1) Terms of Trade
Unless agreed otherwise in writing, these terms of trade (Terms) apply to all contracts, quotations and order confirmations and to all goods and services purchased from or supplied by Design Windows Auckland Ltd, Design Windows Dunedin Ltd, Design Windows Nelson Ltd, Design Windows Central Otago Ltd, Design Windows West Coast Ltd, trading as Design Windows (“the Supplier”) to the Customer and supersede any previous terms of trade. The Customer means the customer or any person acting on behalf of or with the implied authority of the Customer. All references to Customer include the Guarantor (if any).
a. Quotations are valid for 30 days from the date of issue. Quotations are provisional only and all measurements and installation costs are subject to confirmation by a complete site measure and inspection once the quotation is accepted by the Customer (Order Confirmation) and the Purchase Price shall be varied as necessary and are deemed accepted by the Customer. The Supplier may require the Order Confirmation to be in writing.
b. A Quotation will not constitute an offer to sell goods to the Customer. No contract for the supply of goods shall exist until a Customer’s Order Confirmation has been accepted by the Supplier.
a. Delivery costs are generally included in any quotation unless specifically noted otherwise.
b. Risk in the goods passes to the Customer upon delivery of the goods, which shall occur at the time the Customer or Customer’s agent or carrier takes possession of the goods at the Supplier’s premises or upon delivery to the curb side at the Customer’s delivery address by the Supplier. If the Supplier delivers the goods, the Customer must ensure the Supplier has safe and unobstructed access in order to effect delivery. If the Customer requires the Supplier, its agent or carrier to drive onto a property to deliver goods, this shall be at the sole risk of the Customer.
c. The Customer will be in breach of these Terms if, within 7 days of being notified by the Supplier that the goods are ready for collection or delivery, the Customer refuses or fails to take possession.
d. Any dates and times quoted by the Supplier for the delivery of the goods are approximate only and the Supplier will not be liable for any delay in delivery or liable for any direct or indirect costs or loss incurred by the Customer as a result of any delay, whether or not beyond the Supplier’s control. A delay in delivery shall not entitle the Customer to cancel any order or to refuse to accept delivery of the goods or services.
e. The Supplier is not responsible for securing building consents, inspections or any documentation required by third parties for any goods or services supplied.
a. The Consumer Guarantees Act 1993, the Fair Trading Act 1986, Sale of Goods Act 1908 and other statutes may imply warranties or conditions or impose obligations upon the Supplier which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of such implied warranties, conditions or terms imposed on the Supplier, the Supplier’s liability shall, where it is allowed, be excluded, or if not able to be excluded, only apply to the minimum extent required by relevant statute. In particular, the guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires goods or services from the Supplier for the purposes of a business in terms of sections 2 and 43 of that Act.
b. The Supplier warrants that the goods supplied will be to the specifications on the quotation or as varied subsequently.
c. The Customer accepts that there may be variations, within industry standards, between the goods and the samples and colour indications shown to the Customer.
d. The Supplier is not responsible for damage to goods caused by failure to maintain, store or install the goods correctly by the Customer or third parties.
e. The Supplier warrants that it will use reasonable care and skill in the performance of any work performed pursuant to the supply.
f. If the Customer is not satisfied with the goods or services, any complaint must be made in writing and communicated to the Supplier within 30 days of provision of the goods or services and the Customer must allow the Supplier to inspect the goods within a reasonable time of receiving notice. If the Supplier elects to repair or remedy the defect it will do so with minimum delay, although the Customer acknowledges that this is dependent upon sourcing replacement parts and technical support. The Customer cannot arrange for a third party to fix the problem and then claim for warranty, without the Company’s prior written approval. If the Customer does not comply with this clause, the goods or services are deemed to have been supplied in accordance with these Terms and are free from any defect or damage.
5) Health & Safety
The Customer undertakes to ensure that all Health & Safety legislation and regulations are complied with.
If the Customer cancels the supply of goods or services after Order Confirmation, the Customer shall pay an administration fee and all costs incurred by the Supplier up to the time of cancellation. The Supplier may discontinue the provision of any good or services at any time without notice.
a. The Customer authorises the Company to collect, retain and use personal information about the Customer in order to assess the Customer’s credit worthiness or disclose to a third party details of the Terms and any contract for the purposes of debt collection and providing credit references and credit checks.
b. No delay or failure to act by the Supplier is a waiver. No waiver is effective unless it is in writing.
c. If any provision of these Terms shall be invalid or unenforceable, the validity and enforceability of the remaining provisions shall not be affected.
d. The Supplier may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
e. The Supplier reserves the right to review these Terms at any time and if changes are made, that change will take effect from the date the Customer is notified of such change. All Order Confirmations made after the amended Terms have been provided or made available to the Customer or posted on the Supplier’s website, will be deemed to have been made in acceptance of the new Terms.
f. The laws of New Zealand shall apply to these Terms and all contracts between the Customer and the Supplier.
g. If the Customer is a company or trust, the director(s) or trustee(s), in consideration for the Supplier agreeing to supply goods and services to the Customer, sign the Order Confirmation in their personal capacity and jointly and severally personally undertake as principal debtors to the Supplier the payment of any and all monies now or hereafter owed by the Customer and indemnify the Supplier against non-payment by the Customer. The signatories and the Customer shall be jointly and severally liable under these Terms and for payment of all sums due hereunder.
h. References to statutes, regulations, rules, and bylaws of central or local government, or provisions thereof, include that legislation as amended from time to time and legislation in substitution therefor.
