TERMS AND CONDITIONS OF TRADE OF THE WATERBOY MANGAWHAI LIMITED
1. DEFINITIONS
1.1 “customer” means any person ordering products from the supplier;
1.2 “products” means any goods and/or services ordered by the customer from the supplier;
1.3 “price” means the cost of the products;
1.4 “supplier” means The Waterboy Mangawhai Limited.
2. ACCEPTANCE
2.1 Any instructions received by the supplier from the customer for the supply of products shall constitute an order and acceptance of these terms and conditions.
3. PRICE
3.1 Quotations are exclusive of GST.
3.2 Additional charges will be incurred for:
3.2.1 deviations from the amount of products ordered and additional requirements;
3.2.2 urgency, if delivery time is brought forward (including all related costs such as overtime).
3.3 Where no price is stated in writing or agreed to orally the products shall be deemed to be ordered by and supplied to the customer at the supplier’s standard rates applicable to such products at the time of the order.
3.4 The price may be increased by the amount of any reasonable increase in the cost of materials supplied to supplier and used in the provision of the products to the customer, between the date of the order and delivery of the products.
4. DELIVERY, RISK, RETENTION OF OWNERSHIP
4.1 Delivery shall take place at the agreed delivery date at the customer’s premises, unless varied by agreement between the parties. The supplier shall deliver the products within a reasonable time from the customer placing the order. The customer shall ensure that the supplier has access to the customer’s water tanks on the customers premises so that the supplier is able to deliver the products. If the supplier is unable to obtain access in order to deliver the product, or finds that the water tanks are already full, then the customer shall be liable to reimburse the supplier for its reasonable costs associated with such failed delivery.
4.2 Risk in the products and other material held for or supplied to the customer will pass to the customer at delivery.
4.3 Legal ownership of the products by the supplier is retained by the supplier until payment in full of all costs relating to such goods is received by it. Such goods and any proceeds thereof, up to the amount owing, will be the supplier’s property and held in trust for the supplier. The customer irrevocably authorises the supplier and its representatives to access and will procure at its cost such access to any premises where the goods are held and to recover the same and shall indemnify the supplier in relation to any cost, claim or liability in relation thereto.
5. PAYMENT TERMS
5.1 Payment in full is due on delivery or if required by the supplier, then prior to delivery. If payment is not required before delivery or on delivery then payment is due within 7 business days of delivery on receipt by the customer of a Tax invoice, unless otherwise agreed in
writing.
5.2 Any credit to be provided and agreed to by the supplier shall be on the supplier’s then standard credit terms which may vary from time to time.
5.3 If the customer fails to pay in full by the due date, the customer shall, without prejudice to the supplier’s other rights and remedies, pay default interest at the rate of 5% above the interest rate charged by the supplier’s banker from time to time to its customers, compounding at month’s end, and any enforcement costs in relation to collecting any debts outstanding.
6. CANCELLATION AND SUSPENSION OF WORK AND NO REFUNDS
6.1 No cancellation charge applies if the order is cancelled prior to 48 hours before the day of delivery. Beyond that time the customer may not cancel any order accepted by the supplier except upon terms which compensate the supplier for all expenses incurred and otherwise protect the supplier against loss, as agreed with the supplier.
6.2 No refund shall be made for any prepaid orders except as follows. If products are ordered and paid for in advance and then cancelled 48 hours before the day of delivery, then the customer shall be charged all and any reasonable costs incurred by the supplier before such cancellation and the supplier shall refund the balance if any. Alternatively in the case of on- going supplies of products, the supplier may credit any prepaid amount or surplus to future supplies.
7. EXCLUSIONS OF LIABILITY
7.1 Subject to the provisions of clause 8 the supplier, its directors, employees or agents:
7.1.1 do not give any warranty or accept any responsibility to ensure that the products comply with the requirements of any legislation or other regulatory measures relating to the products.
7.1.2 shall not be liable for delays in or other matters relating to delivery or delivery times due to or contributed to by the customer, errors or omissions arising from oversight or misinterpretation of verbal instructions, or delays, default, loss or damage due to industrial disputes, accidents, acts of God, equipment failure or mischievous damage or other cause beyond the supplier’s control. A partial or total breakdown of the supplier’s operation or network will be deemed to be an event beyond the supplier’s control; and
7.1.3 shall in no event be liable, whether in tort, contract or otherwise, for any indirect or consequential loss (including loss of profits) or special damage suffered by the customer; and
7.1.4 any liability in connection with any services provided in relation to the products for which the supplier, its directors, employees or agent are held responsible (whether or not due to or contributed by their negligence, mistake, system or press failure, early, late or non- delivery) shall be limited to the replacement of deficient products or the payment of an amount equal to the price of the relevant deficient product service.
8. CONSUMER GUARANTEES ACT
8.1 If the customer acquires or holds itself out as acquiring the products for the purposes of a business then the conditions, warranties and guarantees set out in the Sale of Goods Act 1908 and the Act or otherwise implied by law shall not apply.
9. GENERAL LIEN
9.1 The supplier will in respect of all unpaid debts due from the customer have a general lien on all goods and materials held for the customer and, without prejudice to any other rights and remedies, if such debt remains outstanding for more than 90 days after its was due, may
dispose of the same and apply any proceeds towards any amounts remaining outstanding.
10. GOVERNING LAW
10.1 These terms and conditions are governed by and construed in accordance with the laws of New Zealand and the parties submit to the jurisdiction of the Courts of New Zealand.
11. VARIATION
11.1 These terms and conditions and any amendments thereof shall prevail and take precedence of any special terms and conditions for the ordering of products or any terms of trade of the customer, unless expressly otherwise agreed in writing by the supplier.
11.2 The supplier may vary these terms and conditions at any time in its sole discretion and without notice to the customer. Orders received after the date such variation takes effect shall be subject to those amended terms and conditions.
12. GUARANTEE
If the customer is a company then in consideration for the supplier providing products to the customer at the request of the customers directors and shareholders, the directors and shareholders shall personally guarantee payment to the supplier of the price and of all other
monies payable by the customer to the supplier.
