Terms Of Trade Of Warkworth Whiteware
Definitions
“Contract” means the terms and conditions contained herein, together with any Quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
“WWL” means Warkworth Whiteware Limited, its successors and assigns or any person acting on behalf of and with the authority of Warkworth Whiteware Limited.
“Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting WWL to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
if there is more than one Client, is a reference to each Client jointly and severally; and
if the Client is a partnership, it shall bind each partner jointly and severally; and
if the Client is a part of a trust, shall be bound in their capacity as a trustee; and
includes the Client’s executors, administrators, successors and permitted assigns.
“Goods” means all Goods (including, but not limited to, appliances and/or parts for the purposes of appliance repairs) or Services supplied by WWL to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
“Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), proof or purchase details, security information (including, key locations, alarm codes, etc.) and other contact information (where applicable), previous credit applications, credit history) and pricing details.
“Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including personal information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when ordering from the website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Goods via the website.
“Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Goods as agreed between WWL and the Client in accordance with clause 4
Acceptance
The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts Delivery of the Goods.
In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
The Client acknowledges and accepts that:
the supply of Goods on credit shall not take effect until the Client has completed a credit application with WWL and it has been approved with a credit limit established for the account.In the event that the supply of Goods request exceeds the Clients credit limit and/or the account exceeds the payment terms, WWL reserves the right to refuse Delivery;
in the event that WWL is required to provide the Services urgently, that may require WWL’s staff to work outside normal business hours (including but not limited to working, through lunch breaks, weekends and/or Public Holidays) then WWL reserves the right to charge a minimum Call-Out fee of two (2) hour labour cost plus a per kilometre travelled rate plus any Goods used to undertake the Services unless otherwise agreed between WWL and the Client;
once the Services have commenced, the Client shall be liable for all costs irrespective of whether the appliance is sold or not, unless such costs are accepted by the new owner. The said new owners shall be required to sign WWL’s documentation to acknowledge acceptance of all costs incurred in relation to the Services;
where the Client authorises WWL and/or their employee/s to undertake Services up to the value of $300.00 plus GST for labour & Goods on a ‘do and charge’ basis, payment will be due on completion of the job. Over and above this threshold the Services will only be done upon prior approval of the Client;
where WWL is requested to attend to repairs and the fault is deemed to be user generated and not a faulty appliance, WWL reserves the right to charge a minimum assessment fee for inspections plus any additional Goods and/or Services that may be required to complete the repair;
further to clause 4(d), where the appliance is assessed at WWL’s workshop but not repaired, WWL reserves the right to charge additional costs for the reassembly of the appliance for collection and/or delivery to another address nominated by the Client; or
where it is necessary for the appliance to be returned to the workshop for further inspection and/or repair, it is agreed, that prior to removal, confirmation from the Client will first be obtained;
where the Client is in a commercial food handling industry, the Client acknowledges and agrees that it is the Client’s responsibility to ensure that regular temperature checks are conducted. WWL shall not be held liable for any damages to property, food spoilage, or injury to persons as a result of consequential defects in or the non-operation of equipment and/or its accessories or performance related problems with any Goods where they have not been used and/or maintained in accordance with WWL and/or the manufacturers’ recommendations;
vermin and insect damage to appliances are not covered by the manufacturer’s or repair warranty;
appliances that are deemed to be excessively soiled may incur an additional cleaning fee. Futhermore, WWL reserves the right to decline the Services where it has been deemed that the appliance contains any toxic substances (including, but not limited to, hazardous or biohazardous contamination, etc.), and/or has been contaminated by vermin or insect infestation. At WWL’s discretion, all agreed charges shall be due and payable; and
WWL will not charge the Client for a trade apprentice who is only observing on site. Where the trade apprentice is required to assist in the Services, (including, but not limited to, WWL observing WorkSafe guidelines, etc.) then this shall be charged for as an extra in accordance with clause 1.
