In these terms and conditions:
"TPL" means Tebbutt Plumbing Limited and (if applicable) its related companies, successors, assigns and authorised agents;
"Customer" means the person, company or entity purchasing goods and/or services from TPL;
"Invoice" includes any written quotation and other contractual document issued by TPL;
"Goods" means all goods sold or to be sold by TPL to the Customer;
"Services" means all services provided by TPL to the Customer.
TERMS AND CONDITIONS PARAMOUNT
Except as expressly agreed in writing these terms and conditions shall apply to and govern all contracts and other dealings between TPL and the Customer notwithstanding any statement to the contrary in any order or other document of the Customer.
Any instructions received and accepted by TPL from a Customer for the supply of goods and/or services shall constitute a binding contract and acceptance on these terms and conditions.
COLLECTION AND USE OF INFORMATION
The Customer authorises TPL to collect, retain and use any information about the Customer, for the purpose of assessing the Customer’s credit worthiness, enforcing any rights under this contract, or marketing any Products provided by TPL to any other party.
The Customer authorises TPL to disclose any information obtained to any person for the purposes set out in the preceding clause.
Where the Customer is a natural person the authorities given in the two preceding clauses are authorities or consents for the purposes of the Privacy Act 1993.
The Customer shall pay the price stated on TPL’s invoice, save for errors, which TPL reserves the right to correct. All prices are quoted and shown net excluding GST, and do not include any other taxes or levies, delivery/freight charges, insurance charges or currency exchange fluctuations which, if applicable, will be extra charges payable by the Customer.
All published prices are indications only. In some cases estimates have been made and actual prices may vary. Prices are subject to alteration without prior notice and goods will be sold at the relevant prices at the time of delivery.
Services provided by TPL shall be charged on the basis of either fixed quotes or time charge at TPL’s rates from time-to-time. The Customer shall pay for all materials used and all other out-of-pocket expenses incurred by TPL in connection with the provision of services and travelling expenses where applicable.
If in TPL’s invoice there is reference to a deposit or any component of the purchase price for the goods or services being non-refundable, then the Customer shall not be entitled to a refund of any amount so paid in the event of cancellation or termination of contract for any reason whatsoever.
Notwithstanding any credit arrangement, TPL reserves the right to accept or decline any Customer order. Where goods are sold by description or by reference to a sample, TPL will use its best endeavours to supply goods complying with such description or sample, but TPL shall not be liable for any variation in the goods. The quantity, quality and description of, and any specification for goods shall be those set out in any TPL quotation or the Customer’s order as may be applicable provided that TPL may make changes to specifications which do not materially affect the quality or performance of goods.
Where there is a TPL quotation and a Customer order, the terms of TPL’s quotation shall govern.
DELIVERY AND HEALTH AND SAFETY
TPL will endeavour to deliver goods within any timeframes requested by the Customer, but delivery time shall not be of the essence and TPL shall not be liable for any loss to the Customer caused by any delay or non-delivery. TPL reserves the right to deliver goods by instalments and failure by TPL to deliver any one or more instalment shall not entitle the Customer to cancel the contract as a whole.
TPL reserves the right to halt the installation of Goods if, in its opinion, the circumstances on site make it unsafe to install or continue to install any Goods. Site specific safety measures must be put in place by the Customer at its expense. If a job has not commenced and Goods cannot be installed in a safe manner then TPL reserves the right to decline to install its Goods. Absent or inadequate safety measures may invalidate TPL’s quotation.
All accounts are:
Notwithstanding that the Customer may have a Credit Account or other agreed trading terms, TPL reserves the right to require COD or other payment terms in respect of any particular supply of goods or services.
In the case of Credit Accounts and other agreed trading terms, the Customer shall pay in full all accounts and amounts owed to TPL by the payment date(s) specified in TPL’s invoice(s). If no payment date is specified, then payment in full is due by the 20th of the month following the month of TPL’s invoice. No credit shall be extended on overdue accounts.
Time for payment shall be of the essence.
Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument if paid in full.
In the event that payment is not received by the due date default interest may be charged by TPL at a rate equivalent to 11 per cent per annum above the unsecured overdraft interest rate charged by TPL’s bank and calculated on a daily basis on all monies outstanding for the period during which the payment has been overdue until all due moneys have been paid in full.
All payments shall be applied first in payment of default interest (if any).
Any discount offered by TPL is contingent upon receipt of all monies owed by the Customer on or before the payment due date(s). If the Customer fails to make full payment by the due date any discount will immediately be withdrawn and debited to the Customer’s account.
TPL may at its discretion apply any payment it receives from the Customer in and towards the satisfaction of any indebtedness of the Customer to TPL and TPL shall not be bound by any conditions or qualifications that the Customer may make in relation to any payment.
The Customer authorises TPL to obtain at any time from any person or entity any information that TPL may require for the purpose of assessing the Customer’s creditworthiness and the Customer irrevocably authorises and requests all such person and entities to release to TPL any personal information held concerning the Customer.