8) Reservation of Title & PPSR
a. The Supplier will retain full ownership of all goods supplied until such time as the Purchase Price has been paid for in full.
b. The Customer acknowledges and agrees that these Terms constitute a security interest in the goods for the purposes of the Personal Property Securities Act 1999 (PPSA) as security for payment by the Customer for the Purchase Price.
c. In consideration of the Supplier providing the goods to the Customer, including all future provision of goods, the Customer grants a purchase money security interest (as defined in the PPSA) to the Supplier which will continue until the Purchase Price is paid in full. If any goods supplied to the Customer are disposed of prior to payment of the Purchase Price and/ or become mixed with other goods (whether supplied by the Supplier or not) the security interest shall continue in the proceeds of sale of the goods or the product produced by the mixing of the goods.
d. The Customer undertakes to:
i. Sign any further documents and/or provide any further information, such information to be complete, accurate and up- to-date in all respects, that the Supplier may reasonably require to register a financing statement or financing charge statement on the Personal Property Securities Register (“PPSR”);
ii. Indemnify, and upon demand reimburse, the Supplier for all expenses incurred in registering a financial statement or financing charge statement on the PPSR or releasing any goods charged thereby;
iii. Not register a financing change statement or a change demand without the prior written consent of the Supplier;
iv. Give the Supplier not less than fourteen (14) days prior written notice of any proposed change in the Customer’s name or other details (including but not limited to changes in the Customer’s address, facsimile number, or business practice); and
v. Immediately advice the Supplier 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.
e. The Supplier and the Customer agree that nothing in sections 114(1) (a), 122, 133 and 134 of the PPSR shall apply to the Terms and Conditions.
f. The Customer waives its rights as a debtor under sections 116,120, 121, 125, 126, 127, 128, 129, 131 and 132 of the PPSA.
g. The Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
a. The Purchase Price shall be the price provided on the quotation and as varied by the Supplier subsequently (Purchase Price). The Customer must pay a minimum deposit of 25% of the Purchase Price upon Order Confirmation. The balance of the Purchase Price is due for payment within 7 days of the date of invoice, unless otherwise arranged in writing. Where no Purchase Price is stated in writing or agreed to orally, the Purchase Price shall be as indicated on invoices provided by the Supplier in respect of such goods or services supplied.
b. Where any part of the Purchase Price remains unpaid after the due date, the amount outstanding (Debt) shall immediately incur late payment interest on a daily basis of 0.0685% (annual interest rate 25%). Such interest shall accrue until the Debt is paid in full.
c. Should the Supplier commence any action to recover the Debt and interest or for any other breach of the Terms, the Customer will be liable to reimburse the Supplier for all legal costs, debt collection and other costs (directly or indirectly) incurred by the Supplier in enforcing the Terms, whether or not Court proceedings are filed.
d. The Customer shall not set off against the Purchase Price amounts due from the Supplier.
e. If there is money outstanding under two or more invoices, the Supplier may apply a payment made by the Customer in such manner as the Supplier thinks fit.
f. Credit terms may be offered following completion of the Supplier’s “Application for and Terms of Credit” form, on such terms as the Supplier deems fit. The Supplier is entitled, at any time, to refuse to supply goods and services on credit terms, despite any prior arrangement or understanding to the contrary.
g. In the event that:
i. Any money payable to the Supplier becomes overdue or if at any time the Customer is in breach of any obligation under these Terms or if the Customer jeopardises the Supplier’s security interest in any goods, or in the Supplier’s sole opinion the Customer will be unable to meet its payments as they fall due; or;
ii. The Customer becomes insolvent, has a receiver appointed in respect of all or some of its assets, makes or is likely to make an arrangement with its creditors or has a liquidator (provisional or otherwise) appointed or is placed under statutory or official management;
Then without prejudice to the Supplier’s other remedies at law: • The Supplier shall be entitled to cancel or suspend the provision of any goods or services to the Customer which remain unperformed or un-provided and any of its obligations under these Terms and will not be liable to the Customer for any loss or damage the Customer suffers pursuant to this clause;
• All amounts owing to the Supplier shall, whether or not due for payment, immediately become due and payable and all credit facilities cancelled;
• The Supplier may enforce any security interest granted to it by the Customer; and
• The Supplier may require payment in advance for all orders, including existing orders.
10) Construction Contracts Act 2002
a. All invoices for progress payments will be prepared to meet the provisions of the Construction Contracts Act 2002 (CCA). All invoices issued pursuant to these Terms shall be in the form of a payment claim within the meaning of the CCA. The Customer is hereby put on notice of the requirements of the CCA in terms of the issuing of payment schedules.
b. With regards to retention money, the Customer and the Supplier shall, to the extent required at law, comply with the Construction Contracts Act 2002 and its subsequent amendments. For the purposes of 18G, the interest rate shall be as provided for in clause 9(b) above.
11) Limitation of Liability
To the extent permitted by law, the Supplier shall be under no liability whatsoever to the Customer for any direct or indirect loss and/ or expense (including loss of profit) suffered by the Customer arising out of a breach by the Supplier of these Terms, including a defect in the goods or services provided. The Customer shall indemnify the Supplier against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of the Supplier or otherwise, brought by any person or entity in connection with any matter, act, omission, or error by the Supplier in relation to the supply of goods and services and/ or these Terms.