Puretec NZ LP - Terms & Conditions of Sale

1.APPLICATION OF THIS AGREEMENT

The Seller agrees to supply Goods on the terms and conditions of this Agreement. All other terms and conditions, express or implied, are excluded to the fullest extent permitted by the Laws, including any terms and conditions sought to be imposed by the Customer.

2.ORDERS
1. a.An Order will be binding on the Seller under this Agreement once the Order has been accepted by the Seller, either in writing or by the Seller’s performance.
2. b.The Seller reserves the right to refuse an Order either in whole or in part. Any Order or part of an Order not accepted by the Seller will be deemed to have been refused by the Seller.
3. c.Subject to the Laws, once the Seller has accepted an Order, the Customer may not alter or modify the Order without the prior written consent of the Seller.
4. d.If the Seller agrees to any variation requested by the Customer in relation to details, sizes, quantities, delivery instructions or any other item or matter on which an Order is based, the Seller reserves the right to revise and amend the price accordingly.
5. e.The Customer may not:
  1. i.Cancel or defer delivery of an Order or part of an Order; or
  2. ii.Return Goods already delivered, except with the prior written consent of the Seller and on such terms and conditions as is reasonably required by the Seller, which include the following:
    1. 1.A re-stocking charge of 20% of the price of the Goods returned, payable by the Customer to the Seller;
    2. 2.The Seller’s reasonable labour costs associated with restoring non-stock items to the conditions as supplied by the Seller, or as supplied by the manufacturer (if the manufacturer is not the Seller).
3.PRICES
1. a.Freight charges apply in addition to the price of the Goods unless otherwise agreed in writing.
2. b.The price of Goods is subject to variation at any time before the Seller accepts an Order, provided the Customer accepts the variation in writing.
3. c.Unless otherwise stated in an Order, all prices are in New Zealand Dollars and are exclusive of GST. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the price except where they are expressly included in the price.
4. d.Invoices are issued to the Customer by email.
4.PAYMENT
1. a.Subject to the Customer being issued a tax invoice, and unless the Seller gives the Customer credit, the Customer must pay for all Orders as follows:
  1. i.A deposit equal to one third of the total price detailed in an Order at the time an Order is accepted by the Seller;
  2. ii.Further progress payments as detailed in an Order (if any); and
  3. iii.The balance of the price on Delivery.
2. b.The Seller’s List Price will apply to all Orders unless:
  1. i.The Seller quotes a price that is less than the List Price; and
  2. ii.The Customer makes payment of the quoted price by the due date specified in the invoice.
3. c.The Seller may, in its absolute discretion, extend credit to the Customer when supplying Goods. In the event that the Seller extends credit to the Customer, the Customer must pay invoices within 30 days of Delivery. The Seller reserves the right to refuse credit to a Customer, even when it has previously extended credit to that Customer.
4. d.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 nor to withhold payment of any invoice because part of that invoice is in dispute.
5.OVERDUE PAYMENTS
1. If the Customer fails to pay any amount due to the Seller by the due date specified in the invoice and if the Customer fails to remedy such breach within a further 7 days, then:
  1. a.All invoices rendered by the Seller will become immediately due and payable;
  2. b.The Seller may cancel any outstanding Order unless Delivery has occurred;
  3. c.The Seller may charge interest on any amount outstanding from the due date until payment is made, calculated daily, at an annual rate equal to 5% per annum plus the applicable Cash Target Rate as specified by the Reserve Bank of Australia from time to time;
  4. d.The Customer will be liable for all of the Seller’s costs and expenses incurred in recovering overdue payments from the Customer, which include mercantile agents and legal fees and expenses on a full indemnity basis;
  5. e.The Seller will credit any part-payments made by the Customer in the following order of priority:
    1. i.first, against any costs or expenses incurred in recovering overdue payments;
    2. ii.secondly, against interest that accrues on overdue payments; and
    3. iii.thirdly, against any invoices that are due and payable to the Seller.
6.ACCEPTANCE AND CLAIMS
1. Subject to the Laws, acceptance of the Goods by the Customer delivered shall be deemed for all purposes to have taken place at the expiration of seven days from Delivery.
7.DELIVERY
1. a.This clause applies to all deliveries of Goods unless otherwise agreed by the parties in writing.
2. b.“Delivery” of Goods is deemed to have occurred when Goods are left at the delivery address specified in the Order.
3. c.The Customer may, by prior written notice to the Seller, elect to arrange for delivery of Goods at its own cost from the Seller’s warehouse.
4. d.Unless clause 7)c) applies, the Seller will at its own cost arrange delivery of the Goods to the delivery address specified in the Order or such other address that the parties mutually agree in writing. The Seller may engage a sub-contractor to deliver Goods to the Customer.