Where the Client is a tenant (and therefore not the owner of the land and premises where the Goods are to be repaired and/or installed) then the Client warrants that full consent has been obtained from the owner and/or property manager for WWL to repair or install the Goods on the owner’s land and premises. The Client acknowledges and agrees that they shall be personally liable for full payment of the Price for all Services provided under this Contract and to indemnify WWL against any claim made by the owner of the premises (howsoever arising) in relation to the repair and/or installation of the Goods and the provision of any related Services by WWL except where such claim has arisen because of the negligence of WWL when servicing and/or installing the Goods.
The Client agrees that they shall upon request from WWL provide evidence that:
they are the owner of the land and premises upon which the Services are be undertaken; or
where they are a tenant, that they have the consent of the owner for the Goods to be assessed, repaired and/or installed on the land and premises upon which the Services are be undertaken; and
further to clause 6(b), the Client shall be required to provide contact details of the owner of the appliance for the appliance to be assessed, repaired and/or installed on the premises upon where the Services are to be undertaken.
In the event that the Goods and/or Services provided by WWL are the subject of an insurance claim that the Client has made, then the Client shall be responsible for the payment of any monies payable to the insurance company and agrees to honour their obligation for payment for such transactions invoiced by WWL and shall ensure payment is made by the due date irrespective of whether the insurance claim is successful.
Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.
Change in Control
The Client shall give WWL not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including, but not limited to, changes in the Client’s name, address and contact phone or fax number/s, change of trustees or business practice). The Client shall be liable for any loss incurred by WWL as a result of the Client’s failure to comply with this clause.
Price and Payment
At WWL’s sole discretion the Price shall be either:
as indicated on any invoice provided by WWL to the Client; or
the Price as at the date of Delivery of the Goods according to WWL’s current price list; or
WWL’s estimated Price (subject to clause 5) which shall not be deemed binding upon WWL as the actual Price can only be determined upon completion of the Services. WWL undertakes to keep the Client informed should the actual Price look likely to exceed the original estimate; or
WWL’s quoted price (subject to clause 1) which will be valid for the period stated in the quotation or otherwise for a period of seven (7) days, subject to Goods availability at the time of acceptance.
At WWL’s sole discretion a deposit may be required.
Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by WWL, which may be:
for cash Clients, due immediately on completion of the Services; or
for certain approved Clients, due twenty (20) days following the date of any invoice issued to the Client by WWL;
the date specified on any invoice or other form as being the date for payment; or
failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by WWL.
Payment may be made by cash, electronic/on-line banking, credit card (a surcharge per transaction may apply), or by any other method as agreed to between the Client and WWL.
WWL may in its discretion allocate any payment received from the Client towards any invoice that WWL determines and may do so at the time of receipt or at any time afterwards. On any default by the Client WWL may re-allocate any payments previously received and allocated. In the absence of any payment allocation by WWL, payment will be deemed to be allocated in such manner as preserves the maximum value of WWL’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by WWL. The Client acknowledges and agrees not to withhold payment of any invoice because part of that invoice is in dispute or if the Client requires the ability to test the appliance by way of running several cycles of the appliance on completion of the Services.
Upon receipt of WWL’s invoice, the Client shall have up to seven (7) days to lodge any claim and/or dispute against WWL from the event arising or such claim shall be waived if WWL is notified outside of this timeframe and the invoice shall be due and payable.
Where the Client has been issued with a seven (7) day invoice, the Client shall inspect the Goods immediately on delivery and in the event that there is any claim and/or dispute against WWL from the event arising then the Client shall have up to forty eight (48) hours to lodge such a claim or such claim shall be waived if WWL is notified outside of this timeframe and the invoice shall be due and payable.
Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to WWL an amount equal to any GST WWL must pay for any supply by WWL under this or any other contract for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
Additional Charges
WWL reserves the right to change the Price:
if a variation to the Services which are to be provided is requested; or
where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, limitations to access the site or appliance, further faults which are found upon disassembly and/or further inspection, soiled appliances that require cleaning prior to the commencement of the Services, vermon or insect damage, etc) which are only discovered upon commencement of the Services; or
in the event of increases to WWL in the cost of labour (including the assistance of a trade apprentice) or materials, or fluctuations in currency exchange rates, which are beyond WWL’s control.
