Terms of Trade
1. By requesting the Company to supply Goods to the Customer or to provide Services to the Customer, the Customer acknowledges and agrees (or is deemed to acknowledge and agree) that:
1.1 the Customer’s written assent or agreement to the Company’s terms and conditions of trade (the ‘Terms’) forming part of each Contract (as evidenced by the Customer’s signature on the Company’s credit application form or any other document which incorporates these Terms) is and constitutes a security agreement providing for both future advances and a security interest in favour of the Company in all of the Customer’s present personal property and after-acquired property, but that these Terms do not apply to property not supplied by the Company; and
1.2 the Terms will apply to each Contract and the supply of Goods by the Company to the Customer and/or the provision of any Services under the Contract; and
1.3 the Terms will be or are deemed to be incorporated into, and form part of, each Contract, as if these Terms were set out or implied therein in full; and
1.4 each Contract will create or creates, in favour of the Company, a security interest in the Goods which are the subject of the Contract; and
1.5 the security interest granted by the Customer to the Company secures the payment by the Customer to the Company of all amounts the Customer may owe the Company from time to time and at any time.
2.1 In these Terms:
2.1.1 ‘Amount Owing’ means, at any time in respect of the Contract, the unpaid part of the Price and any other amounts which the Company is entitled to recover under the Contract (including these Terms);
2.1.2 ‘Company’ means Lifestyle Lawns NZ Limited (NZBN. 9429049708226) trading as Lifestyle Lawns, as the context requires;
2.1.3 ‘Contract’ means any contract between the Company and the Customer for the supply of Goods and/or the provision of Services, whether created by electronic mail, order form, telephone or by any other means;
2.1.4 ‘Contract Date’ means:
188.8.131.52 for a Contract arising from an order placed by the Customer, the date the Company accepted the order in writing;
184.108.40.206 for a Contract arising from a quotation from the Company, the date the Company receives written notification of acceptance of the quotation or, if the Company receives no written notification of acceptance of the quotation, the date the Company receives a form of acceptance that the Company (in its absolute discretion) treats as a valid acceptance;
2.1.5 ‘Customer’ means the person(s) described or referred to on the credit application form which these Terms form part of or (if applicable) the person(s) identified as such on any document which incorporates these Terms;
2.1.6 ‘Event of Default’ means any of the following:
220.127.116.11 the Customer fails to comply with the Contract or any other contract or agreement with the Company;
18.104.22.168 the Customer is subject to any event which is in the nature of dissolution, winding up, bankruptcy, liquidation, administration, statutory management, insolvency or receivership, or which generally precedes such an event;
22.214.171.124 an event occurs or information becomes known to the Company, which in the Company’s opinion, might materially affect the Customer’s credit worthiness, the value of the Goods, or the Customer’s ability or willingness to comply with its obligations under the Contract any other contract or agreement with the Company;
126.96.36.199 any guarantor of the Customer’s obligations under the Contract is in default under any agreement between the guarantor and the Company;
2.1.7 ‘FIS Contract’ means a Contract under which Goods are delivered on a ‘free in store’ basis;
2.1.8 ‘Goods’ means all goods supplied by the Company to the Customer from time to time under the Contract, provided that:
188.8.131.52 (but solely for the purposes of the application of the PPSA) where the goods supplied are inventory of the Customer, then all references to Goods shall, in respect of those goods, be read as references to inventory for so long as they are held as inventory;
184.108.40.206 references to Goods shall mean the goods described or referred to (whether by item or kind or otherwise) in the relevant delivery docket or invoice (or its equivalent, whatever called) prepared by the Company on the basis that each such delivery docket or invoice (or its equivalent) is deemed to be assented to by the Customer and to be included in and form part of the Contract; and
220.127.116.11 unless the context requires otherwise, Goods shall include all proceeds of such goods and any objects, products or mass which the goods subsequently become part of;
2.1.9 ‘GST’ means Goods and Services Tax;
2.1.10 ‘person’ includes a body corporate, an association of persons (whether corporate or not), firm or individual;
2.1.11 ‘PPSA’ means the Personal Property Securities Act 1999.
2.1.12 ‘Price’ means the price of Goods and/or any Services agreed between the Company and the Customer, subject to any variation in accordance with these Terms and, unless specifically agreed otherwise in writing, is expressed before the addition of GST, any other applicable taxes and duties. Where payment of the Price is made by credit card, the Price is expressed before the addition of any applicable credit card payment fee.
2.1.13 ‘Product Warranty’ means a written warranty provided by the Company in relation to the Goods and/or any Services provided to the Customer from time to time.
2.1.14 ‘Services’ means all services provided by the Company to the Customer from time to time under a Contract.
