1.1 All Goods and Services supplied by Import Distribution Limited and its employees, contractors and agents (“IDL”) to the customer (“Customer”) are sold subject to these terms and conditions of sale (“Terms”), which may be changed by IDL in any manner and at any time. IDL will notify the Customer in writing of any such changes to the Terms. The Customer acknowledges that by purchasing any Goods and/or Services from IDL, the Customer has read, understood and accepted the Terms and agrees to be bound by the Terms. No variation, modification or substitution for these Terms is binding on IDL unless specifically accepted by IDL in writing. The parties acknowledge and agree that for the purposes of the Terms, any reference to the “Goods” means all goods and products supplied by IDL to the Customer from time to time for sale to, and purchase by, the Customer and any reference to “Services” means all services supplied by IDL to the Customer for sale to, and purchase by, the Customer.
2.1 The Customer must place orders to IDL in writing.
2.2 Orders for Goods and/or Services are subject to IDL’s approval and acceptance. Subject to the Terms, IDL will not unreasonably decline an order. All orders are subject to the availability of Goods and/or Services.
2.3 The Customer cannot cancel any order for Goods and/or Services (whether fully or in part) unless IDL has agreed in writing to the cancellation.
2.4 IDL is entitled to:
(a) Discontinue the manufacture or supply of all or any of the Goods;
(b) Add to or substitute Goods and/or Services; and
(c) Make such alterations, as it thinks fit, to the specifications, manufacture, design or packaging of the Goods, Subject to IDL giving to the Customer notice of its intention to do so.
3.1 The price payable for the Goods and/or Services ordered will be either (as applicable):
(a) Where the Customer has a trade account with IDL and IDL has provided the Customer with access to IDL’s price list, the price specified in IDL’s current price list at the time the order is placed; or
(b) In all other cases, the price specified in IDL’s quotation.
All prices for the Goods and/or Services shall be in $NZD and shall be exclusive of GST (unless otherwise stated). IDL may correct any clerical errors or omissions in any quotation, correspondence or invoice.
3.2 IDL reserves the right to vary the price list for Goods and Services. IDL will notify the Customer of any variations to the price list by emailing to the Customer notice of the change.
3.3 Where a quotation is given by IDL to the Customer for Goods and/or Services:
(a) Subject to clause 3.4, the quotation will be valid for 60 days from the date of issue and thereafter will be deemed to be withdrawn; and
(b) No variation of the quotation is permitted unless IDL has agreed in writing to the variation.
3.4 IDL reserves the right to withdraw or vary any quotation at any time before the Customer accepts the quotation in writing.
3.5 IDL reserves the right to reasonably vary the price payable for the Goods and/or Services by giving the Customer notice in writing where there has been an increase in the cost of materials or the cost of supplying or delivering the Goods and/or where any circumstances described in clause 13 of the Terms apply in respect of Goods and/or Services.
4.1 Unless IDL otherwise agrees in writing, the Customer must pay the full price for the Goods and/or Services to IDL before delivery of the Goods or supply of the Services.
4.2 Where the Customer holds a trade account with IDL and IDL has agreed in writing to supply Goods and/or Services to the Customer prior to payment, the Customer must pay the full price for the Goods and/or Services to IDL within the time period specified on the invoice from IDL. Where no time period is specified on the invoice from IDL, the Customer must pay within seven days of the date of the invoice. IDL reserves the right to require payment in full for the Goods and/or Services prior to delivery or supply.
4.3 The Customer must make all payments to IDL without delay, counter-claim, abatement, deduction or set off.
4.4 Without prejudice to IDL’s other rights and remedies, if any amounts due to IDL are not paid by the Customer by the due date for payment or the Customer breaches any other of these Terms, IDL may:
(a) Where payment is required prior to delivery, retain the Goods and/or cease performing the Services until full payment for the Goods and/or Services has been received;
(b) Suspend or terminate any trade account the Customer holds with IDL, at which time all amounts the Customer owes to IDL will become due and payable;
(c) Charge the Customer interest, payable on demand, on any overdue amounts at the rate of 5% per month, calculated daily from the due date for payment until payment is received in full;
(d) Recover from the Customer all costs incurred by IDL arising from any breach of these Terms (including, without limitation, legal costs, service costs and costs of recovering unpaid amounts).
5.1 Where IDL has accepted an order, IDL will use its reasonable endeavours to arrange supply to the Customer of the Goods and/or Services by the delivery or performance date agreed in writing between IDL and the Customer.