Variations will be charged for on the basis of WWL’s quotation, and will be detailed in writing, and shown as variations on WWL’s invoice. The Client shall be required to respond to any variation submitted by WWL within ten (10) working days. Failure to do so will entitle WWL to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
If WWL has been requested by the Client to diagnose a fault and/or identify parts that requires technician attention, all costs involved will be charged to the Client irrespective of whether or not the repair goes ahead.
The Client acknowledges and agrees that WWL shall be entitled to:
retain any components replaced during the provision of the Services; and
where it has been deemed that the item is not to be repaired, the right to retain all proceeds obtained from the sale of such components to any parts recycler or salvage yard. All costs for scrappage and third party testing costs will be borne by the Client and will be shown as variations on the invoice.
Provision of the Services
Subject to clause 2 it is WWL’s responsibility to ensure that the Services start as soon as it is reasonably possible.
The Services’ commencement date will be put back and the completion date extended by whatever time is reasonable in the event that WWL claims an extension of time (by giving the Client verbal and/or written notice) where completion is delayed by an event beyond WWL’s control, including but not limited to, any event as per clause 8, power outage, or any failure by the Client to:
supply relevant information; or
have the site ready for the Services; or
notify WWL that the site is ready.
The Client acknowledges and accepts that where the Client wishes to postpone the Services that WWL must be notified at least (1) business day of the proposed commencement date as agreed to between both parties. Where such notice is received inside this timeframe, WWLreserves the right to charge a reasonable fee for the delay in the commencement of the Services.
Delivery (“Delivery”) of the Goods is taken to occur at the time that:
the Client or the Client’s nominated carrier takes possession of the Goods at WWL’s address; or
WWL (or WWL’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
At WWL’s sole discretion the cost of Delivery is in addition to the Price.
WWL may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
Any time specified by WWL for Delivery of the Goods is an estimate only and WWL will not be liable for any loss or damage incurred by the Client as a result of Delivery being late. However both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that WWL is unable to supply the Goods as agreed solely due to any action or inaction of the Client, then WWL shall be entitled to charge a reasonable fee for redelivery and/or storage.
Risk
Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Client, WWL is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by WWL is sufficient evidence of WWL’s rights to receive the insurance proceeds without the need for any person dealing with WWL to make further enquiries.
If the Client requests WWL to leave Goods outside WWL’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
Where WWL is to both supply and install the Goods then WWL shall maintain a contract works insurance policy until the Services are completed. Upon completion of the Services all risk for the Services shall immediately pass to the Client.
The Client warrants that any structures to which the Goods are to be affixed are able to withstand the installation of the Goods and, where applicable, that any electrical connections (including, but not limited to, meter boxes, main switches, circuit breakers, and electrical cable) are of suitable capacity to handle the Goods once installed. If, for any reason WWL reasonably forms the opinion that the Client’s property is not safe for the installation of Goods to proceed then WWL shall be entitled to delay installation of the Goods (in accordance with clause 2) until WWL is satisfied that it is safe for the installation to proceed.
WWL shall not be liable for any loss or damage caused in accessing the work area or appliance beyond reasonable control of WWL (including, but not limited to, kitchen kick boards, modifications made to the appliances, tiling, paintwork, walls, etc. ) which WWL may have to break into or disturb in the performance of the Services, unless due to the negligence of WWL. It shall be the Client’s responsibility to reinstate the work area or appliance to the original state.
The Client acknowledges and agrees that where WWL has performed temporary repairs that:
WWL offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and
WWL will immediately advise the Client of the fault and shall provide the Client with an estimate for the full repair.
The Client further acknowledges and accepts that WWL is only responsible for parts that are replaced by WWL, and that in the event that other components subsequently fail, the Client agrees to indemnify WWL against any loss or damage to the Goods, or caused by the components, or any part thereof howsoever arising.