5. e.The Customer shall be responsible for ensuring that delivery of the Goods can occur and will, at its own expense, provide all reasonable assistance when unloading Goods at the nominated delivery address.
6. f.The Customer must notify the Seller promptly in writing of any shortages, damage or defects in the Goods that may have occurred prior to delivery.
7. g.The Seller may deliver Goods by instalment or partial shipments and the Customer will accept each such delivery.
8. h.The Seller will use its best endeavours to ensure that Goods are delivered to the Customer within the timeframe and for the costs that it has estimated, however, such estimates are not binding on the Seller.
9. i.If delivery of Goods is delayed or does not occur for a cause other than the Seller’s own negligence or breach:
  1. i.the Seller shall not be liable to the Customer for any loss incurred by the Customer;
  2. ii.the Customer shall be liable for any additional delivery charges and for any losses incurred by the Seller in re-arranging delivery; and
  3. iii.the Customer shall not be entitled to cancel the Order by reason thereof.
8.RETENTION OF TITLE & PASSAGE OF RISK
Until all amounts due in respect of Goods have been received by the Seller in full:
1. a.The Seller remains the legal and beneficial owner of the Goods, even if the Customer installs the Goods or commingles the Goods with other goods.
2. b.Unless otherwise agreed in writing by the Seller, the Customer must hold the Goods as Seller’s bailee and agent and must keep the Goods physically separate from all other goods and products purchased by the Customer from other suppliers.
3. c.If requested by the Seller, the Customer must notify the Seller where it holds any Goods supplied under this agreement. The Customer must allow the Seller reasonable access to its premises during business hours to inspect the Goods in its possession upon reasonable notice from time to time.
4. d.If:
  1. i.The Customer fails to pay any amount (whether in part or whole) payable in respect of any Goods by the time required for payment;
  2. ii.The Customer enters in bankruptcy, liquidation or composition with its creditors, has a receiver or manager appointed over all or any part of its assets, enters into administration or becomes insolvent; or
  3. iii.This agreement is terminated or becomes terminable at the option of the Seller, the Seller may, without notice to the Customer, enter at any reasonable time any premises where Goods are located (or believed by the Seller to be located) and take possession of those Goods. The Seller’s permission to enter the Customer’s premises for that purpose is irrevocable. The Seller is not liable to the Customer in contract, tort or otherwise, or any costs, damages, expenses or losses incurred by the Customer as a result of any action taken by the Seller under this clause.
5. e.If the Goods are on-sold by the Customer before full payment is made to the Seller, the Customer holds the proceeds of sale on trust for the Seller, pending such full payment.
6. f.The Customer must reimburse to the Seller all costs incurred by the Seller in exercising its rights under this clause.
7. g.Risk in all Goods will pass to the Customer on delivery. The Customer’s obligation to insure Goods commences when risk passes to the Customer. The Customer must insure the Goods for their full value and ensure that the Seller’s interest is noted on the policy. The Seller may require the Customer to demonstrate compliance with this clause including by producing a copy of the insurance policy.
8. h.If the Customer requests the Seller to leave Goods outside Seller’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Customer’s sole risk.
9.Personal Property Securities Act 1999 (PPSA)
1. a.Upon the Customer agreeing to these terms and conditions, the Customer acknowledges and agrees that:
  1. i.These terms and conditions constitute a security agreement for the purposes of the PPSA; and
  2. ii.A security interest is taken in all Goods that have previously been supplied and that will be supplied in the future by the Seller to the Customer, and the proceeds from such Goods as listed by the Seller to the Customer in invoices rendered from time to time.
2. b.The Customer undertakes to:
  1. i.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 of financing change statement on the Personal Property Securities Register;
  2. ii.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;
  3. iii.Not register, or permit to be registered, a financing statement or financing change statement in relation to the Goods or the proceeds of such Goods in favour of a third party without the prior written consent of the Seller; and
  4. iv.Immediately advise the Seller of any material change in its business practices of selling Goods which would result in the change in the nature of proceeds derived from such sales.
3. c.Unless otherwise agreed in writing by the Seller, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
4. d.The Customer shall unconditionally ratify any actions taken by the Seller under the above clauses.
5. e.Subject to any express provisions to the contrary (including those contained in this clause), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
10.PRE-DELIVERY INSPECTION & AFTER SALES SERVICING
1. a.Subject to clause 11)a) below, the Customer acknowledges that this agreement does not entitle the Customer to receive from the Seller any complimentary pre-delivery site inspection or after sales servicing of the Goods.
2. b.The Seller may provide a pre-delivery site inspection and/or after sales service upon the parties entering into a separate agreement in respect of such services.