Where the Customer is a natural person then such authority is authority and consent for the purposes of the Privacy Act 1993. The Customer agrees that in the event of its default TPL may provide details of that default and personal information relating to the Customer to any credit agency so that such credit agency can maintain effective records.
If the Customer fails to pay any amount owed to TPL by the due date, or fails to comply with any other obligation owed to TPL, then without prejudice to any of its other rights, remedies and powers TPL may (notwithstanding that TPL may have waived any previous default by the Customer):
TPL may at any time by notice in writing suspend or terminate the Customer’s Credit Account or any other agreed trading terms and require immediate payment by the Customer of all amounts owed to TPL and TPL shall be entitled to exercise the powers set out in the preceding paragraphs.
The Customer will upon demand pay to TPL all costs, charges and expenses (including, but not only, collection commissions and legal costs on a solicitor and own client basis) incurred by TPL in collecting or taking action to collect any amount owed by the Customer and in connection with the exercise, enforcement or preservation of any of TPL’s rights, powers or interests.
Where a quotation is given by TPL, unless otherwise agreed, the quotation shall be valid for 7 days from the date of issue and the prices shall be exclusive of GST unless specifically stated to the contrary.
TPL reserves the right to alter the quotation because of circumstances beyond its control.
Where Goods and/or Services are required in addition to the quotation the Customer agrees to pay for the additional cost of the Goods and/or Services.
RETENTION OF TITLE
Notwithstanding delivery and the passing of risk in goods, or any other provision of these terms and conditions, all goods (including, where applicable, any resulting product into which the goods are incorporated, manufactured or commingled, whether or not the original identity of the goods is lost) shall remain and be the property of TPL as legal and equitable owner until TPL has received cleared payment in full of all moneys owed by the Customer to TPL.
Until TPL has received cleared full payment of all moneys owed by the Customer to TPL the Customer shall hold the goods on trust for TPL and shall store the goods in such a way that it is clear that they are the property of TPL. Unless TPL directs otherwise, the Customer may use or resell the goods by way of bona fide sale at market value in the ordinary course of its business.
Until such time as the property in goods passes to the Customer, provided the goods are still in existence and have not been resold, TPL shall be entitled at any time to require the Customer to return the goods to TPL and TPL and its agent may at any time without further notice enter the Customer’s premises or any other premises where the goods are stored and retake possession of the goods (if required, disconnecting the goods from any vessel, structure or equipment to which they may be attached or installed) or perfect TPL’s security interest in the goods. In so doing, TPL shall have no liability for any losses, costs or charge suffered or incurred by the Customer and the Customer indemnifies and keeps indemnified TPL against all liability TPL may have to any third party in so acting.
PERSONAL PROPERTY SECURITIES ACT 1999 (PPSA)
The goods shall be the collateral as that term is defined in the PPSA. The Customer grants in favour of TPL a charge over all goods supplied by TPL where such goods have been delivered but the Customer has not paid all moneys owed to TPL and over all the Customer’s present and after-acquired property supplied by TPL, and such charge shall be a “security interest” for the purposes of the PPSA and shall secure payment of all moneys owed by the Customer to TPL including interest and other amounts payable under these terms and conditions and the costs of registering such security interest.
Where a charge granted over any goods is a registrable security interest under the PPSA the following shall apply:
The Customer agrees that section 114(1)(a), 116, 117(1)(c), 119, 120(2), 121, 125 to 127, 129 and 131 to 133 of the PPSA shall not apply to these terms and conditions or the security created hereunder.
The Customer waives the right to receive a copy of the verification statement confirming registration of a financing statement or a financing change statement relating to the security interest created by these terms and conditions.
The Customer shall not change its name, without first notifying TPL of its new name at least 7 days prior to the change taking effect. The Customer must not allow or permit the creation of a lien over any goods prior to payment in full to TPL of all moneys owed by the Customer to TPL. The Customer will upon demand pay all TPL’s expenses and legal cost (on a solicitor and own client basis) in connection with the registration of a financing statement or financing change statement relating to the security interest created by these terms and conditions or of obtaining an order under section 167 of the PPSA. If all moneys owed by the Customer have been paid to TPL in full, including all moneys payable under these terms and conditions, TPL shall at the request of the Customer and the Customer’s cost, register a discharge of the security interest.
TPL will not accept goods for return unless agreed in writing. TPL will not accept return of indented goods ordered specifically for the Customer. In the event of TPL agreeing to accept returns, the following conditions apply:
TPL reserves the right at its option to refuse the return of any goods, and to charge (in addition to any non-refundable deposit) a restocking fee of 20% of the GST-exclusive purchase price.
It is the responsibility of the Customer to satisfy itself as to the condition, quality, suitability and fitness of goods for any particular purpose and no representation, warranty or undertaking in relation to the goods has been or is made or given by or on behalf of TPL in relation thereto. All claims for defective goods must be in writing and delivered to TPL together with the goods in question for inspection by a designated representative of TPL within 5 days of receipt of the goods. All claims must quote the relevant TPL invoice number. Any claims not made within 5 days of receipt will be deemed waived by the Customer.