5.2 The parties acknowledge and agree that, except as expressly provided for under the Terms, IDL is not liable to the Customer for any failure to deliver or provide, or for any delay in the delivery or provision of, the Goods and/or Services, howsoever caused and, without limiting the foregoing, IDL is not liable for failure or refusal to supply in the following circumstances:
(a) Where payment by the Customer for Goods and/or Services ordered from IDL has not been received by IDL on the due date for payment (where payment prior to delivery is required); or
(b) Those circumstances described in clause 13 of the Terms.
5.3 IDL may, at its discretion, deliver Goods and/or provide Services by instalments. The Customer must pay for any Goods and/or Services to be delivered or provided by instalments by the due date for payment set out in these Terms regardless of whether or not all the Goods and/or Services have been delivered or performed.
5.4 Delivery of Goods shall be deemed to take place:
(a) When a Customer or its agent collects the Goods from IDL’s premises; or
(b) When IDL delivers the Goods to the Customer or to the Customer’s premises; or
(c) When the Goods are collected by a carrier for delivery to the Customer.
6. PROPERTY, RISK AND INSURANCE
6.1 IDL retains ownership of and title in all Goods supplied by IDL to the Customer until the Customer has paid the full price for the Goods and/or Services and all other amounts due and owing by the Customer to IDL.
6.2 The Customer grants to IDL a purchase money security interest in the Goods and their proceeds as security for any amounts due and owing by the Customer to IDL. The Goods subject to the security interest will be described on IDL’s invoices. IDL may allocate amounts received from the Customer in any manner that IDL determines, including in any manner that will preserve any purchase money security interest IDL has in the Goods.
6.3 The Customer undertakes to do anything IDL requires to ensure that IDL has a perfected security interest in the Goods, including signing any further documents and providing any further information that IDL reasonably requires for IDL to register a financing statement or financing change statement on the Personal Property Securities Register. The Customer undertakes to give IDL not less than 14 days’ prior written notice of any proposed change to the Customer’s names or details.
6.4 If the Customer sells the Goods prior to payment to IDL, the Customer undertakes to pay the proceeds derived from that sale into a separate bank account for the benefit and as trustee for IDL so that those proceeds remain identifiable in connection with that sale and the Goods.
6.5 The Customer waives its right to receive a copy of a verification statement in respect of any financing statement or financing change statement registered by IDL. Sections 114(1)(a), 133 and 134 of the Personal Property Securities Act 1999 (“PPSA”) will not apply and the Customer waives its rights under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA.
6.6 Any breach by the Customer of these Terms will constitute a default for the purposes of the PPSA. Without prejudice to IDL’s other rights and remedies, the Customer irrevocably grants to IDL (its agents and contractors) the right and licence to enter the Customer’s premises, without notice and without any liability whatsoever to the Customer or to any person or company claiming through the Customer, in order to repossess the Goods.
6.7 In this clause 6, the terms “security interest”, “proceeds”, “purchase money security interest” and “perfect” have the meanings ascribed to them under the PPSA.
6.8 Notwithstanding that IDL retains ownership of and title in the Goods until payment is made in full, all risk in the Goods shall pass to the Customer on delivery.
6.9 The Customer is responsible for insuring all Goods and/or Services from the time of delivery.
7.1 The Customer will inspect the Goods and/or Services on delivery and shall within three working days after delivery notify IDL of any discrepancies or other abnormalities the Customer wishes to make a claim for. If the Customer does not notify IDL within three working days after delivery, then the Customer shall be deemed to have accepted the Goods and/or Services.
8. WARRANTIES AND EXCLUSIONS
8.1 Subject to these Terms, IDL supplies the Goods and/or Services subject to:
(a) Any warranty given in respect of Goods by the manufacturer of the Goods or IDL as at the date of acceptance by IDL of any order for the Goods, for the warranty period specified in the applicable warranty’s terms; and/or
(b) Where IDL performs Services, a warranty in respect of IDL’s workmanship in the performance of the Services for a period of 12 months from the date of delivery of the Services.
The Customer must adhere to any returns claim procedure contained in IDL’s returns policy (as notified to the Customer from by IDL from time to time, including on IDL’s websites) and the Customer shall allow IDL the sole right to manage all warranty claims with any manufacturer. The Customer must give written notice to IDL within 24 hours of discovering or being notified of any defect and the Customer must provide IDL with immediate access to undertake such repairs as IDL considers necessary to remedy any defect. Subject to the Terms, IDL’s liability howsoever arising under or in connection with any breach of warranty shall be limited to either:
(a) The repair of any defect occurring during the applicable warranty period; or
(b) At IDL’s election, if IDL considers that the defect is irreparable, the replacement price of the Goods.
