In these Terms and Conditions of Sale:
CGA means the Consumer Guarantees Act 1993 (if applicable);
Customer means the person placing an order to purchase Goods from NZCG or with whom NZCG enters into a contract for supply of Goods;
Goods means any beds and bedding products, foam, flooring underlay, furniture and fibre and other goods that NZCG agrees to supply to Customer and includes if applicable any agreed associated services;
NZCG means New Zealand Comfort Group Limited and its successors and assigns;
PPSA means Personal Property Securities Act 1999 (if applicable);
Terms means these terms and conditions of supply (as amended from time to time); and
Working Day means any day excluding Saturdays, Sundays and statutory public holidays in Auckland, New Zealand.
2) AGREED TERMS
a) All orders for Goods are subject to these Terms. No variation, modification or substitution to these Terms (even if included in or referred to in Customer’s order) will be binding on NZCG unless expressly issued or accepted by NZCG in writing.
b) NZCG may amend these Terms by notice to Customer and the amended Terms will only apply to quotes given, and to orders placed by the Customer, after the date of the notice (or a later date if specified in the notice). Unless otherwise agreed, Customer’s placement of an order after such amendments are notified confirms Customer’s acceptance of the Terms as amended.
a) An order placed by Customer may not be cancelled or changed by the Customer later than 1 Working Day after placement except that a special or custom order or an urgent order may not be cancelled without NZCG agreement.
b) NZCG is under no obligation to accept any order for supply to Customer, or to offer or accept an order for any particular range of products or for any products. If NZCG does not accept an order it shall use all reasonable efforts to notify the Customer no later than 2 Working Days after placement.
c) NZCG reserves the right to specify at any time the minimum order value/volume that it is prepared to accept and may impose a surcharge orders under the minimum.
a) The price is set out in NZCG’s price list provided to Customer from time to time, in any applicable written quotation, or as otherwise agreed in writing. Where Customer’s order refers to an incorrect price NZCG may amend the order to reflect the applicable list, quoted or agreed price and recover any underpayment.
b) NZCG may notify Customer of any revision to its prices from time to time however any price change will not apply to accepted orders or to current quotations that have not expired or been withdrawn.
c) A quotation expires on the date specified in the quotation or, if no date is specified, 21 Working Days after the date of the quotation (unless extended by NZCG in writing). A quotation may be withdrawn by NZCG prior to acceptance and any order placed is subject to clause 3(b).
d) The price is exclusive of freight costs unless otherwise agreed and exclusive of New Zealand Goods and Services Tax (GST). Freight and GST will be added to the invoice if applicable.
e) If Customer is required by law to make any deduction or withholding from any amount payable to NZCG, the amount payable will be increased to the extent necessary to ensure that, after making the deduction or withholding, NZCG receives and keeps a net amount equal to the amount which NZCG would have received and retained if the deduction or withholding had not been made.
5) DELIVERY and RISK
a) Delivery occurs when the Goods arrive at Customer’s site or other agreed delivery location stipulated in the order confirmation and are ready for unloading (or if delivery is at NZCG’s site, when ready for loading on Customer’s transport).
b) Customer must provide personnel, equipment and facilities for the efficient receipt, safe and prompt unloading of delivered Goods.
c) The delivery date is a reasonable estimate only and NZCG reserves the right to despatch orders in whole or by instalments prior to the delivery date or within a reasonable time thereafter. NZCG will not be liable to Customer for any loss, damage, cost or expense arising in any way from any delay in delivery.
d) All Goods shall be at the risk of Customer from the time NZCG delivers the Goods to Customer or Customer’s agent. Customer must insure the Goods from delivery.
e) NZCG is not obliged to accept any claims for damaged Goods, or for loss or short delivery unless the carrier’s consignment note or waybill is endorsed at the point of delivery. Where the damage or loss is not reasonably identifiable at the time of delivery then in any event the claim must be made in writing with full particulars and lodged with NZCG within seven (7) days of delivery.
a) Unless NZCG has agreed in writing to extend credit to the Customer, Customer must pay for the Goods and associated costs in full on placement of Customer’s order and NZCG is under no obligation to commence manufacture or deliver the Goods until such time as that payment is received in full in cleared funds.
b) Where NZCG has agreed in writing to grant Customer an approved credit account, payment for the Goods is due in accordance with the agreed credit terms which include (unless otherwise agreed in writing) that payment must be on the 20th of the month following the date of invoice to the Customer.
c) All payments due to NZCG are to be made in full on the date due without deduction whatsoever (including by way of set off, counterclaim, or equitable claim).
