Chesters Terms of Trade
CHESTER’S PLUMBING & BATHROOM CENTRE LIMITED TERMS OF TRADE
This agreement is between the customer (“the customer”, “you” or “your”) (including any representative, agent or employee) and Chester’s Plumbing & Bathroom Centre Limited (“Chesters”, “we”, “us”). The terms of trade set out below govern the supply of all goods and services from us to you. They are effective from 1 May 2019 and will replace all earlier Chesters terms of trade and any terms and conditions contained in any document used by you and purporting to have contractual effect, and your acceptance of any goods or services from Chesters indicates your continuing acceptance of these terms of trade. Customers who are consumers may have other rights under New Zealand law.
1. Delivery and risk
1.1. You are responsible for insurance and risk in the goods from the time they leave our premises.
1.2. You agree to pay all delivery costs, if delivery costs are charged by Chesters in relation to a particular order. If we deliver any order in instalments, then each delivery is a separate contract.
1.3. You do not have the right to possess goods until they are delivered to you or collected by you. Where you ask us to deliver goods directly to another person, that person takes possession of the goods for you as your agent and you are still directly responsible to us under these terms of trade.
1.4. All claims for shortage or delivery damage must be made to the carrier and to Chesters within 3 business days of the date of delivery.
1.5. We will make every effort to ensure delivery of goods, or performance of services, is on time but will not be liable to you for any loss or damage arising in any way from any delay in delivery or performance.
2. Quotations, Orders and Prices
2.1. Unless otherwise agreed in writing, prices for goods or services are as per our rates ruling at the date when you place an order for goods or services. Prices are subject to alteration without notice.
2.2. Quoted prices are the New Zealand dollar price and are valid for the time stated on any quotation, or if no time is stated, on the date of quotation only.
2.3. Unless otherwise stated in writing, all goods will be box shipped and it is your responsibility to assemble, configure and install the goods.
2.4. You agree to pay goods and services tax and any other government duties, levies or taxes in respect of the goods or services.
2.5. Any variation, waiver or cancellation of an order by you shall have no effect unless accepted in writing by Chesters. If Chesters accepts a variation, waiver or cancellation then we may at our sole discretion charge you a re-stocking fee and/or levy you a handling charge of up to (but no more than) 20% of the price of the goods.
2.6. If you are requested to pay a deposit for goods that you have ordered then such deposit is nonrefundable unless we agree in writing that the deposit is refundable.
3. Credit Facilities
3.1. We may grant or decline to grant credit to you. We may in our sole discretion, at any time and without reason or notice to you and/or any guarantor, and without prejudice to any other right in law or equity:
(a) increase or decrease the amount of credit supplied to you;
(b) terminate or suspend any credit arrangement we have with you in which case all monies owing by you to us shall be immediately due and payable; and
(c) request additional security from you and/or your guarantor on terms satisfactory to us before proceeding with any order or supplying any goods or services on your account (if any).
3.2. You acknowledge that neither these terms nor your credit application shall be construed to be a consumer credit contract as defined by section 11 of the Credit Contracts and Consumer Finance Act 2003.
4. Payments and property
4.1. Unless we have agreed in writing to extend credit to you, you must pay for all goods in full before delivery or collection, or at our request, set up an irrevocable letter of credit in favour of Chesters with a bank approved by our bankers in their sole discretion.
4.2. Where we have agreed in writing to extend credit to you, and unless otherwise advised to you in writing and signed by us, you must pay in full, without deduction or setoff, by the 20th of the month following the month of issue of the invoice. Your payment is regarded as having been made only when funds have fully cleared through the banking system into our bank account.
4.3. If you do not dispute an invoice within 15 days of the date of the invoice then you acknowledge that you are liable for the total amount shown as owing on the invoice.
4.4. If you dispute an invoice then you must within 15 days of the date of the invoice provide to us the following information:
(a) the exact amount or issue that you are disputing regarding the invoice;
(b) the amount that you are agreeable to pay prior to resolution of the dispute regarding the invoice;
(c) you are required to pay the undisputed portion of the invoice on the due date as shown on the invoice.
We will attempt to resolve any such invoice dispute with you by negotiation. If the dispute is not (in our sole opinion) able to be resolved by negotiation then we are entitled to enforce our rights in accordance with the provisions as set out in these terms of trade.
4.5. If you have not paid in full by the due date, we may charge you interest compounding monthly on the unpaid overdue balance at the rate of 5% per annum above the current overdraft rate charged by our bankers, and we may charge costs (including collection costs and legal costs on a solicitor-client basis) and suspend delivery of further goods or performance of further services until the account is paid.