8.2 Except as expressly provided for under the Terms, all other warranties, descriptions, representations and conditions as to fitness or suitability for any purpose, tolerance to any condition, merchantability or otherwise whether of a like nature or not and whether expressed or implied by law, trade, custom or otherwise are expressly excluded. No agent or representative of IDL is authorised to make any representations, statements, warranties, conditions or agreements not expressly specified in the Terms and the Customer agrees that IDL is not in any way bound by any such representations, statements, warranties, conditions or agreements.
8.3 No warranty (express or implied) relating to the Goods and/or Services shall extend under any circumstances whatsoever to include:
(a) Any loss or damage not covered by any warranty given under these Terms;
(b) Any loss or damage occurring at or after the expiry of the warranty period specified in the Manufacturer’s Warranty or the warranty period specified in these Terms;
(c) Installation of Goods and/or performance of Services by any person or entity other than IDL;
(d)Faults or defects caused by the Customer’s use of the Goods including, without limitation, faults or defects caused as a result of any person or entity (other than IDL) installing, cleaning, maintaining, repairing, modifying or adding to the Goods and/or Services;
(e) Faults or defects caused by the Customer’s failure to properly maintain any Goods;
(f) Any damage to Goods after risk in the Goods passes to the Customer.
8.4 Where the Customer acquires the Goods and/or Services in trade then for the purposes of the Terms the Customer is not a consumer (as defined in the Consumer Guarantees Act 1993) and the Customer and IDL agree to contract out of the Consumer Guarantees Act 1993 and accordingly the provisions of the Consumer Guarantees Act 1993 do not apply to the Goods and/or Services. Nothing in the Terms is intended to have the effect of contracting out of the provisions of the Consumer Guarantees Act 1993 where the Customer is a consumer (except to the extent permitted by the Act) and these terms and conditions are modified to the extent necessary to give effect to that intention. All representations, descriptions, warranties or terms (including any condition or warranty expressed or implied by law, statute or otherwise) not expressly included in these terms and conditions are hereby excluded.
9. LIMITATION AND EXCLUSION OF IDL’S LIABILITY
9.1 Except as expressly provided for under the Terms, IDL’s liability whether in contract, tort (including negligence) or otherwise for any loss, damage or injury arising directly or indirectly from any defect in or non-compliance of the Goods and/or Services or from any other breach of IDL’s obligations under the Terms shall not in any event exceed an amount equivalent to the price invoiced by IDL for the faulty Goods and/or Services or the Goods and/or Services giving rise to the claim. IDL shall not be liable for any indirect or consequential loss of any kind whatsoever (including, without limitation, loss of revenue, loss of profits, failure to realise expected profits or savings and any other commercial or economic loss of any kind). IDL shall not be liable for any damages or losses caused by the Customer’s employees, agents, customers or any other persons whatsoever (whether similar to the foregoing or not). IDL shall not be liable for any damage to the Goods and/or Services due to external causes, including accident, abuse, misuse, failure to perform preventative maintenance, usage not in accordance with instructions for the Goods and/or Services in any user/manufacturer guide, manual or other directions. IDL shall not be liable for any faults, defects or damages to Goods caused by the installation, cleaning, maintaining, repairing, modifying or adding to Goods by the Customer and/or any person or entity (other than IDL).
9.2 The Customer acknowledges that the Goods and/or Services cannot be guaranteed to prevent any unauthorised entry, loss or damage to the Customer’s premises or property and the Customer acknowledges and agrees that IDL shall not be liable for any loss, damage or injury arising directly or indirectly from any unauthorised entry or action by any person to the Customer’s premises or property.
10. CUSTOMER’S LIABILITY AND INDEMNITY
10.1 The Customer warrants that it has the full authority to order or request IDL to deliver the Goods and/or perform the Services and the Customer shall be bound by all such orders and requests. Where the Customer has ordered or requested Goods and/or Services, the Customer indemnifies IDL against any claim by any third party following delivery of the Goods and/or Services by IDL.
10.2 The Customer agrees to protect, indemnify, defend and save harmless IDL absolutely from and against any and all damages, claims, losses, demands, liabilities (including vicarious liability), injuries, suits, actions, judgements, costs and expenses of any kind whatsoever (including reasonable legal fees and service costs) arising out of or in any way connected with the Customer’s breach of the Terms.