2.2 Headings do not affect the interpretation of these Terms.
2.3 Unless the context requires otherwise, the following words and phrases (and grammatical variations of them) used in these Terms have the meanings given to them in, or by virtue of, the PPSA: ‘after-acquired property’, ‘at risk’, ‘financing statement’, ‘future advance’, ‘goods’, ‘inventory’, ‘perfection’, ‘personal property’, ‘proceeds’, ‘purchase price’, ‘security agreement’, ‘security interest’ and ‘verification statement’.
2.4 A reference to an enactment includes that enactment as amended or substituted and includes any regulations made under that enactment.
2.5 A reference to any party under these Terms includes that party’s successors and permitted substitutes and assigns.
3. PRICE AND PAYMENT
3.1 The Price is the Company’s current price for the Goods and/or any Services as at the Contract Date or (if applicable, and subject to clauses 4 and 5) the Price quoted by the Company. Any difference between the price of the Goods at the Contract Date and at the date of delivery, due to circumstances beyond the Company’s control, is to the Customer’s account and the Price shall be adjusted accordingly.
3.2 Where the Customer requests the Company to estimate the quantity of the Goods to be supplied from sketches, plans, schedules, specifications or otherwise, the Customer agrees to pay for any variation between the estimate and the actual quantities supplied and the Contract shall be deemed to be adjusted accordingly.
3.3 Where the Price is quoted on a FIS basis:
3.3.1 the Price includes all expenses necessary for the Company to deliver the Goods to the delivery site noted in the Contract;
3.3.2 the Price includes the cost of processing of Goods;
3.3.3 unloading of the Goods at the delivery site is to the Customer’s account;
3.3.4 the Customer will arrange for unloading of the Goods at the delivery site within 30 minutes of the carrier arriving on-site; otherwise, waiting time may be charged by the Company;
3.3.5 the Customer will ensure at its own expense that a reasonably safe and hard surface road or access-way is made available for use by the Company’s carrier.
3.4 Payment for the Goods and/or Services will be made on the terms contained in the Contract. If not otherwise specified in the Contract, the Customer shall pay for the Goods and/or Services on the 20th of the month following receipt of an invoice (time being of the essence).
3.5 An invoice will be issued by the Company for the supply of Goods on delivery or proof of shipment and for the provision of Services on completion of the Services to which the invoice relates. If the Company is required by law to repay any amount on account of the Price, that amount will be deemed not to have been received by the Company and the Company shall be restored to the position it would have been in had no such payment been received by the Company.
3.6 The Company may, at any time, require the Customer to:
3.6.1 pay some or all of the Price in advance of the scheduled payment date;
3.6.2 pay some or all of the Price by letter of credit or bank transfer; and/or
3.6.3 secure payment of some or all of the Price by providing an assignment of debt, lien, mortgage, charge, guarantee or any other form of security.
3.7 The Company shall, without prejudice to any other remedy available to it at law, be entitled to treat any failure to make payment on the due date as a repudiation of the Contract by the Customer. In no event shall the Company be obliged to make any delivery of Goods or provide Services if an Event of Default has occurred.
3.8 All expenses, costs, fees and disbursements incurred by the Company in recovering the Price and any other amounts payable under these Terms shall be recoverable from the Customer as part of the Price.
3.9 The Price will be stated before the addition of any applicable credit card payment fee. Where the Customer choses to make payment under the Contract using credit card the Customer will also pay the applicable credit card payment fee if required by the Company.
4.1 A quotation by the Company is based on the current price for the Goods and any Services (based on the Company performing the work during normal working hours) and subject to availability from the Company’s usual source of supply as at the date of the quote and shall not be binding on the Company unless the Customer has accepted the Company’s quote within 30 days from the date of the Company’s quote (time being of the essence).
4.2 The Company shall not be responsible for any errors or omissions caused by the mutilation or incorrect transmission contained in a facsimile message, electronic mail, mobile message, telephone or other means of transmission in which the Customer has accepted the Company’s quote.
5.1 Any requested variation to the Goods or work covered by the Company’s quotation must be notified in writing by the Customer. If the Company agrees in writing to such variation, the Company’s quotation and the Price will be adjusted accordingly. If a variation is agreed after the Contract is formed, the Contract and the Price will be adjusted accordingly.
5.2 The Price will be adjusted to reflect any extra cost or expense incurred by the Company because of any instruction received from the Customer or any action or inaction on the part of the Customer.
6.1 These Terms shall be read subject to the express terms and conditions contained in the Company’s quotation, confirmation of order. The Contract is subject to the Company having the Goods in stock and subject to availability from the Company’s usual source of supply.