4.6. Payments which you make to us are able to be allocated by us as we see fit, notwithstanding any directions from you to the contrary.
4.7. Property and ownership in goods, whether in their original form or incorporated in or attached to another product, will not pass to you but will remain with Chesters until Chesters receives payment in full of the purchase price of the goods and all other amounts that you owe to Chesters for any reason.
4.8. Until property passes to you, you shall hold any goods in trust as fiduciary bailee for Chesters, and store and sell them in a manner to enable them to be identified and cross referenced to particular invoices.
4.9. Unless otherwise notified in writing, where goods are sold to you as inventory or consignment stock or otherwise for resupply (including by way of attachment to or incorporation into manufactured or assembled goods) you are authorised to sell the goods in the ordinary course of your business, but you must hold any accounts receivable or other proceeds for our benefit. If you use any money proceeds to purchase replacement inventory, whether from Chesters or a third party, you hold that replacement inventory and its proceeds as collateral for our benefit until all sums owing to us are paid.
4.10. Notwithstanding clauses 4.1 and 4.2 above, all payments shall immediately become due to Chesters if:
(a) you refuse to accept delivery of any goods without reasonable cause;
(b) you are not able to pay your debts as they fall due;
(c) you or your guarantor fail to comply with these terms or any other agreement with us;
(d) you do any act that in our opinion causes or threatens the risk, safety, condition or safekeeping of any goods we supply to you;
(e) you cease to carry on business or suffer a material adverse change which in our opinion changes your financial position or creditworthiness;
(f) we reasonably believe that the information which you or your guarantor have given us in your application for credit is not correct or no longer correct and you have failed to give us correct information within 5 days of our request,
(g) without our consent you sell or otherwise dispose of any goods which have not been paid for;
(h) you or your guarantor become insolvent or commit any act of bankruptcy;
(i) you have an application made (or resolution passed) for a receiver, administrator, liquidator or other statutory manager to be appointed;
(j) you fail to comply with any of the provisions of clause 6,
(k) you make or attempt to make an arrangement or composition with creditors.
(l) you or your guarantor indicate by notice or conduct that you and/or your guarantor no longer intend to comply with the obligations under any agreement with us.
4.11. Where you acquire “consumer goods” as that term is defined in the Credit Contracts and Consumer Finance Act 2003, from us on credit, nothing in clause 4.13 or 5.7 will limit or derogate from rights you may have under the Credit Contracts and Consumer Finance Act. Where you acquire consumer goods, we will have the right to take possession of the consumer goods if:
(a) You are in breach of any part of clauses 4, 5 or 6 of this agreement, or
(b) The goods are at risk. Goods are “at risk” if we have reasonable grounds to believe that the consumer goods have been or will be destroyed, damaged, endangered, disassembled, removed, or concealed contrary to the provisions of the agreement.
4.12 Where you acquire consumer goods and we have the right to take possession of goods, you give us the right to enter your premises to remove the goods. In exercising our rights of entry we will comply with our obligations under the Credit Contracts and Consumer Finance Act 2003.
4.13. Where Chesters reasonably believes that any collateral is at risk or that you are or will be in breach of any part of clauses 4, 5 or 6 of this agreement:
(a) Chesters or its agent may enter your premises without further notice to you or any other person, to remove any goods which are the property of Chesters, including goods which are installed in or affixed to other goods, using such force as is necessary and without prejudice to any other rights of Chesters;
(b) Chesters may appoint a receiver of all or any part of the collateral (being goods supplied by Chesters together with proceeds in any other form) in accordance with clause 25 of the Auckland District Law Society Memorandum of General Terms and Conditions 6302, as amended from time to time. That clause is incorporated into these terms of trade in its entirety, together with any other clauses necessary for its operation. Except in relation to consumer goods to which clauses 4.11 and 4.12 will apply instead of this clause 4.13.
4.14. You indemnify Chesters against all costs and claims in respect of its exercise of rights under this clause 4.
5. Retention of title
5.1. Notwithstanding any period of credit or the passing of risk in the goods supplied by us to you, ownership in any goods supplied by us shall not pass to you until the amount owing has been paid in full or until you resell the goods pursuant to the authority granted below.
5.2. We authorize you in the ordinary course of your business to use the goods or sell them for full consideration. This authority is revoked immediately if:
(a) you default in these terms and conditions; or
(b) we notify you in writing that this authority is revoked.