11. INTELLECTUAL PROPERTY AND CONFIDENTIAL INFORMATION
11.1 Any sale and/or supply of the Goods and/or Services shall not operate so as to transfer or vest in the Customer any trade mark, patent, copyright or other intellectual property right in the Goods and/or Services whatsoever. All applicable intellectual property rights in respect of the Goods and/or Services remain IDL’s or the applicable licensor’s or manufacturer’s property and the Customer may not use, reverse engineer, interfere with or alter the intellectual property rights in any way.
11.2 If the Customer has been provided with a login, username and password for any of IDL’s websites, or if the Customer has been provided with access to IDL’s price list or if the Customer has access to IDL’s restricted access trade areas on IDL’s website (together the “Confidential Information”), the Customer must keep confidential all Confidential Information and must not disclose or distribute any Confidential Information to any person or entity, including, without limitation, to any of the Customer’s employees, unless IDL has authorised in writing any disclosure of Confidential Information to any person or entity. The Customer indemnifies IDL for any damages, losses, liabilities, costs or expenses IDL sustains or incurs arising from the Customer’s unauthorised use or disclosure of the Confidential Information. IDL reserves the right to terminate the Customer’s login or account at any time.
12. CUSTOMER’S INFORMATION AND PRIVACY
12.1 The Customer irrevocably authorises:
(a) Any person or entity to provide IDL such information as IDL may require in response to any credit inquiry in relation to the Customer;
(b) IDL to collect, retain and use any information about the Customer for the purposes of assessing the Customer’s creditworthiness, marketing products and services to the Customer, assessing the Customer’s use of IDL’s websites and/or undertaking market research and statistical analysis;
(c) IDL to disclose information about the Customer, whether collected by IDL from the Customer directly or obtained by IDL from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer and/or to any person or entity for the purposes of undertaking market research and statistical analysis.
12.2 Where the Customer is an individual the Customer has the right to access any of the Customer’s personal information held and readily retrievable by IDL and the right to request IDL to correct any incorrect information about the Customer held by IDL.
13. FORCE MAJEURE
13.1 Neither party shall be liable for any breach under the Terms in the event of force majeure which means any failure or delay in supply or delivery which is caused by strike, industrial dispute, natural disaster, shortage or unavailability of stocks of Goods or raw materials, shortage of labour for performance of the Services, lack of skilled labour for performance of the Services, failure of any supplier to supply goods, delay in transit, import restrictions placed on IDL, legislative governmental or other prohibition or restriction placed on IDL, fire, flood, hostilities, commotions or other causes whatsoever (whether similar to the foregoing or not) beyond the parties’ reasonable control.
14.1 Either party may terminate these Terms with immediate effect if the other party:
(a) Is in breach of these Terms;
(b) Becomes insolvent, fails to pay its debts as they fall due, ceases to carry on business or a resolution is passed or proceedings have commenced to have the party would up or a receiver, statutory manager, liquidator or any other administrator is appointed in respect of the party or any of its assets.
14.2 Without prejudice to IDL’s other rights and remedies, in the event of termination of these Terms pursuant to clause 14.1 the Customer shall pay IDL immediately all amounts due and owing by the Customer to IDL.
15.1 The Terms shall be governed by and construed in accordance with the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand Courts.
15.2 Except where otherwise agreed in writing, the Terms set out the entire agreement and understanding between the parties in relation to the subject matter of the Terms and merges all prior discussions between them and neither of the parties will be bound by any conditions, warranties or representations regarding the subject matter of the Terms other than as expressly provided in the Terms.
15.3 The Customer agrees to protect, indemnify, defend and save harmless IDL absolutely from and against any and all damages, claims, losses, demands, liabilities (including vicarious liability), injuries, suits, actions, judgements, costs and expenses of any kind whatsoever (including reasonable legal fees) arising out of or in any way connected with the Customer’s breach of the Terms.
15.4 Notices in writing must be addressed to the other party and delivered by hand or by receipted delivery system.
15.5 Any waiver or failure to execute any rights by IDL shall not be deemed to be a waiver of any further or other right of IDL in respect of the Customer. No waiver is effective unless it is in writing.
15.6 No party may assign its rights or obligations under these Terms without the other party’s consent.
15.7 Each and every covenant, obligation or restriction in the Terms and each part of them is deemed a severable and independent covenant, obligation and restriction. In the event of the invalidity of any covenant, obligation and restriction of the Terms such invalidity will not affect the enforceability of any other covenant, obligation and restriction of the Terms.