Definitions Acceptance  |  Price & Payment Delivery of Goods Risk Title PPSA Customers Disclaimer  |  Defects    |  Returns  |  Warranty    Consumers Guarantees Act  | Intellectual Property  | Default & Consequences of Default  |  Security & Charge  | Cancellation  | Privacy Act 1993  | General

 

          

 
  1. Definitions
    1. Seller shall mean Henry Brooks & Co Ltd T/A Bathroom Direct its successors and assigns or any person acting on behalf of and with the authority of Henry Brooks & Co Ltd T/A Bathroom Direct.
    2. Customer shall mean the Customer or any person acting on behalf of and with the authority of the Customer.
    3. Guarantor means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.
    4. Goods shall mean Goods supplied by the Seller to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by the Seller to the Customer.
    5. Services shall mean all services supplied by the Seller to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
    6. Price shall mean the cost of the Goods as agreed between the Seller and the Customer subject to clause 3 of this contract.
       
  2. Acceptance
    1. Any instructions received by the Seller from the Customer for the supply of Goods and/or the Customers acceptance of Goods supplied by the Seller shall constitute acceptance of the terms and conditions contained herein.
    2. Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
    3. Upon acceptance of these terms and conditions by the Customer the terms and conditions are irrevocable and can only be amended with the written consent of the Seller.
    4. The Customer undertakes to give the Seller at least fourteen (14) days notice of any change in the Customers name, address and/or any other change in the Customers details.
       
  3. Price And Payment
    1. At the Sellers sole discretion the Price shall be either;
      1. as indicated on invoices provided by the Seller to the Customer in respect of Goods supplied; or
      2. the Sellers quoted Price (subject to clause 3.2) which shall be binding upon the Seller provided that the Customer shall accept the Sellers quotation in writing within thirty (30) days.
    2. The Seller reserves the right to change the Price in the event of a variation to the Sellers quotation.
    3. At the Sellers sole discretion a deposit may be required.
    4. Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
    5. At the Sellers sole discretion;
      1. payment shall be due on delivery of the Goods, or
      2. payment shall be due before delivery of the Goods, or
      3. payment for approved Customers shall be due on thirty (30) days following the end of the month in which a statement is posted to the Customers address or address for notices.
    6. Payment will be made by cash, or by cheque, or by credit card, or by direct credit, or by any other method as agreed to between the Customer and the Seller.
    7. GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
       
  4. Delivery Of Goods
    1. At the Sellers sole discretion delivery of the Goods shall take place when;
      1. the Customer takes possession of the Goods at the Sellers address; or
      2. a carrier takes possession of the Goods in which event the carrier shall be deemed to be the Customers agent.
    2. At the Sellers sole discretion the costs of delivery are for the Customers account.
    3. The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then the Seller shall be entitled to charge a reasonable fee for redelivery.
    4. 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 agreement.
    5. The Seller may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
    6. The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
    7. The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.
       
  5. Risk
    1. If the Seller retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
    2. If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Seller is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Seller is sufficient evidence of the Sellers rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
       
  6. Title
    1. It is the intention of the Seller and agreed by the Customer that ownership of the Goods shall not pass until:
      1. the Customer has paid all amounts owing for the particular Goods, and
      2. the Customer has met all other obligations due by the Customer to the Seller in respect of all contracts between the Seller and the Customer.
    2. Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Sellers ownership or rights in respect of the Goods shall continue.
    3. It is further agreed that:
      1. until such time as ownership of the Goods shall pass from the Seller to the Customer the Seller may give notice in writing to the Customer to return the Goods or any of them to the Seller. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
      2. if the Customer fails to return the Goods to the Seller then the Seller or the Sellers agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Goods are situated and take possession of the Goods.
         
  7. Personal Property Securities Act 1999 (PPSA)
    1. Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:
      1. these terms and conditions constitute a security agreement for the purposes of the PPSA; and
      2. a security interest is taken in all Goods previously supplied by the Seller to the Customer (if any) and all Goods that will be supplied in the future by the Seller to the Customer.
    2. The Customer undertakes to:
      1. 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 Seller may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
      2. indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
      3. not register a financing change statement or a change demand without the prior written consent of the Seller; and
      4. immediately advise the Seller of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
    3. The Seller and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
    4. The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
    5. Unless otherwise agreed to in writing by the Seller, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
    6. The Customer shall unconditionally ratify any actions taken by the Seller under clauses 7.1 to 7.5.
       
  8. Customers Disclaimer
    1. The Customer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to the Customer by the Seller and the Customer acknowledges that the Goods are bought relying solely upon the Customers skill and judgement.
       
  9. Defects
    1. The Customer shall inspect the Goods on delivery and shall within seven (7) days notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Seller has agreed in writing that the Customer is entitled to reject, the Sellers liability is limited to either (at the Sellers discretion) replacing the Goods or repairing the Goods.
       
