1.1 “Seller” shall mean Central Vacuum Systems Ltd T/A Beam Auckland North and its successors and assigns.
1.2 “Buyer” shall mean the buyer or any person acting on behalf of and with the authority of the buyer.
1.3 “Goods” shall have the same meaning as in Contract and Commercial Law Act 2017 and are goods supplied or installed by the Seller to the Buyer (and where the context so permits shall include any supply of Services as hereinafter defined).
1.4 “Services” shall mean all services supplied by the Seller to the Buyer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined supra).
1.5 “Price” shall mean the cost of the goods as agreed between the Seller and the Buyer subject to clause 4 of this contract.
2.1 Any instructions received by the Seller from the Buyer for the supply of Goods and/or the acceptance of any Goods/Services supplied by the Seller to the Buyer shall constitute acceptance of the terms and conditions contained herein.
2.2 Upon acceptance of these terms and conditions by the Buyer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the Seller.
2.3 None of the Seller’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the Seller in writing nor is the Seller bound by any such unauthorised statements.
3.1 The Goods and/or Services are as described on the invoices, quotation, work authorisation or any other work commencement documents (including but not limited to emails or text messages) provided by the Seller to the Buyer.
4. Price and Payment
4.1 The Price, shall be, at the Seller’s sole discretion:
(a) as indicated on invoices provided by the Seller to the Buyer in respect of Goods supplied; or
(b) the Seller’s current Price at the date of delivery of the Goods according to the Seller’s current price list; or
(c) the Seller’s quoted Price plus any variations which have been agreed.
4.2 At the Sellers sole discretion a deposit may be required. The deposit amount or percentage of the Price will be stipulated at the time of the order of the Goods/Services and shall become immediately due and payable.
4.3 Time for payment for the Goods and/or Service shall be of the essence and may be stated on the invoice, quotation or any other work commencement documents.
4.4 The Seller may withhold delivery of the Goods until the Buyer has paid for them, in which event payment shall be made before delivery.
4.5 Payment will be made by cash on delivery, or by cheque, or by bank cheque, or by credit card or any other method as agreed to between the Buyer and the Seller. At the Seller’s sole discretion, payment for approved Buyers may be made by instalments in accordance with the Seller delivery payment schedule.
4.6 The Price is exclusive of GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Seller.
5. Delivery of Goods
5.1 Delivery of the Goods shall be made to the Buyer’s nominated address. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery, or delivery of the Goods shall be made to the Buyer at the Seller’s address.
5.2 Delivery of the Goods to a carrier at the direction of the Buyer, either named by the Buyer or failing such naming to a carrier at the discretion of the Seller for the purposed of transmission to the Buyer, is deemed to be a delivery of the Goods to the Buyer.
5.3 The costs of carriage and any insurance which the Seller incurs as a result of such carriage shall be reimbursed by the Buyer (without any set-off or other withholding whatsoever) and shall be due on the date of payment of the Price. The carrier shall be deemed to be the Buyer’s agent.
5.4 Where there is no agreement that the Seller shall send the Goods to the Buyer, delivery to a carrier at limited carrier’s risk at the expense of the Buyer is deemed to be delivery to the Buyer.
5.5 The Seller may deliver the Goods by separate instalments (in accordance with the agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions in this contract of sale.
5.6 The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
5.7 The Seller shall not be liable for any loss or damage whatsoever due to failure by the Seller to deliver the Goods (or any of them) promptly.
5.8 Notwithstanding that the Seller may have delayed or failed to deliver the Goods (or any of them) promptly the Buyer shall be bound to accept delivery and to pay for the Goods in full provided that delivery shall be tendered at any time within 2 months of the delivery date.
5.9 When the Goods at the date of this agreement are in possession of a third person there is no delivery by the Seller to the Buyer unless and until such third person acknowledges to the Buyer that the Goods are being held on behalf of the Buyer subject to the issue or transfer by the Seller of documents of title to the Goods.
6.1 If any of the Goods are damaged or destroyed prior to property in them passing to the Buyer, the Seller is entitled, without prejudice to any of its other rights or remedies under these terms and conditions (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable in respect of the Goods. This applies whether or not the Price has become payable under these terms and conditions. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the needs for any person dealing with the Seller to make further enquiries. The Seller will apply the insurance proceeds as follows:
(a) first, in payment of the Price of the Goods that are damaged or destroyed, if unpaid;
(b) second, in payment of the outstanding Price of any other Goods supplied to the Buyer by the Seller whether under the terms and conditions or otherwise;
(c) third, in payment of any other sums payable to the Seller by the Buyer on any account;
(d) fourth, any balance is to be paid to the Buyer.