d) Payment is to be made by bank direct credit to the bank account of NZCG as notified in writing by NZCG from time to time.
e) NZCG may in its sole discretion agree to accept payment by way of Visa or Mastercard card subject to Customer meeting the card service fee (currently 1.75%). NZCG may from time to time notify a variation of this rate to reflect changes in NZCG’s costs associated with the provision of such payment method. If NZCG agrees to accept any other form of card or payment NZCG may charge the service fee applicable to that card or form of payment.
f) If any payment is declined or reversed by Customer’s bank or card provider Customer will still be liable to pay NZCG in cleared funds the amount due by the due date for payment. Customer must also pay on demand all fees and charges incurred by NZCG arising from such decline or reversal. Any discounts or benefits based on payment by the due date shall cease to apply.
g) Where NZCG has granted Customer credit, NZCG nevertheless reserves the right at any time in its sole discretion to cancel any order, re-evaluate the payment terms including withdrawal of credit, require full or partial payment, or receive adequate assurance of Customer’s performance of its obligations under this agreement.
h) NZCG may in its sole discretion from time to time elect to offer a discount for early settlement of an invoice. If made, any such offer will apply only to the amount due on that specific invoice and be subject to Customer not having any other invoices outstanding beyond their due date at the time of claiming the discount, and subject to and entirely conditional upon NZCG receiving payment of that invoice in full in cleared funds (less only the validly deducted early settlement discount) by the due date for payment of that invoice.
7) LATE PAYMENT
If payment is not received in full in cleared funds by NZCG by the due date for payment then:
i) Customer shall pay interest on the outstanding amount at the rate of 1.5% per month, accruing on a daily basis from the due date for payment, with interest continuing to accrue both before and after judgment;
ii) Customer shall pay all NZCG’s costs and expenses (including legal costs determined as between solicitor/own client and mercantile agents fees) which may be incurred in the recovery or attempted recovery of the overdue amounts from the Customer;
iii) NZCG may review, amend or cancel any rebates, discounts or incentives that may otherwise be available to the Customer; and
iv) NZCG may without notice, suspend or cancel any further orders or delivery to Customer until Customer has made payment in full or may terminate this agreement with Customer.
a) NZCG will only accept return of Goods (“Returns”) with prior authorisation.
b) Where Customer wishes to return the Goods NZCG may in its sole discretion decline to accept such returns or agree to accept such returns. A restocking fee may be charged.
c) All Goods that NZCG has agreed to accept for return will only be credited if they are returned at Customer’s cost and risk and:
i) in original packaging, in new condition;
ii) accompanied by documentation showing:
• Customer name, address and account number;
• NZCG invoice number;
• Reason for return;
• NZCG authorization number (RMA number)
d) If NZCG authorises the return of Goods, the Goods must be carried by NZCG’s nominated carrier at Customer’s cost and risk, unless otherwise agreed.
If the Customer:
i) breaches these Terms;
ii) defaults in any payment on the due date;
iii) (if an individual commits) an act of bankruptcy;
iv) (if an incorporated company), passes an effective resolution for its liquidation or a Court makes an order to that effect or an application is made of its liquidation or has appointed a receiver or receiver and manager;
v) becomes unable to pay its debts as they fall due or suspends payment to its creditors; or
vi) if the Goods are “at risk” (as that term is defined in the PPSA),
vii) all amounts owed to NZCG (whether then due or not) shall become immediately due and payable to NZCG without further notice or demand;
viii) NZCG may cancel any order or contract (so far as it remains unperformed) wholly or in part, or any other contract which has not been completed; and/or
ix) NZCG may repossess and sell the Goods and may enter into any premises where the Goods may reasonably be expected to be held at any time for that purpose.
a) The Goods delivered may have minor variations to the specification as ordered as a result of changes to the manufacturing process or specifications. Early or delayed delivery, or minor variations in the specification is not a breach and will not entitle Customer to terminate the order, refuse delivery, withhold payment or other remedy.
b) Without limiting any other provision of this agreement, NZCG reserves the right, irrespective of whether or not an order has been accepted, to withhold supply and will not be liable for loss or damage resulting directly or indirectly from such action where:
i) NZCG has insufficient Goods to fulfil the order;
ii) the Goods ordered have been discontinued;
iii) any licence held by NZCG applicable to the Goods is restricted, suspended, terminated or ceases for any reason.
c) To the fullest extent permitted by law, where NZCG is liable to Customer under or in connection with any order (whether in contract, tort or otherwise), NZCG’s liability shall be limited to (at NZCG’s sole discretion) to:
i) the replacement of the goods or the supply of equivalent goods;
ii) the repair of goods
iii) the payment of the costs of replacing the goods or of acquiring equivalent goods; or
iv) the payment of the costs of having the goods repaired.