WWL shall upon installation ensure that all Goods are to be installed in a manner that is fully compliant with industry standards. If, for any reason, the Client specifically requires the Goods to be installed in any way which goes against WWL’s recommendations and/or falls below industry standards, a request detailing that requirement must be made in writing to WWL. Accordingly, WWL shall reserve the right refuse to perform the Services and subject to clause 1, terminate the Contract.
Plans and Specifications
The plans, specifications and other information provided by the Client to WWL is accurate. The Client acknowledges and agrees that in the event that any plans, specifications or information provided by the Client is inaccurate:
WWL accepts no responsibility or liability for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information;
WWL is entitled to suspend or terminate the supply of Goods or Services to the Client if there is a material change to the scope of Services as a result of inaccurate plans, specifications or other information;
the Client shall be liable for WWL’s costs of de-mobilisation or re-mobilisation of any plant, equipment or staff to or from the site, upon the re-commencement of the Services at the site, if applicable; and
WWL will not be liable to the Client for any loss or damage the Client suffers because WWL has exercised its rights under this clause.
Access
The Client shall ensure that WWL has clear and free access to the site at all times to enable them to undertake the Services. WWL shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas, ) unless due to the negligence of WWL.
The Client shall permit WWL to enter other rooms on the property for the purposes of finding and/or using items on the propery (including but not limited to, the bathroom for the purposes of washing up, towels for mopping up any leaks, access to adjacent rooms, locating any power sources for the purpose of turning off power to the appliance, etc) during the course of the Services.
In the event that WWL is called to an onsite repair job and the site is unaccessible, then WWL reserves the right to charge a fee for the site visit including any stand down time WWL is present onsite, which shall be charged in addition to the Price in accordance with clause 1.
Abandoned/Unclaimed Goods
Subject to clause 21, where the Goods have been paid for in full but the Goods remain unclaimed (after written notice was issued to the Client for collection) at the end of a thirty (30) day period, then WWL shall be entitled to assume that such Goods have been abandoned and WWL shall be free to dispose of such Goods and to retain the proceeds thereof, if any, to cover any associated costs for storage.
Compliance with Laws
The Client and WWL shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services, including but not limited to, any WorkSafe guidelines or any other relevant safety standards or legislation pertaining to the Services.
All work will be tested to ensure that it is electrically safe and is in accordance with the wiring rules and other standards applying to the electrical installation under the Electrical Safety Regulations. All of the cabling work will comply with all relevant Australian and New Zealand Wiring standards.
If during the course of installation when the Services are being conducted within and around switchboards that if the same is found defective or deemed to be unsafe by WWL, then WWL shall notify the Client immediately. The power if isolated will not be re-energised until such time as the existing condition has been rectified and made safe in accordance to the Electrical Safety Regulations. The Client accepts and agrees that any costs associated with the rectification Services including any materials and labour shall be to the Client’s account.
Any live Services or Services undertaken near live conductors where it is safe to do so shall be dealt with in accordance with New Zealand and Australian Wiring standards being “Safe working on Low Voltage Electrical Installations, relevant Commonwealth and Statutory Acts and Work Place Regulations”. WWL live Services procedures are designed to eliminate risk of injury to WWL’s employees, damage to the Client’s installations and unexpected power disconnections. It may in some cases require disconnection and isolation of the installation to undertake such Services for which additional charges may be applicable. This shall be invoiced in accordance with clause 1.
Title
WWL and the Client agree that ownership of the Goods shall not pass until:
the Client has paid WWL all amounts owing to WWL; and
the Client has met all of its other obligations to WWL.