7.1 The Buyer shall inspect the Goods on delivery and shall within five (5) days of delivery notify the Seller of any claim for alleged shortage in quantity or inaccurate filing of the order. The Buyer shall afford the Seller an opportunity to inspect the Goods and installation within a reasonable time following delivery. If the Buyer shall fail to comply with these provisions the Goods shall be presumed to be in accordance with the terms and conditions and free from any defect or damage.
7.2 Claims for Goods damaged or lost while in the possession of the carrier shall be filed by the consignee directly with the carrier company/organisation.
8.1 The Warranty shall be the current warranty provided by the manufacturer or importer of the Goods. The Seller shall be under no liability whatsoever except for the express conditions as detailed and stipulated in the manufacturer’s warranty which is available upon request.
8.2 The Seller does not undertake that repair facilities will be available for the Goods and will not be liable to repair any defective Goods and at its own discretion may:
(a) notify the manufacturers and/or importers of the Goods of any defect notified by the Buyer; and
(b) request the manufacturers and/or importers to repair or replace any defective Goods
9. Buyers Disclaimer
9.1 The Buyer 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 him by any servant or agent of the Seller and the Buyer acknowledges that he buys the Goods relying solely upon his own skill and judgement and that the Seller shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the Manufacturer which warranty shall be personal to the Buyer and shall not be transferable to any subsequent Buyer.
10. Consumer Guarantees Act 1993
10.1 Nothing in these terms of trade excludes, limits, restricts or is intended to derogate from any right or remedy which the Buyer may have pursuant to the Consumer Guarantees Act 1993 (“the CGA”), if the Buyer is a consumer as defined in the CGA who requests the goods and services for personal use. However, the guarantees contained in the CGA are expressly excluded where the Buyer acquires goods or services from the Seller for the purposes of a business.
10.2 If the Buyer onsells the Goods to a third party, the Buyer agrees: (a) where permitted by law, to contract out of the CGA; and (b) to neither give or make any assertion or representation in relation to the Goods without the Sellers prior written approval nor hold yourself out to be the Sellers agent. (c) to indemnify the Seller for any losses incurred due to third party claims against the Seller
11. Default & Consequences of Default
11.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2% per calendar month and shall accrue at such a rate after as well as before any judgement.
11.2 If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify the Seller from and against all the Seller’s costs and disbursements including on a solicitor and own client basis and in addition all third-party costs of collection.
11.3 Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Buyer and any of its other obligations under the terms and conditions. The Seller may suspend or terminate the supply of Goods to the Buyer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller exercised its rights under this clause.
11.4 In the event that:
(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable to meet its payments as they fall due;
(b) the Buyer 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;
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer; then
(i.) the Seller shall be entitled to cancel all or any part of any order of the Buyer which remains unperformed in addition to and without prejudice to any other remedies;
(ii.) all amounts owing to the Seller shall, whether or not due for payment, immediately become due and payable;
(iii.) the Seller shall be entitled to reclaim any Goods in the Buyer’s possession or control, which have been supplied by the Seller and to dispose of the Goods for its own benefit and shall be entitled to enter, directly or by its agents, upon any land or premises where the Seller believes the Goods which it has supplied are stored without being liable to any person.
12.1 It is the intention of the Seller and agreed by the Buyer that property in the Goods shall not pass until:
(a) the Buyer has paid all amounts owing for the particular Goods: and
(b) the Buyer has met all other obligations due by the Buyer to the Seller in respect of all contracts between the Seller and the Buyer, and that the Goods, or proceeds of the sale of the Goods, or proceeds of the sale of the Goods, shall be kept separate until the Seller shall have received payment and all other obligations of the Buyer are met.
12.2 It is further agreed that:
(a) until such time as ownership of the Goods shall pass from the Seller to the Buyer the Seller may give notice in writing to the Buyer to return the Goods or any of them to the Seller. Upon such notice the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease.
(b) if the Buyer fails to return the Goods to the Seller then the Seller or the Seller’s agent may enter upon and into land and premises owner, occupied or used by the Buyer, or any premises as the invitee of the Buyer, where the Goods are situated and take possession of the Goods, without being responsible for any damage thereby caused.
(c) 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 Seller’s ownership of rights in respect of the Goods shall continue.
(d) the Buyer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Seller.
(e) the Seller may require payment of the Price or the balance of the Price due together with any other amounts due from the Buyer to the Seller arising out of these terms and conditions, and the Seller may take any lawful steps to require payment of the amount due and the Price.
(f) the Seller can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Buyer.
13. Personal Property Securities Act 1999
13.1 Upon assenting to these terms and conditions the Buyer acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of section 36 of the Personal Property Securities Act 1999 (“PPSA”); and
(b) a security interest is taken in all Goods previously supplied by the Seller to the Buyer (if any) and all Goods that will be supplied in the future by the Seller to the Buyer during the continuance of the parties relationship;
13.2 The Buyer undertakes to:
(a) 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;
(b) 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 changed thereby;
(c) not register a financing change statement (in accordance with Regulation 8) or a change demand (in accordance with Regulation 9) without the prior written consent of the Seller;
(d) give the Seller not less than 14 days prior written notice of any proposed change in the Buyer’s name and/or any other change in the Buyer’s details including but not limited to, changes in the Buyer’s address, facsimile number, or business practice); and
(e) 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.
