as possible and, to the extent permitted by law, we retain the right at our election to: (1) arrange for the defect to be repaired, where possible; (2) provide a replacement; or (3) provide a refund or credit (as discussed with you in advance).
- If we agree that you may return any Goods for credit, you acknowledge that we may charge you a handling fee, which is currently 20% of the value of the returned Goods. You will also be responsible for any shipping or freight costs associated with such return.
- Please note that we will not accept any request to return Goods that have been customised for you or are 'made-to-order', unless there is a defect in those Goods which constitutes a breach of the Warranty provided by us in relation to the Goods.
- To the maximum extent permitted by law, and except for the Warranty we provide, no representation or warranty (whether express, implied, statutory or otherwise) is given in relation to the Goods, including as to their functionality, performance, completeness, or fitness for any particular use or purpose, and any term, condition, representation or warranty which would (but for this clause) be implied by law is excluded.
- If you are purchasing the Goods for the purposes of a business, including for resale, you acknowledge and agree that to the maximum extent permitted by law, the Consumer Guarantees Act 1993 and sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 do not apply in respect of the sale of Goods to you and that this provision is fair and reasonable in the circumstances of the arrangement contemplated by these Terms.
9. Default and liability
- You shall assume all risk and liability resulting from your use of the Goods (either alone or in conjunction with other goods or materials) even if we had prior knowledge of your intended use of the Goods. You are responsible for ensuring that you use the Goods in accordance with any instructions or manuals that we may provide. A failure to do so may void any claim you have under the Warranty we provide with the Goods.
- To the maximum extent permitted by law, our liability for any breach of these Terms or in response to any claim under the Warranty, is limited at our election to: (1) arranging for the defect in any Goods to be repaired, where possible; (2) providing a replacement product; or (3) providing a refund or credit (as discussed with you in advance).
- To the maximum extent permitted by law, we will not be liable to you for any indirect or consequential loss or for any loss of revenue, profits, goodwill, business or anticipated business, anticipated savings or for any business interruption or other indirect or consequential loss or damage, however arising.
10. Security Interest
- You hereby acknowledge that these Terms constitute a security agreement which creates a Security Interest in favour of us in respect of all Goods supplied by us to you, and all after acquired Goods supplied by us to you (or for your account) and the proceeds (as that term is defined in the PPSA) of such Goods, in each case, to secure the payment from time to time for Goods, including future advances, and for the performance by you (and any Director/s referred to under the indemnity on your credit application, if any) of your other obligations to us from time to time. You agree that such Security Interest represents a 'purchase money security interest' for the purposes of the PPSA.
- You grant us a Security Interest in all of the present and after acquired property in which Goods supplied or financed by us have been attached or incorporated, including any Commingled Goods and in any proceeds of sale of Goods.
11. General covenants relating to Security Interests
- Until such time as payment in full has been received by us from you in respect to an Order, you agree not to create, cause or permit to exist any other Security Interest over any Goods the subject of the applicable Order, other than a Permitted Security Interest. You agree to comply with the terms of each Permitted Security Interest binding on you in respect of the relevant Goods from time to time and must ensure that:
- (i) there is no increase in the amount secured under a Permitted Security Interest (excluding any part of a Permitted Security Interest which is a purchase money security interest); and
- (ii) there is no variation to a Permitted Security Interest that increases the collateral the subject of the Permitted Security Interest, other than in the case of a purchase money security interest, without our prior written consent.
- You agree to sign anything and do anything we require to further or more effectively secure our rights over the applicable Goods or under these Terms. This includes anything we require in order for us to:
- (i) register and maintain (including renew before expiry) one or more financing statements on the PPSR in relation to any Security Interest in the relevant Goods supplied under these Terms and/or any Order;
- (ii) remove any financing statement from the PPSR which is registered against you in relation to a Security Interest which is not a Permitted Security Interest; and
- (iii) obtain possession or control of any Goods for the purposes of perfecting any Security Interest in that property by possession or control for the purposes of the PPSA.
- You waive your rights to receive a verification statement in respect of any financing statement or financing change statement registered by or on behalf of us under the PPSA and agree that, as between us and you, to the extent permitted by the PPSA, nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms, or the Security Interest granted under these Terms, and you waive your rights under sections 116, 102(2), 121, 125, 129 and 131 of the PPSA.
12. Privacy Act
13. Intellectual Property
You acknowledge that we own and will retain ownership of all intellectual property, copyright and design rights in and to the Goods and any associated documentation produced in connection with the Goods. Nothing in these Terms confers on either party any licence to use any of the other party's intellectual property, except to the extent required to give effect to these Terms.
14. Extraordinary events beyond our control
We have no liability to you in relation to any failure to comply with these Terms (or to fulfil any particular Order) as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, industrial action, lock out, war, the inability of our suppliers to supply us with necessary materials or any other matter beyond our control.
In consideration of us agreeing to accept an Order and supply you with Goods, and to grant credit facilities to you in connection with that supply, the Director/s referred to under the indemnity on the credit application form you sign (if any) jointly and severally guarantee to us the payment on demand of all monies which are or shall be hereafter due to us by you.
- No conduct by us with respect to any default by you under these Terms shall be deemed to be a waiver of that or any other obligations or condition.
- Clerical errors and misprints in computation, typing or otherwise in our documentation including catalogues, price lists, dispatch dockets, invoices and statements, or adjustment notes shall be subject to correction by us by means of reissue of the document or by adjustment advices.
- If any part of these Terms is illegal, void or unenforceable, this will not affect the remaining parts of the Terms which will remain in full force, and if possible the illegal, void or unenforceable part will be read with such modifications as are necessary to render it legal, valid and enforceable.
- The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the supply of Goods contemplated by these Terms.
- These Terms are governed by laws of New Zealand and both of us submit to the non-exclusive jurisdiction of the courts of New Zealand.
Unless the context otherwise requires, capitalised words have the following meanings:
- "Commingled Goods" means any Goods that subsequently become part of a product or mass such that the original identity of the Goods is lost in the product or mass.
- "Goods" means all goods purchased or ordered by you from us or our related companies;
- "GST" means goods and services tax imposed under the Goods and Services Tax Act 1985;
- "Order" means an order by you to us requesting supply of Goods, and where the context requires, means that order as subsequently accepted by us;
- "Permitted Security Interest" means any Security Interest which we consent in writing to being a Permitted Security Interest for the purpose of these Terms;
- "PPSA" means the Personal Property Securities Act 1999;
- "PPSR" means the New Zealand Personal Property Securities Register maintained for the purposes of the PPSA;
- "Security Interest" includes a security interest (as defined in the PPSA), mortgage, charge, encumbrance, lien, pledge, finance lease, sale and lease back, sale and repurchase, deferred purchase or title retention arrangement, flawed asset arrangement, and any other security or arrangement having like economic effect over any property, assets or revenues; and
- "Warranty" means our product warranty, available at www.zenithwater.co.nz.