Receipt by WWL of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
It is further agreed that until ownership of the Goods passes to the Client in accordance with clause 1:
the Client is only a bailee of the Goods and must return the Goods to WWL on request;
the Client holds the benefit of the Client’s insurance of the Goods on trust for WWL and must pay to WWL the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for WWL and must pay or deliver the proceeds to WWL on demand;
the Client irrevocably authorises WWL to enter any premises where WWL believes the Goods are kept and recover possession of the Goods;
WWL may recover possession of any Goods in transit whether or not Delivery has occurred;
the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of WWL;
WWL may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
Personal Property Securities Act 1999 (“PPSA”)
Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
these terms and conditions constitute a security agreement for the purposes of the PPSA; and
a security interest is taken in all Goods and/or collateral (account) – being a monetary obligation of the Client to WWL for Services – that have previously been supplied and that will be supplied in the future by WWL to the Client.
The Client undertakes to:
sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which WWL may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
indemnify, and upon demand reimburse, WWL for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of WWL; and
immediately advise WWL of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
WWL and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
Unless otherwise agreed to in writing by WWL, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
The Client shall unconditionally ratify any actions taken by WWL under clauses 1 to 13.5.
Subject to any express provisions to the contrary (including those contained in this clause 13), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
Security and Charge
In consideration of WWL agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
The Client indemnifies WWL from and against all WWL’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising WWL’s rights under this clause.
The Client irrevocably appoints WWL and each director of WWL as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 14 including, but not limited to, signing any document on the Client’s behalf.
Defects
The Client shall inspect the Goods on Delivery and shall within three (3) days of Delivery (time being of the essence) notify WWL of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford WWL an opportunity to inspect the Goods within a reasonable time following Delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which WWL has agreed in writing that the Client is entitled to reject, WWL’s liability is limited to either (at WWL’s discretion) replacing the Goods or repairing the Goods.
Goods will not be accepted for return other than in accordance with 1 above, and provided that:
WWL has agreed in writing to accept the return of the Goods; and
the Goods are returned at the Client’s cost within seven (7) days of the Delivery date; and
WWL will not be liable for Goods which have not been stored or used in a proper manner; and
the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
WWL will not accept the return of non-defective Goods for credit.
Warranty
Subject to the conditions of warranty set out in clause 2 WWL warrants that if any defect in any workmanship of WWL becomes apparent and is reported to WWL within three (3) months of the date of Delivery (time being of the essence) then WWL will either (at WWL’s sole discretion) replace or remedy the workmanship.
The conditions applicable to the warranty given by clause 1 are:
the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
failure on the part of the Client to properly maintain any Goods; or
failure on the part of the Client to follow any instructions or guidelines provided by WWL; or
any use of any Goods otherwise than for any application specified on a quote or order form; or
the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
fair wear and tear, any accident or act of God.
For Goods not manufactured by WWL, the warranty shall be the current warranty provided by the manufacturer of the Goods. WWL shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
In the case of second hand Goods, the Client acknowledges that full opportunity to inspect the same has been provided and accepts the same with all faults and that no warranty is given by WWL as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. WWL shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
Consumer Guarantees Act 1993
If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by WWL to the Client.
Default and Consequences of Default
An event of default (“Default Event”) occurs if:
any money payable under this Contract is not paid before or on the due date for payment;
the Client has exceeded any applicable credit limit provided by WWL;
the Client fails to observe and perform any of the Client’s covenants, other than the failure to pay money, and such failure continues for more than seven (7) days after WWL had given the Client notice requiring the Client to remedy the breach;
the Client, being an individual, commits an act of bankruptcy, is declared mentally ill or is convicted of a criminal offence or dies;
a receiver, or an agent in possession for a mortgagee, is appointed in respect of any property of the Client;
a mortgagee takes possession of any property of the Client;
any execution or similar process is made against the property of the Client;
an application is made, a resolution is passed or a meeting is convened for the purpose of considering a resolution for the Client to be wound up, unless the winding up is for the purpose of reconstruction or amalgamation;
a compromise or arrangement is made between the Client and its creditors;
a resolution is passed, or a meeting is convened for the purpose of considering a resolution for the Client to be placed under official management;
the Client admits in writing its inability to pay its debts.