  10. Returns
    1. Returns will only be accepted provided that:
      1. the Customer has complied with the provisions of clause 9.1; and
      2. the Seller has agreed in writing to accept the return of the Goods; and
      3. the Goods are returned at the Customers cost within seven (7) days of the delivery date; and
      4. the Seller will not be liable for Goods which have not been stored or used in a proper manner; and
      5. the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
    2. The Seller may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of 20% of the value of the returned Goods plus any freight.
       
  11. Warranty
    1. Subject to the conditions of warranty set out in Clause 11.2 the Seller warrants that if any defect in any workmanship of the Seller becomes apparent and is reported to the Seller within ninety (90) days of the date of delivery (time being of the essence) then the Seller will either (at the Sellers sole discretion) repair the defect or remedy the workmanship.
    2. The conditions applicable to the warranty given by Clause 11.1 are:
      1. The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
        • Failure on the part of the Customer to properly maintain any Goods; or
        • Failure on the part of the Customer to follow any instructions or guidelines provided by the Seller; or
        • Any use of any Goods otherwise than for any application specified on a quote or order form; or
        • The continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
        • Fair wear and tear, any accident or act of God.
      2. The warranty shall cease and the Seller shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Sellers consent.
      3. In respect of all claims the Seller shall not be liable to compensate the Customer for any delay in either replacing or repairing the workmanship/Goods or in properly assessing the Customers claim.
    3. For Goods not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller shall not be bound by nor responsible for any term, condition, representation or warranty given by the manufacturer of the Goods.
  12. Consumer Guarantees Act 1993
    1. This agreement is subject to the provisions of the Consumer Guarantees Act 1993 in all cases except where the Customer is contracting within the terms of a trade/business (which cases are specifically excluded).
       
  13. Intellectual Property
    1. Where the Seller has designed, drawn or written Goods for the Customer, then the copyright in those designs and drawings shall remain vested in the Seller, and shall only be used by the Customer at the Sellers discretion.
    2. The Customer warrants that all designs or instructions to the Seller will not cause the Seller to infringe any patent, registered design or trademark in the execution of the Customers order.
       
  14. Default & Consequences Of Default
    1. Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and such interest shall compound monthly at such a rate after as well as before any judgement.
    2. If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in pursuing the debt including legal costs on a solicitor and own client basis and the Sellers collection agency costs.
    3. Without prejudice to any other remedies the Seller may have, if at any time the Customer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Customer for any loss or damage the Customer suffers because the Seller exercised its rights under this clause.
    4. If any account remains overdue after thirty (30) days then an amount of the greater of $20.00 or 10.00% of the amount overdue (up to a maximum of $200) shall be levied for administration fees which sum shall become immediately due and payable.
    5. Without prejudice to the Sellers other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable in the event that:
      1. any money payable to the Seller becomes overdue, or in the Sellers opinion the Customer will be unable to meet its payments as they fall due; or
      2. the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
      3. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
  15. Security And Charge
    1. Despite anything to the contrary contained herein or any other rights which the Seller may have howsoever:
      1. where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Seller or the Sellers nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Customer and/or the Guarantor acknowledge and agree that the Seller (or the Sellers nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
      2. should the Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify the Seller from and against all the Sellers costs and disbursements including legal costs on a solicitor and own client basis.
      3. the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Seller or the Sellers nominee as the Customers and/or Guarantors true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 16.1.
         
  16. Cancellation
    1. The Seller may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. On giving such notice the Seller shall repay to the Customer any sums paid in respect of the Price. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
    2. In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by the Seller (including, but not limited to, any loss of profits) up to the time of cancellation.
       
  17. Privacy Act 1993
    1. The Customer and the Guarantor/s (if separate to the Customer) authorises the Seller to:
      1. collect, retain and use any information about the Customer, for the purpose of assessing the Customers creditworthiness or marketing products and services to the Customer; and
      2. to disclose information about the Customer, whether collected by the Seller from the Customer directly or obtained by the Seller from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.
    2. Where the Customer is an individual the authorities under (clause 18.1) are authorities or consents for the purposes of the Privacy Act 1993.
    3. The Customer shall have the right to request the Seller for a copy of the information about the Customer retained by the Seller and the right to request the Seller to correct any incorrect information about the Customer held by the Seller.
       
  18. General
    1. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
    2. These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.
    3. The Seller shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Seller of these terms and conditions.
    4. In the event of any breach of this contract by the Seller the remedies of the Customer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Goods.
    5. The Customer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Customer by the Seller.
    6. The Seller may license or sub-contract all or any part of its rights and obligations without the Customers consent.
    7. The Seller reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Seller notifies the Customer of such change.
    8. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.