5.3. Until we have been paid in full for the goods:
(a) you shall hold the goods as our agent and store the goods (or any funds that you receive in payment for the goods) in such a way that it is clear that the goods are our property and so that the goods will not deteriorate;
(b) you will immediately notify us of any action which affects our interest in the goods;
(c) the proceeds of any goods you resell or use shall be received and held by you (in whatever form) in trust for both you and us. Our interest as beneficiary under that trust shall be that portion of the proceeds which does not exceed the amount owing to us. The balance of the proceeds (if any) shall be your beneficial interest under that trust.
5.4. You irrevocably give us license, without the necessity of giving any notice to enter all premises at which we on reasonable grounds believe the goods to be stored or located, to inspect, remove, or repossess any goods supplied by us and not paid for by you. We shall not be liable for costs, damages or expenses or any other moneys or losses suffered by you or any third party as a result of this action. You hereby indemnify us and agreed to keep us indemnified for any liability we suffer as a result of such actions.
5.5. We may bring an action for the amount owing on the goods that you have sold despite the fact that ownership in such goods may not have passed to you.
5.6. The security interest created under these terms of trade extends to proceeds of all kinds, to the value of all goods and services that we have supplied to you whether or not those goods have become accessions to other goods or processed or co-mingled into or mixed with other goods. The goods and services subject to the security interest will be described on our invoices. Where goods that we supply to you have become mixed with other similar goods supplied by other persons, you grant us a security interest in the mixed goods to the value of the goods in the mixture that we have supplied to you but which have not yet been paid for. Our security interest also covers any other amounts owing to us including enforcement costs arising from your breach of these terms of trade.
5.7. If we repossess goods under these terms, we may retain those goods or dispose of them without notice to you or any other person, and, after deducting reasonable costs of sale, we may credit any surplus by way of setoff against any sums owing to us. We shall not be obliged to furnish you with a statement of account or to pay any person other than you or your receiver or liquidator any sum in excess of the total amount you owe us at the time we credit your account. We will not be obliged to reinstate this agreement or resupply any repossessed inventory or equipment to you. This clause 5.7 is subject to any rights you may have under clauses 4.11 and 4.12.
6. Personal Property Security Act 1999 and security and charge
6.1. You grant a security interest, due to our retention of title in the goods, to us in all present goods, and all after acquired goods supplied to you or supplied on your account (if any), and under the Personal Property Securities Act 1999 (‘the PPSA”).
6.2 You agree to sign any further documents and/or provide any information that we may reasonably require to register a financing statement (or amendment) on the register for the PPSA,and meet our costs of doing so and any enforcement of such statement. To the extent permitted by law you and us agree to contract out of sections 114(1)(a), 133, 134 and 148 of the PPSA, and also the buyers rights referred to in sections 107 (a) to (l), 121, 125, 129, 131 and 132 of the PPSA.
6.3. To secure performance of your obligations, monetary and otherwise, under these terms, you and/or the guarantor (if any) now jointly, severally and irrevocably:
(a) grant a security interest to Chesters over all your estate and interest, whether such estate or interest exists now or arises in the future, in any personal property, other property, and any other asset capable of being charged; and
(b) grant a mortgage to Chesters over all your estate and interest, whether such estate or interest exists now or arises in the future, with such mortgage being deemed to incorporate the terms and conditions contained in mortgage general terms and conditions registered pursuant to section 155A of the Land Transfer Act 1952 under memorandum number 2011/4301.
6.4. In addition, both you and/or the guarantor acknowledge and agree that Chesters (or its nominee) shall be entitled to lodge a caveat on any property, for the purpose of this clause 6. Any such caveat shall be released once all payments and other monetary obligations payable under these terms have been fully paid to Chesters.
6.5. To give effect to this clause 6 you, and the Guarantor (if any) irrevocably appoint Chesters as your and/or the guarantors attorney to execute and/or register any mortgage and/or charge for the purpose of securing and exercising Chesters rights under this clause 6.
6.6. In this clause 6, the terms “security interest”, “personal property” and “other property” have the meanings given to them in the Personal Property Security Act 1999.
6.7. You authorise us to search the Personal Property Securities Register at any time for any information about you or (if you are a company) your parent or associated companies.
6.8. You agree that you will supply Chesters, within 2 business days of its written request, with copies of all security interests registered over your personal property, and you authorise Chesters as your age to request information from any secured party relating to any security interest which is held in any personal property which is or has been in your possession or control.