On the occurrence of a Default Event:
WWL may:
take possession of the Goods with, or without notice to the Client, in accordance with clause 3(e);
charge interest on overdue invoices, which shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month (and at WWL’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment;
if the Client owes WWL any money, the Client shall indemnify WWL from and against all costs and disbursements incurred by WWL in recovering the debt (including, but not limited to, internal administration fees, legal costs on a solicitor and own client basis, WWL’s collection agency costs, and bank dishonour fees);
at WWL’s sole discretion, should any account become overdue from the agreed payment due date then an internal administration fee as per clause 2(b) of forty-five dollars ($45 plus GST) shall be levied and shall become immediately due and payable;
further to any other rights or remedies WWL may have under this Contract, if the Client has made payment to WWL and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by WWL under this clause 18 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract;
without prejudice to WWL’s other remedies at law, WWL shall be entitled to cancel, suspend or terminate the supply of Goods/Services or any part of any order of the Client which remains unperformed in addition to and without prejudice to any other remedies WWL may have and all amounts owing to WWL shall, whether or not due for payment, become immediately payable. WWL will not be liable to the Client for any loss or damage the Client suffers because WWL has exercised its rights under this clause.
Cancellation
WWL may cancel any contract to which these terms and conditions apply or cancel Delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice WWL shall repay to the Client any money paid by the Client for the Goods. WWL shall not be liable for any loss or damage whatsoever arising from such cancellation.
In the event that the Client cancels Delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by WWL as a direct result of the cancellation (including, but not limited to, any loss of profits).
Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
Privacy Policy
All emails, documents, images or other recorded information held or used by WWL is Personal Information as defined and referred to in clause 3 and therefore considered confidential. WWL acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1993 (“the Act”) including Part II of the OECD Guidelines and as set out in Schedule 5A of the Act and any statutory requirements where relevant in a European Economic Area “EEA” then the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). WWL acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Clients Personal Information, held by WWL that may result in serious harm to the Client, WWL will notify the Client in accordance with the Act and/or the GDPR. Any release of such personal information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
Notwithstanding clause 1, privacy limitations will extend to WWL in respect of Cookies where transactions for purchases/orders transpire directly from WWL’s website. WWL agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
IP address, browser, email client type and other similar details;
tracking website usage and traffic; and
reports are available to WWL when WWL sends an email to the Client, so WWL may collect and review that information (“collectively Personal Information”)
In order to enable / disable the collection of Personal Information by way of Cookies, the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via WWL’s website.
The Client authorises WWL or WWL’s agent to:
access, collect, retain and use any information about the Client;
(including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), proof or purchase details, security information (including, key locations, alarm codes, etc.), and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
for the purpose of marketing products and services to the Client.
disclose information about the Client (including, but not limited to, Client’s ownership of the Goods supplied and/or appliance information for the purpose of any warranty claims with manufacturers), whether collected by WWL from the Client directly or obtained by WWL 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 Client.
Where the Client is an individual the authorities under clause 3 are authorities or consents for the purposes of the Privacy Act 1993.
The Client shall have the right to request WWL for a copy of the Personal Information about the Client retained by WWL and the right to request WWL to correct any incorrect Personal Information about the Client held by WWL.
Unpaid Seller’s Rights
Where the Client has left any item with WWL for repair, modification, exchange or for WWL to perform any other service in relation to the item and WWL has not received or been tendered the whole of any monies owing to it by the Client, WWL shall have, until all monies owing to WWL are paid:
a lien on the item; and
the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
The lien of WWL shall continue despite the commencement of proceedings, or judgment for any monies owing to WWL having been obtained against the Client.
General
The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the Auckland Courts of New Zealand.
WWL shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by WWL of these terms and conditions (alternatively WWL’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
WWL may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
The Client cannot licence or assign without the written approval of WWL.
WWL may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of WWL’s sub-contractors without the authority of WWL.
The Client agrees that WWL may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for WWL to provide Goods to the Client.
Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and/or have a bad credit rating and that this Contract creates binding and valid legal obligations on them.