d) Except to the extent precluded by law, NZCG expressly excludes all liability for loss of profits and any consequential, indirect or special damage or loss.
e) If the CGA applies, these Terms shall be read subject to Customer’s rights under the CGA.
f) Where Customer is purchasing Goods for the purpose of a business Customer acknowledges that the CGA does not apply to the sale of Goods to Customer by NZCG, and Customer agrees that sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 will not apply to any representations or conduct NZCG has made or engaged in relating to the Goods or any orders. Customer further agrees that the exclusions in this clause are fair and reasonable in the circumstances.
g) Customer agrees that to the maximum extent permitted by applicable law the provisions of Part 3 of the Contract and Commercial Law Act 2017 (Sale of Goods) do not apply.
h) Customer agrees that it will not give any express guarantees or warranties to its customers on NZCG’s behalf without NZCG’s express prior written approval; and it will contract out of the CGA in writing whenever it agrees to supply Goods to its own customers for the purpose of that customer’s business.
i) Where NZCG elects to give a written manufacturer’s warranty in respect of any Goods, that warranty will not apply to any seconds, floor stock or redundant stock unless NZCG agrees in writing.
a) Customer agrees that:
i) Property and ownership in the Goods will not pass but will remain with NZCG until the later of either delivery of the Goods or payment in full of those Goods as well as all other amounts owing by Customer to NZCG;
ii) NZCG is granted a security interest in all present and after acquired goods supplied by NZCG and their proceeds to secure the purchase price of those Goods as well as all monies owing to NZCG now and in the future in respect of the supply of Goods.
iii) Customer must do all such things and execute or arrange for execution of all such documents as NZCG may reasonably require to ensure that NZCG has a perfected first ranking security interest(s) in the Goods under the PPSA.
b) NZCG may register a financing statement to perfect its security interest in the Goods delivered, or, to be delivered, to the Customer; Customer waives its right to receive a copy of any verification statement(s) under section 148 of the PPSA and contracts out of its rights under (or by reference to) sections 114(1)(a), 116, 120(2), 121, 125, 126, 127, 129, 131, 133 and 134 of the PPSA; and where NZCG has rights in addition to those in Part 9 of the PPSA, those rights shall continue to apply.
c) Customer must immediately notify NZCG of any change in Customer’s name or registered office.
d) NZCG has an absolute discretion to apply any money received as a result of supplying goods or which represent the proceeds of enforcement of any security interest NZCG holds, in reduction of any part or parts of the monies owed to NZCG including under any security interest, whether and on whatever account it becomes secured, despite any principle or presumption of law to the contrary or any direction given by any person at the time of receipt and without the need to communicate NZCG’s election.
12) IP, BRANDS, PROMOTION, POINT OF SALE MATERIALS, LABELS
a) Customer acknowledges that NZCG is the owner of brands, trademarks, trade names, specifications and other intellectual property (“IP”) in relation to its business and its products including the Goods. Customer shall not at any time do or allow to be done any act or thing which may in any way infringe or affect the rights of NZCG in relation to its IP.
b) NZCG may elect from time to time to provide point of sale material and signage (“materials”) to Customer for use in its business to promote the NZCG brands and products and any such materials shall at all times remain the property of NZCG and shall not be disposed of by Customer without the prior consent of the Company. NZCG shall be entitled to require return of any such point of sale and signage at any time and may register it interest in the materials under the PPSA and Customer must do all such things and execute or arrange for execution of all such documents as NZCG may reasonably require for the purpose of this clause.
c) Customer shall comply with all standards or guidelines from time to time notified by NZCG from time to time as to the use of NZCG brands, trademarks, trade names and intellectual property in any advertising or promotion of the Goods.
d) Customer shall not promote, advertise or sell the Goods in any manner that may bring NZCG, the Goods or NZCG’s IP into disrepute or adversely affect NZCG.
e) Customer may not without NZCG’s written consent alter, remove or obliterate any labels or warranty cards or brochures that NZCG attaches to or places with the Goods.
a) Entire Agreement and Amendment. These Terms supersede all previous agreements about its subject matter and set out the entire agreement between the parties. These Terms may only be amended by written agreement between the parties.
b) No Waiver. If NZCG fails to enforce any terms or to exercise its rights under these terms at any time, NZCG has not waived those rights.
