1. Definitions
- 1.1 “Hot Water Cylinders” shall mean Hot Water Cylinders 2023 Ltd, its successors and assigns or any person acting on behalf of and with the authority of Hot Water Cylinders 2023 Ltd.
- 1.2 “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by Hot Water Cylinders 2023 Ltd to the Customer.
- 1.3 “Guarantor” shall mean that person (or persons) who agrees to be liable for the debts of the Customer on a principal debtor basis.
- 1.4 “Goods” shall mean all Goods supplied by Hot Water Cylinders 2023 Ltd to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and includes Goods described on any invoices, quotation, work authorisation or any other forms as provided by Hot Water Cylinders 2023 Ltd to the Customer.
- 1.5 “Services” shall mean all services supplied by Hot Water Cylinders 2023 Ltd to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
- 1.6 “Price” shall mean the price payable for the Goods as agreed between Hot Water Cylinders 2023 Ltd and the Customer in accordance with clause 4 of this contract.
2. Consumer Guarantees Act 1993
- 2.1 If the Customer is acquiring Goods for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by Hot Water Cylinders 2023 Ltd to the Customer.
3. Acceptance
- 3.1 Any instructions received by Hot Water Cylinders 2023 Ltd from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by Hot Water Cylinders 2023 Ltd shall constitute acceptance of the terms and conditions contained herein.
- 3.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
- 3.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of Hot Water Cylinders 2023 Ltd.
- 3.4 The Customer shall give Hot Water Cylinders 2023 Ltd not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any 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, facsimile number, or business practice). The Customer shall be liable for any loss incurred by Hot Water Cylinders 2023 Ltd as a result of the Customer’s failure to comply with this clause.
- 3.5 Goods are supplied by Hot Water Cylinders 2023 Ltd only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
4. Price and Payment
- 4.1 At Hot Water Cylinders 2023 Ltd’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Hot Water Cylinders 2023 Ltd to the Customer in respect of Goods supplied; or
(b) Hot Water Cylinders 2023 Ltd’s quoted Price (subject to clause 4.2) which shall be binding upon Hot Water Cylinders 2023 Ltd provided that the Customer shall accept Hot Water Cylinders 2023 Ltd’s quotation in writing within thirty (30) days. - 4.2 Hot Water Cylinders 2023 Ltd reserves the right to change the Price in the event of a variation to Hot Water Cylinders 2023 Ltd’s quotation. Any variation from the plan of scheduled Services or specifications of the Goods (including, but not limited to, any variation as a result of additional work required due to unforeseen circumstances or as a result of increases to Hot Water Cylinders 2023 Ltd in the cost of Goods and labour) will be charged for on the basis of Hot Water Cylinders 2023 Ltd’s quotation and will be shown as variations on the invoice.
- 4.3 At Hot Water Cylinders 2023 Ltd’s sole discretion a deposit may be required.
- 4.4 Hot Water Cylinders 2023 Ltd may submit detailed progress payment claims:
(a) at intervals not less than monthly for work performed up to the end of each month; or
(b) in accordance with Hot Water Cylinders 2023 Ltd’s specified payment schedule; and such payment claims may include the reasonable value of authorised variations and the value of any Goods delivered to the site but not yet installed. - 4.5 At Hot Water Cylinders 2023 Ltd’s sole discretion:
(a) payment shall be due on delivery of the Goods; or
(b) payment shall be due before delivery of the Goods; or
(c) payment for approved Customers shall be due twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices. - 4.6 Time for payment shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
- 4.7 Payment will be made by credit card, debit card or by direct credit, or by any other method as agreed to between the Customer and Hot Water Cylinders 2023 Ltd.
- 4.8 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
- 4.9 Product price and availability represented on hotwatercylinders.nz may change at any time. This is due to regular manufacturing and distribution policy changes. We endeavour to represent “real-time” availability and pricing at all times. Prior to making any commitments or purchases please confirm price and availability with our sales team. HWCNZ will not accept any resulting damages or losses.
5. Delivery of the Goods
- 5.1 At Hot Water Cylinders 2023 Ltd’s sole discretion delivery of the Goods shall take place when:
(a) the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by Hot Water Cylinders 2023 Ltd or Hot Water Cylinders 2023 Ltd’s nominated carrier); or
(b) the Customer’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Customer’s agent. - 5.2 At Hot Water Cylinders 2023 Ltd’s sole discretion the costs of delivery are:
(a) included in the Price; or
(b) in addition to the Price. - 5.3 The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then Hot Water Cylinders 2023 Ltd shall be entitled to charge a reasonable fee for redelivery.
- 5.4 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
- 5.5 Hot Water Cylinders 2023 Ltd may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
- 5.6 The failure of Hot Water Cylinders 2023 Ltd to deliver shall not entitle either party to treat this contract as repudiated.
- 5.7 Hot Water Cylinders 2023 Ltd shall not be liable for any loss or damage whatsoever due to failure by Hot Water Cylinders 2023 Ltd to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Hot Water Cylinders 2023 Ltd.
6. Risk
- 6.1 If Hot Water Cylinders 2023 Ltd retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
- 6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, Hot Water Cylinders 2023 Ltd is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Hot Water Cylinders 2023 Ltd is sufficient evidence of Hot Water Cylinders 2023 Ltd’s rights to receive the insurance proceeds without the need for any person dealing with Hot Water Cylinders 2023 Ltd to make further enquiries.