6.2 To the extent permitted by law, all other conditions, warranties, guarantees, descriptions, representations, conditions as to fitness or suitability for any purpose, tolerance to any conditions, merchantability, appearance, safety, durability or otherwise (whether of a like nature or not) and whether express or implied by law, trade custom or otherwise, are expressly excluded.
6.3 If there is a conflict between the Customer’s order and the Company’s confirmation of order (including these Terms), the Company’s confirmation of order (including these Terms) will prevail.
6.4 An agent or representative of the Company is not authorised to make any representations, warranties or agreements that a senior executive of the Company has not confirmed in writing. The Company is not bound by unauthorised statements. Unauthorised statements cannot form a contract, or part of a contract, collateral to the Contract.
6.5 The rights, powers and remedies provided for in the Contract (including these Terms) are in addition to, and do not limit or exclude (or otherwise adversely affect), any right, power or remedy provided to the Company by law.
6.6 The Customer’s obligation to pay amounts (other than the Price) to the Company under these Terms shall be continuing and separate obligations which will survive termination of the Contract and payment of the Price.
7. TAXES AND DUTIES
7.1 Unless expressly included in the quotation from the Company, the Price will be stated before the addition of GST and any other taxes and duties charged or levied in connection with the supply of the Goods and any Services to the Customer. GST and all such other taxes and duties will be charged to and borne by the Customer (in each case, at the rate applicable at the date of any relevant invoice).
8. DEFAULT INTEREST
8.1 The Company may charge the Customer Default Interest on any moneys due but unpaid under the Contract which will be calculated on a daily basis at a rate of 3 per cent per month. The Default Interest is payable from the date payment is due until the date the Company receives payment. The Company’s right to charge Default Interest is without prejudice to any of the Company’s rights, powers or remedies arising after the Customer’s payment default.
9.1 Delivery of the Goods will be made at the Customer’s premises unless the Customer has instructed otherwise in the relevant order. If the Customer fails to take delivery, the Goods are deemed to have been delivered when the Company was willing to deliver them and the Customer shall pay the Company an amount equal to any extra cost the Company incurs for either transport or storage or both.
9.2 Estimated delivery dates and times are estimates only and the Company accepts no responsibility for delay in delivery howsoever caused.
9.3 Delivery is deemed to occur:
9.3.1 for a FIS Contract, when the Goods are ready and available for unloading at the delivery point noted in the Contract or the site designated by the Customer; or
9.3.2 in any other case, when possession of the Goods is taken by the Customer.
9.4 The Company may deliver Goods by instalments. Each instalment is deemed to be a separate contract on the same terms as the Contract. If the Company fails to deliver, or makes defective delivery of, one or more instalments, the Customer is not entitled to cancel the Contract.
9.5 If the Customer requests delivery to be made outside of the Company’s normal working hours, the Customer shall pay to the Company an amount equal to any extra cost the Company incurs in connection with this request.
10.1 All risk in and for the Goods passes to the Customer on the earlier of:
10.1.1 delivery by the Company; or
10.1.2 when possession of the Goods is taken by the Customer.
10.2 If any of the Goods are damaged or destroyed prior to property in them passing to the Customer, the Company is entitled, without prejudice to any of its other rights or remedies under the Contract (including the right to receive payment of the Price), to receive all insurance proceeds payable for the Goods. This applies whether or not the Price has become payable under the Contract.
10.3 The production of the Contract (including these Terms) by the Company is sufficient evidence of the Company’s right to receive the insurance proceeds without the need for any person dealing with the Company to make further enquiries.
11.1 Property in, ownership of and title to the Goods shall not pass to the Customer until:
11.1.1 the Customer pays the Amount Owing in full and all other amounts owing under this Contra ct and any other Contracts; or
11.1.2 (if applicable) the Customer resells the Goods pursuant to the authority granted by these Terms.
11.2 Until property in Goods passes to the Customer, the Customer holds the Goods as the Company’s bailee and, as agent for the Customer, the Company (and its employees and agents) may, without prior notice, enter upon any land or premises where the Company believes the Goods are kept in order to inspect the Goods. The Customer must store the Goods so they can be identified separately from the Customer’s own goods. The Company authorizes the Customer, in the ordinary course of the Customer’s business, to use the Goods or resell them for full consideration. This authority is revoked immediately if:
11.2.1 an Event of Default occurs; or
11.2.2 the Company notifies the Customer in writing that this authority is revoked.
12. RETURN OF GOODS
12.1 Except as provided in this clause 12, the Customer is not entitled to return the Goods to the Company for any reason.