6.9. You agree that Chesters may require you to pay all reasonable costs, including legal costs on a solicitor client basis, associated with the discharge or amendment of any financing statement registered by Chesters, whether or not the change was initiated by you.
7. Consumer Guarantees Act 1993
7.1. Nothing in these terms of trade excludes, limits, restricts or is intended to derogate from any right or remedy which you may have pursuant to the Consumer Guarantees Act 1993, if you are a consumer as defined in the Consumer Guarantees Act 1993 acquiring the goods and services for personal use. However, the guarantees contained in the Consumer Guarantees Act 1993 are expressly excluded where you acquire the goods or services from us for the purposes of a business.
7.2. Where the goods or services that you acquire from Chesters are not of a kind ordinarily acquired for personal household or domestic use or consumption, or where you acquire, or hold yourself out as acquiring, the goods or services for the purposes of a business, the provisions of the Consumer Guarantees Act 1993 and the conditions, warranties and guarantees set out in the Sale of Goods Act 1908 or implied by law will not apply and are excluded from these terms of trade.
8. Warranties in respect of Goods
8.1. Goods are subject to the manufacturers’ warranties only. Chesters will pass on the benefit of those warranties to you, without itself being directly liable to you under any warranty.
8.2. We do not provide any warranty that the goods are fit and suitable for the purpose for which you require them and we shall not be liable if the goods are not suitable for your intended purpose.
8.3. Notwithstanding that you have advised Chesters of a warranty claim all outstanding payments to Chesters remain due and payable. We may refuse warranty assistance if any amount owing by you to Chesters is overdue.
8.4. All advice, recommendations and information in whatever form is given by us to you gratuitously and without liability by us to you.
9. Customer Warranties
9.1 If you acquire any goods or services from Chesters for re-supply as, or to incorporate or attach any goods or services acquired from Chesters into, goods or services ordinarily acquired for personal household or domestic use or consumption (“Consumer Products”) you warrant that if your customer acquires any goods or services for re-supply, your customer and each person in the distribution chain will exclude liability in its contract for supply for any claims under the Consumer Guarantees Act 1993, but in each case only where the end user/consumer acquires the Consumer Products for business purposes.
9.2 You agree to indemnify Chesters, its suppliers and manufacturers of the goods against any failure by you, your customers or any person in your distribution chain to properly contract out of liability to business end users under the Consumer Guarantees Act 1993.
10. Customer Authority
10.1. You warrant that:
(a) You are either the customer or the authorised agent of the customer; or
(b) You are authorised to accept and are accepting these terms not only personally but as agent for or on behalf of the customer; and
(c) You shall not assign all or any of your rights or obligations under these terms unless we specifically agree in writing. You shall advise us of any alteration to your entity structure and/or of any revocation of an agent’s authority to purchase. Until such written confirmation is received and specifically accepted by us in writing, you shall remain liable for any amount owing and our conduct shall not be deemed acceptance or affirmation of any assignment or revocation.
11. Personal Guarantee
11.1. In consideration of Chesters supplying and continuing to supply goods and/or services to the customer, the guarantor(s) jointly and severally guarantee and indemnify the due performance and observance of the customer’s obligations contained in this agreement with Chesters including, upon demand, the payment of all amounts owing, or which become owing by the customer to Chesters.
11.2. The guarantor(s) acknowledge as follows:
(a) this is a continuing guarantee; and
(b) being obligated to Chesters as a principal debtor; and
(c) if there is more than one guarantor then the liability is joint and several; and
(d) liability of the guarantor(s) under the guarantee shall not be affected or discharged by the granting of time or credit to the customer, or by the release, abandonment or waiver of any rights against the customer, or the liquidation or banbkruptcy of the customer; and
(e) this guarantee is in addition to and not in substitution of any other guarantee or security or other rights which we may presently have or may subsequently acquire and may be enforced without the necessity of making demand or enforcing any such other guarantees, securities, or rights; and
(f) the guarantees shall continue in full force until Chesters agree to release the guarantor(s) in writing even if:
(i) the obligations of the customer to Chesters has been fully paid, satisfied or performed; OR
(ii) our conduct of the day to day operation of the customer’s credit account (including but not limited to termination of supply, granting of credit, extension of further credit, granting of time, waiver, indulgence, neglect to sue or failure to give appropriate notice) implies that the guarantor may be released from this guarantee; OR
(iii) we release any other party from partial or total liability.