- 6.3 Where the Customer has supplied materials for Hot Water Cylinders 2023 Ltd to complete the Services, the Customer acknowledges that he accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. Hot Water Cylinders 2023 Ltd shall not be responsible for any defects in the Services, any loss or damage to the materials (or any part thereof), howsoever arising from the use of materials supplied by the Customer.
- 6.4 The Customer acknowledges and agrees that Hot Water Cylinders 2023 Ltd shall not be responsible for the performance or efficiency of the Goods where those Goods are installed by Hot Water Cylinders 2023 Ltd in accordance the Customer’s and/or manufacturer’s specifications and instructions.
7. Title
- 7.1 Hot Water Cylinders 2023 Ltd and Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid Hot Water Cylinders 2023 Ltd all amounts owing for the particular Goods; and
(b) the Customer has met all other obligations due by the Customer to Hot Water Cylinders 2023 Ltd in respect of all contracts between Hot Water Cylinders 2023 Ltd and the Customer. - 7.2 Receipt by Hot Water Cylinders 2023 Ltd 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 and until then Hot Water Cylinders 2023 Ltd’s ownership or rights in respect of the Goods shall continue.
- 7.3 It is further agreed that:(a) where practicable the Goods shall be kept separate and identifiable until Hot Water Cylinders 2023 Ltd shall have received payment and all other obligations of the Customer are met; and(b) until such time as ownership of the Goods shall pass from Hot Water Cylinders 2023 Ltd to the Customer Hot Water Cylinders 2023 Ltd may give notice in writing to the Customer to return the Goods or any of them to Hot Water Cylinders 2023 Ltd. Upon such notice being given the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and(c) the Customer is only a bailee of the Goods and until such time as Hot Water Cylinders 2023 Ltd has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to Hot Water Cylinders 2023 Ltd for the Goods, on trust for Hot Water Cylinders 2023 Ltd; and(d) until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that Hot Water Cylinders 2023 Ltd will be the owner of the end products; and(e) if the Customer fails to return the Goods to Hot Water Cylinders 2023 Ltd then Hot Water Cylinders 2023 Ltd or Hot Water Cylinders 2023 Ltd’s agent may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Goods are situated and take possession of the Goods, and Hot Water Cylinders 2023 Ltd will not be liable for any reasonable loss or damage suffered as a result of any action by Hot Water Cylinders 2023 Ltd under this clause.
8. Personal Property Securities Act 1999 (“PPSA”)
- 8.1 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and(b) a security interest is taken in all Goods previously supplied by Hot Water Cylinders 2023 Ltd to the Customer (if any) and all Goods that will be supplied in the future by Hot Water Cylinders 2023 Ltd to the Customer.
- 8.2 The Customer undertakes to:(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Hot Water Cylinders 2023 Ltd may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;(b) indemnify, and upon demand reimburse, Hot Water Cylinders 2023 Ltd 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;(c) not register a financing change statement or a change demand without the prior written consent of Hot Water Cylinders 2023 Ltd; and
(d) immediately advise Hot Water Cylinders 2023 Ltd 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. - 8.3 Hot Water Cylinders 2023 Ltd and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
- 8.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
- 8.5 Unless otherwise agreed to in writing by Hot Water Cylinders 2023 Ltd, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
- 8.6 The Customer shall unconditionally ratify any actions taken by Hot Water Cylinders 2023 Ltd under clauses 8.1 to 8.5.
9. Defects
- 9.1 The Customer shall inspect the Goods on delivery and shall within two (2) days of delivery (time being of the essence) notify Hot Water Cylinders 2023 Ltd of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford Hot Water Cylinders 2023 Ltd an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Hot Water Cylinders 2023 Ltd has agreed in writing that the Customer is entitled to reject, Hot Water Cylinders 2023 Ltd’s liability is limited to either (at Hot Water Cylinders 2023 Ltd’s discretion) replacing the Goods or repairing the Goods.
1. Returns
- 10.1 Returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 9.1; and
(b) Hot Water Cylinders 2023 Ltd has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Customer’s cost within two (2) days of the delivery date; and
(d) Hot Water Cylinders 2023 Ltd will not be liable for Goods which have not been stored or used in a proper manner; and
(e) 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. - 10.2 Hot Water Cylinders 2023 Ltd may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of twenty percent (20%) of the value of the returned Goods plus any freight.
- 10.3 Non-stocklist items or Goods made to the Customer’s specifications are under no circumstances acceptable for credit or return.
1. Warranty
- 11.1 For Goods not manufactured by Hot Water Cylinders 2023 Ltd, the warranty shall be the current warranty provided by the manufacturer of the Goods. Hot Water Cylinders 2023 Ltd 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.
- 11.2 The conditions applicable to the warranty given on Goods supplied by Hot Water Cylinders 2023 Ltd are contained on the “Warranty Card” that will be supplied with the Goods.
- 11.3 In the case of second hand Goods, the Customer acknowledges that he has had full opportunity to inspect the same and that he accepts the same with all faults and that no warranty is given by Hot Water Cylinders 2023 Ltd as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. Hot Water Cylinders 2023 Ltd shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