12.2 For defective Goods which the Customer is entitled to reject, the Company’s liability is limited to either (at the Company’s discretion) repairing or replacing the Goods in accordance with its Product Warranty from time to time, or refunding the Price provided that:
12.2.1 the Customer must notify the Company within 7 days of delivery that the Goods are defective;
12.2.2 the Company is given a reasonable opportunity to investigate the Customer’s claim;
12.2.3 the Company will not be liable for Goods which have been tampered with or modified without the Company’s approval or which have not been stored or used in a proper manner; and
12.3 the Company will not be liable to pay the Customer any amount more than the amount (if any) the Company actually receives from the supplier for the defective Goods.
12.4 The Company may (in its discretion) accept the Goods for credit but this will incur a handling fee of such amount as the Company may determine (and notify to the Customer) and the amount of any credit will be less any freight costs.
13.1 The Company will not be liable for:
13.1.1 failure to deliver the Goods or provide the Services by a specified date (including any dates set out in any order);
13.1.2 an event beyond the Company’s control; failure of the Goods however so arising;
13.1.3 testing the Goods;
13.1.4 deterioration of the Goods due to exposure to the elements after delivery;
13.1.5 any negligence, misrepresentation or other act or omission by the Company or its agents; or
13.1.6 any loss or damage resulting directly, or indirectly, from any of the above.
13.2 Despite anything else, any liability of the Company arising under the Contract will not exceed the value of the Goods or Services in relation to which the liability has arisen.
13.3 The Company will not be liable for any loss, cost or expense incurred by the Customer arising in connection with the Goods or Services not being suitable for the purpose intended by the Customer, regardless of whether or not the Customer made the Company aware of that purpose. In selecting the Goods and Services, the Customer relies entirely on its own skill and judgment.
14.1 If an Event of Default occurs, and without prejudice to any other rights, powers or remedies the Company may have:
14.1.1 the Company may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the Contract (and any other Contract), or cancel all or any part of any order with the Customer which remains unperformed;
14.1.2 all Amounts Owing under each Contract immediately
become due and payable not withstanding that the due date for payment has not arisen; and
14.1.3 the Company may enforce any security interest granted to it by the Customer.
14.1.4 The Company will not be liable to the Customer for any loss or damage the Customer suffers because the Company exercises any rights, powers or remedies after the occurrence of an Event of Default, including under this clause.
14.1.5 The Customer agrees that, at any time after an Event of Default has occurred or at any time if any Goods are at risk, the Company may:
18.104.22.168 take possession of any Goods; and/or
22.214.171.124 sell or dispose of any Goods in such manner and generally on such terms and conditions as the Company thinks fit, and, in each case, otherwise do anything the Customer could do in relation to the Goods.
14.2 The Company and the Customer agree that section 109(1) of the PPSA is contracted out of in respect of particular Goods if and only for so long as the Company is not the secured party with priority over all other secured parties in respect of those Goods.
14.3 As agent for the Customer, the Company (and its employees and agents) may, without prior notice, enter upon any land or premises where the Company believes the Goods are kept in order to take possession of and/or remove them. The Customer agrees to procure all other rights (including consents) necessary to enable, and to indemnify the Company (and its employees and agents) against any liability incurred in connection with, such entry, taking of possession and removal.
15. PATENTS AND COPYRIGHT
15.1 Copyright in all drawings, specifications and other technical information provided by the Company concerning the Contract is vested in the Company.
15.2 If the Goods are to be supplied to the Customer’s design, the Customer warrants that the manufacture and supply of the Goods by the Company will not infringe any patent, copyright, registered design or other rights of any other person.
15.3 The Customer agrees to indemnify the Company against any liability it incurs (including any costs and expenses) as a result of any claim that the manufacture or supply of the Goods by the Company infringes any patent, copyright, registered design or other rights of any other person.
16. DIMENSIONS AND SPECIFICATIONS
16.1 Dimensions and specifications referred to in the Contract, a catalogue or other publication (whether online or in physical form) maintained or issued by the Company are estimates only. Unless the Company agrees in writing, it is not a condition of the Contract that the Goods will correspond precisely with the dimensions, specifications or customary tolerances. In the absence of customary tolerances, reasonable tolerances will be allowed.
17. CONSUMER GUARANTEES ACT 1993 (‘CGA’)
17.1 If the Customer is not a consumer as defined in the CGA or the Customer acquires or holds itself out as acquiring the Goods or Services under the Contract for the purposes of a business, nothing min the CGA will apply to the supply of the Goods or Services.
17.2 In the case of any Customer (to which clause 17.1 does not apply), the provisions of the Contract (including these Terms) will only apply to the extent that such provisions do not limit or exclude any provisions of the CGA and will take effect subject to the provisions of the CGA.