3. c.If the parties do not enter into a separate agreement in relation to such services, the Customer acknowledges that the Seller will have no obligation to provide such services unless required under the Laws.
11.IMPLIED WARRANTIES & GUARANTEES
1. Terms, conditions, warranties and guarantees implied by the Laws which cannot be excluded, restricted or modified apply to the supply of the Goods to the extent required by those Laws.
2. The Seller excludes to the extent permitted by law all other terms, conditions, warranties and guarantees which might be implied into this agreement.
3. The Customer does not rely on any representation, warranty or other provision made by or for the Seller which is not expressly stated in this agreement.
12.LIMITATION OF LIABILITY
1. a.If the goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the Seller’s only obligation resulting from a breach by it of any consumer guarantee it owes to the Customer is limited to:
  1. i.The replacement of the Goods or the supply of equivalent Goods;
  2. ii.The repair of the Goods;
  3. iii.The payment of the cost of replacing the Goods or of acquiring equivalent goods; or
  4. iv.The payment of the cost of having the Goods repaired.
2. b.Except as required by law, the Seller will not be liable for any indirect or consequential loss or damage, loss of profit or loss of revenue whether suffered or incurred by the Customer or another personal legal entity, irrespective of whether such loss or damage arises directly or indirectly from Goods supplied by the Seller to the Customer.
3. c.The Seller’s Goods, like any product, may fail early due to unforeseen circumstances. To mitigate the risk of property damage caused by such failure:
  1. i.the Goods should be regularly examined for leakage and/or deterioration and replaced when necessary;
  2. ii.a drain pan, plumbed to an appropriate drain or fitted with a leak detector, should be used whenever Goods are installed in locations where leakage could cause property damage;
  3. iii.the water supply should be turned off if the premises are vacant for any extended period of time; and,
  4. iv.all of the recommendations above should be conveyed by the Customer to the end user of the Goods.
13.REPAIRS
Save and except where Goods are repaired under clause 12)a) above, the Customer will be liable for the costs of repairing any Goods that are returned to the Seller for repair.
14.CLERICAL ERROR
The Seller reserves the right to correct any clerical errors in relation to catalogues, quotations and other documents prepared by the Seller.
15.VARIATION TO AGREEMENT
1. a.This Agreement may only be varied by the written agreement of both parties.
2. b.If the Seller gives written notice to the Customer of a proposed variation to this agreement and if the Customer, following receipt of the written notice, submits an Order for Goods, the Customer is deemed to have agreed to the Seller’s proposed variation.
3. c.For the purposes of sub-clause b) above, “written notice” constitutes any one of the following:
  1. i.The Seller providing notice of the proposed variation to the Customer at its nominated address (which may include by email);
  2. ii.The Seller publishes amended terms on its website, www.puretec.co.nz;
  3. iii.The Seller displaying amended terms at the premises from where the Seller conducts its business.
16.CONSUMER GUARANTEES ACT 1993 AND FAIR TRADING ACT 1986
1. a.These terms and conditions are subject to the provisions of the Consumer Guarantees Act 1993 (CGA) in all cases except where the Customer is not contracting as a consumer within the meaning under the CGA.
2. b.The Seller agrees to abide by the provisions of the Fair Trading Act (FTA).
17.GENERAL
1. a.If any of the provisions of this agreement are unlawful or invalid by reason of any applicable statute or rule of law, then such provision shall be severed from the rest of this agreement which shall remain valid and binding on the parties.
2. b.A reference to any statutory provision includes reference to that provision as amended or replaced.
3. c.Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising herein, shall be submitted to, and settled by, mediation before resorting to any external dispute resolution mechanisms (including arbitration or court proceedings) by notifying the other party in writing setting out the reason for the dispute. The parties shall share equally the mediator’s fees. Should mediation fail to resolve the dispute, the parties shall be free to pursue other dispute resolution avenues.
4. d.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.
5. e.Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directors, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc., (Force Majeure) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Customer to make payment to the Seller, following cessation of a Force Majeure.
6. f.Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.
14.INTERPRETATION
In this agreement, unless the context requires otherwise:
1. Customermeans the person that executes this document and acquires goods from the Seller.
2. Deliverymeans the delivery of Goods as defined in clause 10(a).
3. Goodsmeans all goods including goods relating to water filtration treatment or supply, including but not limited to drinking water systems, water treatment systems, whole house and commercial systems, filter housings, filter cartridges, tapware, purifiers, valves, fittings and tubes.
4. Lawsmeans all relevant Acts, regulations, codes, procedures, other statutory instruments, licences and laws applicable to the sale and supply of Goods by the Seller to the Customer.
5. Ordermeans a written or verbal order from the Customer to the Seller.
6. Sellermeans Puretec NZ LP (50081773, NZBN: 9429050022649).