12. Limitation of liability
12.1. Chesters will not be liable for any losses of any kind or any delay in supplying goods or services which are caused in whole or in part by force majeure including (but not limited to) any act of God, declared or undeclared war, natural disaster, flood or earthquake, hurricanes, cyclones, power failure, strike, lockout, fire, war, civil commotion, network service failure, inability to obtain goods or supplies including the imposition of any export or import bans, or any other cause beyond its reasonable control. Chesters shall not be required to settle a strike or lockout or other industrial disturbance against its wishes in order to benefit from this clause. Nothing in this clause shall excuse payment of any amount owing, or which becomes owing, under these terms of trade by you to Chesters. The occurrence of a force majeure event shall not give you the right to cancel any agreement that is in place as between you and/or your guarantor and Chesters.
12.2. Subject to clause 7.1, Chesters’ liability shall be limited to the value of any defective goods or services supplied to you by Chesters, and none of Chesters, its employees, contractors and agents, any manufacturer(s) or developer of the goods, or any of their materials or components or any suppliers of services, will be liable to you for loss or damage of any kind however that loss or damage is caused or arises. This limitation of liability includes, but is not limited to, costs (including costs of returning goods to Chesters or to any manufacturer), loss of data, consequential loss, loss of contracts, loss of profits and damage caused by or arising from delays in manufacturing or delivery, faulty or delayed installation, unreasonable use, negligence (including a failure to do some thing which should have been done or to prevent something from happening), faulty specifications and design, and faulty materials or components of the goods.
13. Intellectual property rights
13.1. None of Chesters, its suppliers and manufacturers of the goods transfer any right, title or interest in any copyright, trade marks, or other intellectual property rights relating to any of the goods to you.
13.2. If you ask us to provide goods or services in relation to any design or drawing you warrant that you have permission to use that design or drawing, and you indemnify Chesters against all costs and losses of any kind, including claims from third parties, which arise as a result of your failure to comply with this clause.
13.3. This clause 13 shall survive the termination of this agreement.
14. Personal Information
14.1. Chesters will collect and use personal information that you supply for credit, administration, service and marketing purposes. In accordance with the Privacy Act 1993 you have the right of access to the collected personal information, and to ask for correction of your personal information held by Chesters.
14.2. You agree and authorise us to obtain or divulge any information about you (including adverse information) from or to any third party (including credit reporting and debt collection agencies) in the course of our business activities including credit assessment, debt collection and marketing activities.
14.3. You authorise any person or company to provide Chesters with any information it may require in response to your application for credit and/or other enquiries, and you authorise Chesters to search the Personal Property Securities Register for any information about you (or, in the case of a company) your parent or associated companies.
14.4. You have the right to choose not to receive marketing or promotional emails, faxes or mailers from us that do not relate to your orders or enquiries. You may make this request by emailing us at email@example.com, with the word “unsubscribe” in the subject line.
15. General Conditions
15.1. All goods and services are provided by us to you in accordance with these terms and any order received by us from you and/ or use of your credit account with us (if any) shall constitute acceptance of these terms.
15.2. Unless otherwise expressly agreed in writing by us, these terms:
(a) may be amended by us from time to time;
(b) apply to any additional orders received from you and contain the entire understanding and agreement between you and us;
(c) shall prevail in the event of any conflict between these terms and the provisions of any document used by you including but not limited to any invitation to tender, conditions of purchase, subcontract or head contract conditions or any other agreement with us.
15.3. The benefits and obligations of these terms of trade shall be governed by the law of New Zealand except to the extent expressly negated or varied by these terms. If any of these terms are held to be unenforceable, that term will be severed to the extent that it is invalid (and no further) and the remaining terms shall remain binding.
15.4. All the rights and remedies under these terms shall remain in full force and effect notwithstanding any neglect, forbearance or delay in enforcement by us.
15.5. It is your responsibility to keep your guarantor (if any) informed about all matters related to these terms of trade and your credit account (if any). On this basis any notice provided by us to you is deemed to have also been provided to your guarantor (if any).
15.6. Any notice provided by us to you or any guarantor, including notification of alterations of these terms of trade, shall be deemed to be delivered and received by you and your guarantor:
(a) immediately if sent to your last known email address or fax number; or
(b) three days after posting to your last known mailing address.
15.7. You agree that you will do all acts necessary and provide to us or our insurers directly within 5 days of our request, all financial information required by us in order to enable a credit risk assessment to be undertaken by either us or our insurers in regard to the granting of credit to you.
15.8 “Chesters” is defined as Chester’s Plumbing & Bathroom Centre Limited.