18.1 To the extent permitted by law, the Customer and the Company contract out of:
18.1.1 section 114(1)(a) of the PPSA; and
18.1.2 Customer’s rights referred to in sections 107(2)(c),(d),(h) and (i) of the PPSA.
18.2 The Customer waives its right to receive a copy of any verification statement in respect of any financing statement relating to any security interest granted to the Company by the Customer.
18.3 The Customer agrees to indemnify the Company, upon demand, for all costs and expenses (including legal fees) incurred by the Company:
18.3.1 as a result of the occurrence of an Event of Default (including upon actual or attempted enforcement of any security interest granted to the Company by the Customer); and
18.3.2 in complying with any demand made under section 162 of the PPSA.
18.4 On the request of the Company, the Customer shall promptly do all things (including signing any delivery docket and/or invoice) and provide all information necessary to enable the Company to perfect and maintain the perfection of any security interest granted to the Company by the Customer (including by registration of a financing statement).
19. WAIVER AND SEVERABILITY
19.1 All the rights, powers, exemptions and remedies of the Company remain in force despite any neglect, forbearance or delay in enforcing them. The Company will not be considered to have waived any right, power, remedy or condition unless the waiver is in writing under signature of either the Company or an authorized officer. The waiver applies only in a particular transaction, dealing or matter unless the Company agrees otherwise.
19.2 If any part of the Contract (including these Terms) is held by any court to be illegal, void or unenforceable, such determination shall not impair the enforceability of the remaining parts of the Contract (including these Terms) or any other Contract.
20. COMPLIANCE WITH LAWS
20.1 The Company will comply with all legislation, codes and standards specified in the Contract and the Company is under no liability for a failure to meet any other legislation, codes or standards. If, after the Contract Date, there are any changes in any legislation, codes or standards with which the Company must comply, then the Customer agrees to reimburse or pay to the Company an amount equal to any additional costs incurred by the Company relating to such compliance.
21. ASSIGNMENT AND CHANGE OF NAME ETC.
21.1 The Customer may not assign any of the Customer’s rights or obligations under the Contract without the Company’s prior written consent.
21.2 The Company may assign any of the Company’s rights under the Contract without the Customer’s consent.
21.3 The Customer must give the Company (addressed to the Company Secretary) not less than 14 days’ prior written notice of any proposed change in the Customer’s name and/or any other change in the Customer’s details (including, but not limited to, changes in the Customer’s address, email address, facsimile number, trading name or business practice).
22. PRIVACY STATEMENT
22.1 The Company may collect, retain and update information about the Customer which the Company gathers through the supply of Goods and provision of Services to the Customer. The Company may use this information for purposes connected with:
22.1.1 Providing and marketing the Company’s existing and future products and services to the Customer;
22.1.2 Keeping the Customer informed of opportunities and
22.1.3 developments in areas or activities that the Company believes the Customer may be interested in.
22.2 The Company may provide overall statistics about the Company’s business, demand for relevant products and services and information relating to the sale of goods and services to third parties. Such statistics will not include any personal information which identifies any individual Customer.
22.3 Where the Company holds personal information about an individual associated with the Customer, that individual is entitled to request the correction of their personal information. If such an individual wishes to check the personal information that the Company may have collected and holds about them please contact the Company.
23. TRUSTEE LIABILITY
23.1 If the Customer is a trust, the Contract will bind each trustee of that trust and each trustee personally. The Company’s rights against each trustee will only be limited if the trustee is an independent trustee (not being a trustee who has a right or interest in any of the assets of the trust except in the trustee’s capacity as trustee of that trust). The liability of an independent trustee shall be limited to the assets of the trust. However, this shall not affect the liability of an independent trustee who has guaranteed, in his or her personal capacity, the Customer’s obligations under the Contract.
24. REVIEW OF TERM
24.1 The Company reserves the right to review any of these Terms at anytime and from time to time. If, following any such review, there is any change to these Terms that change will take effect from the date on which the Company gives notice to the Customer of such change.
25. TWO OR MORE CONTRACTS
25.1 Where, at any time, there is an Amount Owing under two or more Contracts, the Company may apply a payment made by the Customer under the Contract in such manner (including in such order and to any amounts owing to the Company, including under another Contract) as the Company thinks fit (despite any direction to the contrary and whether before or after any default by the Customer). The security interest provided for by these Terms and created by the Contract also secures the Amount Owing under any other Contract, and each Contract (and these Terms) shall be construed accordingly.
26. GOVERNING LAW
26.1 The Contract and these Terms are governed by the law of New Zealand.