13.3 Unless otherwise agreed to in writing by the Seller, the Buyer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
14.1 The Seller may cancel these terms and conditions or cancel delivery of Goods and Services at any time before the Goods are delivered but giving written notice. On giving such notice the Seller shall promptly repay to the Buyer any sums paid in respect of the Price for those Goods. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation.
15. Privacy Act
15.1 The Buyer authorises the Seller to collect, retain and use any information about the Buyer, for the purpose of assessing the Buyers creditworthiness or marketing any Goods and Services provided by the Seller to any other party.
15.2 Where the Buyer is an individual, the Buyer understands this information is being collected in accordance with the Privacy Act 1993 and that the Buyer has rights of access to and correction of personal information held by the Seller.
15.3 The Buyer authorises the Seller to disclose any information obtained to any person for the purposes set out in clause 16.1
15.4 Where the Buyer is a natural person the authorities under clause 16.1 & 16.2 are authorities or consents for the purposes of the Privacy Act 1993.
15.5 The Buyer warrants that all information provided to the Seller has been collected in accordance with the principles of the Privacy Act 1993 and that any third party has authorised the use or disclosure of any personal information in any way deemed necessary by the Seller for the purpose of carrying out the service or supply of Goods. The Buyer undertakes to indemnify the Seller against any claims arising from any action taken by itself or on the Buyers behalf.
16. Unpaid Sellers Rights to Dispose of Goods
16.1 In the event that:
(a) the Seller retains possession or control of the Goods; and
(b) payment of the Price is due to the Seller; and
(c) the Seller has made demand in writing of the Buyer for payment of the Price in terms of this contract; and
(d) the Seller has not received the Price of the Goods, then, whether the property in the Goods has passed to the buyer or has remained with the Seller,
the Seller may dispose of the Goods and may claim from the Buyer the loss to the Seller on such disposal.
17. Lien & Stoppage in Transit
17.1 Where the Seller has not received or been tendered the whole of the Price, or where a bill of exchange or other negotiable instrument or the like has been dishonoured, the Seller shall have:
(a) a lien on the Goods;
(b) the right to retain them for the Price while the Seller is in possession of them;
(c) a right of stopping the Goods in transit whether or not delivery has been made or ownership has passed, and right of resale,
(d) the foregoing right of disposal.
18. Limitation and Exclusion of Liability
18.1 The Buyer acknowledges and accepts that all advice, recommendations and information in whatever form has been given gratuitously and without liability. Illustrations (for example location plans, specification sheets) are not binding as to detail as modifications and improvements in manufacture are introduced from time to time. The Seller shall not be liable for any loss, damages, cost or claim arising from the Goods or Services that the Seller provides or reliance on or use of information, howsoever caused, including indirect or consequential loss, damage or liability.
18.2 To the maximum extent permitted by law, the Seller shall not be liable to the Buyer (or any agents or employees) whether in contract, tort, breach of statutory duty or otherwise for: (a) Any variation in product specifications including but not limited to colour or design, which may occur from time to time; or (b) Any consequential, indirect or special loss, damage or injury from the Goods or Services; or (c) Any delays in delivery, loss of profits, revenue, business opportunity, anticipated savings, wasted overheads or damage to goodwill, regardless of whether in the circumstances it is deemed direct, indirect, consequential or special losses.
18.3 In any event and subject to the clause detailed above, should a court or adjudicator of relevant jurisdiction find the Seller liable, the Sellers maximum aggregate liability to the Buyer arising out of any claim for loss or damages, however arising, shall not exceed the lesser of: (a) The contract price; or (b) The value of the Goods or Service which are the subject of the claim; or (c) The actual value of the loss the Buyer has incurred.
19. Force Majeure
19.1 Neither party shall be liable for any default due to any act of god, war, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
20.1 If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
20.2 All Goods and Services supplied by the Seller are subject to the Laws of New Zealand and the Seller takes no responsibility for changes in the law which affect the Goods or Services supplied.
20.3 The Seller shall be under no liability whatsoever to the Buyer for any indirect loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by the Seller of these terms and conditions.
20.4 The Buyer shall not set off against the Price amounts due from the Seller.
20.5 The Seller may license or sub-contract all or any part of its rights and obligations without the Buyer’s consent.
20.6 The Seller reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the Seller notifies the Buyer of such change.
20.7 In the event of any breach of this contract under no circumstances shall any liability, loss or damage of the Seller exceed the Price of the Goods.