TPL shall have no liability in respect of any defect arising from misuse, wilful damage, negligence, failure to follow instructions, unauthorised alteration or modification, abnormal working conditions or fair wear and tear. TPL shall have sole right to decide whether goods are capable of repair and TPL’s liability (if any) in respect of goods shall be limited as follows:
No guarantee or warranty is given, and no obligation incurred, by TPL in respect of goods, or components not manufactured by TPL, in respect of which the Customer shall only be entitled to the benefit of any guarantee or warranty given to TPL by the manufacturer or supplier provided that TPL shall not be required to pay or incur any cost in relation thereto.
All services provided by TPL are provided in good faith on the basis of the information provided by the Customer. Where TPL is requested by the Customer to provide casual advice in conjunction with the sale of goods but not constituting the formal provision by TPL of services then TPL shall have no liability whatsoever in relation to any such advice given and the Customer shall rely solely on its own judgment in connection with all such matters. If the Customer alleges defects in TPL’s workmanship then the Customer shall forthwith after becoming aware of the same notify TPL in writing. Failure to so notify TPL in writing shall constitute a waiver by the Customer of its rights against TPL in respect of any such alleged defect. TPL shall have no liability where any services performed or goods supplied have been re-installed, modified, not maintained or improperly maintained or improperly used. Any rectification work required to be carried out by TPL shall be carried out at a place and at a time stipulated by TPL and the Customer shall be responsible for delivering the goods or vessel, as the case may be, to that place by that time.
The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires the Goods and/or Services from TPL for the purposes of a business in terms of section 2 and 43 of that Act.
The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon TPL which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on TPL, TPL’s liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.
Except as otherwise provided in the preceding clause, TPL shall not be liable for:
Any loss or damage of any kind whatsoever, arising from the supply of Goods and Services by TPL to the Customer, including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Goods or Services provided by TPL to the Customer; and
The Customer shall indemnify TPL 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 TPL or otherwise, brought by any person in connection with any matter, act, omission or error by TPL its agents or employees in connection with the Goods or Services.
No guarantee, warranty, representation or statement shall be binding on TPL unless made in writing by a director or senior officer of TPL. Except as expressly set forth in these terms and conditions all warranties and conditions, whether implied by law or otherwise, are excluded and TPL shall have no liability whatsoever to the Customer. TPL shall not be liable to the Customer for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise) even if such loss were reasonably foreseeable or TPL had been advised of the possibility of the Customer incurring the same.
If it shall be held that TPL has any liability to the Customer then, except as expressly set forth in these terms and conditions, the liability of TPL to the Customer shall not exceed the lesser of:
TPL shall have no liability arising from, and may correct at any time, any typographical, clerical or other error or omission in any sales literature, price list, quotation, invoice, communication or other document or information issued by it.
Nothing in these terms and conditions shall affect the rights of the Customer under the Consumer Guarantees Act 1993, Fair Trading Act 1986 and other statutes that may imply warranties and conditions, provided that, if the Customer is, or holds itself out to be, acquiring the goods for the purposes of a business, then such statutes are excluded.
TPL takes no responsibility for the warranty, repair, and replacement or any issue arising from a product, fixture, tap or fitting supplied by the Customer. Such product may be installed by TPL as per the manufacturer’s instruction but any fault, malfunction or manufacturer’s warranty issue arising is the sole responsibility of the Customer. Any labour and/or materials required in any rectification work will be charged to the Customer. Should the Customer wish to claim the costs, the Customer must first pay TPL’s invoice and after that the Customer may claim reimbursement from the merchant, importer, wholesaler or other party from whom they purchased the product as the case may be.
These terms and conditions remain in force notwithstanding any neglect, forbearance or delay in enforcement. TPL shall not be deemed to have waived any term or condition unless such waiver shall be in writing and signed by a director of TPL and any such waiver shall apply only to the particular transaction to which it refers.
If an clause or provision of these terms and conditions shall be held illegal or unenforceable by any judgment of any Court or Tribunal having competent jurisdiction, such judgment shall not affect the remaining provisions hereof which shall remain in full force and effect as if such clause or provision held to be illegal or unenforceable had not been included herein.
PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES
If the Customer is a company or trust, the director(s) or trustee(s), in consideration for TPL agreeing to supply the goods and/or services and grant credit to the Customer at their request, enter into this contract in their personal capacity and jointly and severally personally undertake as principal debtors to TPL the payment of any and all monies now and hereafter owed by the Customer to TPL and indemnify TPL. against non-payment by the Customer. Any personal liability of a signatory hereto shall not exclude the Customer in any way whatsoever from the liabilities and obligations contained in this contract. The signatories and Customer shall be jointly and severally liable under the terms and conditions of this contract and for payment of all sums due hereunder.
The contract shall be governed by the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the Courts of New Zealand.