c) Not Agent. Each party enters into these Terms and each order as independent contractors. Customer is not an agent, partner or joint venturer of NZCG and has no right or authority to act, make representations or incur any obligations on behalf of NZCG. Without limiting the generality of the foregoing, Customer must not make any representation or provide any warranties against defects in respect of the Goods beyond any express warranty provided in writing by NZCG (if any).
d) Set-off. Any amounts owing by Customer to NZCG may be set-off by NZCG against any amounts owing by NZCG to the Customer.
e) No Assignment. Customer must not assign any of its rights under these Terms, any account or any order without the prior written consent of NZCG. Any proposed assignment or any change in effective control of Customer is to be notified to NZCG in writing for consent. If NZCG has not (in its sole discretion) given prior consent to any change NZCG reserves the right to review any credit terms, suspend or terminate the account at any time after such change.
i) Customer consents to NZCG collecting, using and holding general credit information about Customer and to disclosing the same to any third party in connection with credit management and control purposes; and collecting, using and holding any personal information provided to NZCG by Customer and to using the same to market to Customer other products or services offered or sold by NZCG.
ii) NZCG will from time to time receive from Customer personal information about the end customer in relation to purchases of Goods from the Customer, for example, the end-customer’s name and address and other details required for order processing and delivery direct to the end-customer, warranty registration or claims and marketing and promotion. Customer will take all reasonable steps to that its terms and conditions of sale and its privacy statement authorises Customer to disclose such personal information to NZCG for such purposes.
g) Confidential. All information (including specifications and pricing) provided by NZCG to Customer under or in connection with these Terms, account or any orders are confidential (except to the extent that it becomes public knowledge other than through breach by the Customer) and must not be disclosed to a third party without the prior written consent of NZCG or as required by law. This confidentiality obligation survives expiry or termination of these Terms.
h) Buying Group. Where Customer is a member of a franchise or buying group Customer acknowledges that NZCG may disclose information concerning Customer’s purchases and account to the franchisor/buying group management and may pay rebates or other commissions to the franchisor/buying group related to sales to the Customer.
i) Retail Sales. Customer agrees that it is purchasing the Goods for sale to retail customers and will not sell Goods to wholesalers, distributors, other retailers or other purchasers for purpose of resale.
j) Validity. If any part of these Terms is held to be illegal, void or invalid, that shall not affect the legality, validity and continuation of the remaining parts of that provision or Terms. The illegal, void or invalid part shall be read down to the extent practicable or the provision deemed deleted.
k) Force Majeure. A party is not in breach of this agreement to the extent the breach or other failure or omission arises from any event beyond the reasonable control of that party and without its fault or negligence (“Force Majeure Event”). Lack of money is not a Force Majeure Event. The party affected by the Force Majeure Event must promptly notify the other party of the occurrence of the Force Majeure Event and take all reasonable steps to overcome the Force Majeure Event and resume performance of its obligations as soon as possible. If the affected party is unable to perform its obligations under this agreement for a continuous period of more than 3 months, then either party may terminate this Agreement.
l) Dispute. If there is a dispute, claim or difference arising out of or relating to these Terms or an order (including existence, validity, interpretation, breach or termination) (“Dispute”) then the party claiming that a Dispute has arisen must give written notice to the other party setting out the nature of the dispute and remedy sought (“Dispute Notice”). The parties agree to try to settle the Dispute amicably by discussions and negotiations. If the Dispute is not resolved within thirty (30) days of the Dispute Notice (or such other period as the parties agree in writing) then a party may at its sole discretion commence legal proceedings. Nothing prevents the parties agreeing on arbitration or other alternative dispute resolution. A party may not commence any court proceedings relating to a Dispute unless it has complied with the foregoing requirement unless it is seeking urgent interlocutory relief.
m) Law. New Zealand law governs these Terms and any order. The courts of New Zealand have exclusive jurisdiction.
n) Notices. A notice, consent or communication under these Terms is effective if it is in writing and signed. It is deemed received at the Recipient’s address set out in the Details Schedule (or such other address as has been notified in accordance with this clause) (“Address”) if it is sent to the Address on a Working Day in the place of receipt:
i) by no later than 5.00 pm (local time in the place of receipt) if delivered by hand;
iii) the earlier of when the sender receives an automated message confirming delivery or eight hours after the time sent (as recorded on the device from which the sender sent the email), unless the sender receives an automated message that the email has not been delivered, when sent by email to the email Address; and provided that if the time of delivery or receipt is not a Working Day, or is after 5.00 pm on a Working Day (recipient’s local time), notice is deemed to have been received by the recipient at 9.00 am on the first Working Day after that day.