DESIGNA TILES'® TERMS & CONDITIONS OF SALE
1. DEFINITIONS
1.1 “Designa, Designa Tiles or Designa Ceramic Tiles” shall mean Designa Ceramic Tiles Limited®, or any agents or employees thereof.
1.2 “Customer” shall mean any person purchasing goods and services from Designa Tiles®, or any person acting on behalf of and with the authority of the Customer.
1.3 “Goods” shall mean:
1.3.1 all Goods of the general description specified on a quotation or sale invoice and supplied by Designa Tiles to the Customer; and
1.3.2 all Goods supplied by Designa Tiles® to the Customer; and
1.3.3 all inventory of the Customer that is supplied by Designa Tiles®; and
1.3.4 all Goods supplied by Designa Tiles® and further identified in any invoice issued by Designa Tiles® to the Customer, which invoices are deemed to be incorporated into and form part of this agreement; and
1.3.5 all Goods that are marked as having been supplied by Designa Tiles® or that are stored by the Customer in a manner that enables them to be identified as having been supplied by Designa Tiles®; and
1.3.6 all of the Customer’s present and after-acquired Goods that Designa Tiles® has performed work on or to or in which goods or materials supplied or financed by Designa Tiles® have been attached or incorporated.
1.3.7 The above descriptions may overlap but each is independent of and does not limit the others.
1.4 “Goods” shall also mean all goods, services and advice provided by Designa Tiles® to the Customer and shall include without limitation the importation and distribution of ceramic tiles including wholesale and retail, installation of ceramic tiles and associated goods, design service and technical advice and all charges for labour, hire charges, insurance charges, freight costs, or any fee or charge associated with the supply of Goods by Designa Tiles® to the Customer.
1.5 “Price” shall mean the cost of the Goods as agreed between Designa Tiles® and the Customer and includes all disbursements eg charges Designa Tiles® pay to others on the Customer's behalf subject to clause 4 of these Terms and Conditions.
2. ACCEPTANCE
2.1 Any instructions received by Designa Tiles® from the Customer for the supply of Goods shall constitute a binding contract and acceptance of the Terms and Conditions contained herein.
3. COLLECTION AND USE OF INFORMATION
3.1 The Customer authorises Designa Tiles® to collect, retain and use any information about the Customer, for the purpose of assessing the Customer’s credit worthiness, enforcing any rights under this contract, or marketing any Goods provided by Designa Tiles® to any other party.
3.2 The Customer authorises Designa Tiles® to disclose any information obtained to any person for the purposes set out in clause 3.1.
3.3 Where the Customer is a natural person the authorities under clauses 3.1 and 3.2 are authorities or consents for the purposes of the Privacy Act 1993.
4. PRICE
4.1 Where no price is stated in writing or agreed to orally the Goods shall be deemed to be sold at the current amount as such Goods are sold by Designa Tiles® at the time of the contract.
4.2 The price may be increased by the amount of any reasonable increase in the cost of supply of the Goods that is beyond the control of Designa Tiles® between the date of the contract and delivery of the Goods.
5. PAYMENT
5.1 In the absence of approved credit account arrangements with Designa Tiles®, payment in full must be received prior to collection of or delivery of Goods.
5.2 If a credit arrangement has been approved by Designa Tiles®, payment for Goods and services shall be made in full on or before the 20th day of the month following the date of the invoice (“the due date”).
5.3 Interest may be charged on any amount owing after the due date at the rate of 2.5% per month or part month.
5.4 Any expenses, disbursements and legal costs incurred by Designa Tiles® in the enforcement of any rights contained in this contract shall be paid by the Customer, including any actual solicitor’s fees or debt collection agency fees.
5.5 Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
5.6 A deposit may be required.
5.7 Progress payments may apply.
5.8 An additional fee may be charged Customers who pay by credit card.
6. QUOTATION
6.1 Where a quotation is given by Designa Tiles® for Goods:
6.1.1 Unless otherwise agreed the quotation shall be valid for thirty (30) days from the date of issue; and
6.1.2 The quotation shall be exclusive of goods and services tax unless specifically stated to the contrary;
6.1.3 Designa Tiles® reserves the right to alter the quotation because of circumstances beyond its control.
6.2 Where Goods are required in addition to the quotation the Customer agrees to pay for the additional cost of such Goods.
7. RISK
7.1 The Goods remain at Designa Tiles’® risk until delivery to the Customer. Any claim relating to a delivery must be made within twenty-four (24) hours of delivery.
7.2 Delivery of Goods shall be deemed complete when Designa Tiles® gives possession of the Goods directly to the Customer or possession of the Goods is given to a carrier, courier, or other bailee for purposes of transmission to the Customer.
8. TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999)
8.1 Title in any Goods supplied by Designa Tiles® passes to the Customer only when the Customer has made payment in full for all Goods provided by Designa Tiles® and of all other sums due to Designa Tiles® by the Customer on any account whatsoever. Until all sums due to Designa Tiles® by the Customer have been paid in full, Designa Tiles® has a security interest in all Goods.
8.2 If the Goods are attached, fixed, or incorporated into any property of the Customer, by way of any manufacturing or assembly process by the Customer or any third party, title in the Goods shall remain with Designa Tiles® until the Customer has made payment for all Goods, and where those Goods are mixed with other property so as to be part of or a constituent of any new Goods, title to these new Goods shall deemed to be assigned to Designa Tiles® as security for the full satisfaction by the Customer of the full amount owing between Designa Tiles® and Customer.
8.3 The Customer gives irrevocable authority to Designa Tiles® to enter any premises occupied by the Customer or on which Goods are situated at any reasonable time after default by the Customer or before default if Designa Tiles® believes a default is likely and to remove and repossess any Goods and any other property to which Goods are attached or in which Goods are incorporated. Designa Tiles® shall not be liable for any costs, damages, expenses or losses incurred by the Customer or any third party as a result of this action, nor liable in contract or in tort or otherwise in any way whatsoever unless by statute such liability cannot be excluded. Designa Tiles® may either resell any repossessed Goods and credit the Customer’s account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs) or may retain any repossessed Goods and credit the Customer’s account with the invoice value thereof less such sum as Designa Tiles® reasonably determines on account of wear and tear, depreciation, obsolescence, loss of profit and costs.
8.4 Where Goods are retained by Designa Tiles® pursuant to clause 8.3 the Customer waives the right to receive notice under s.120 of the Personal Property Securities Act 1999 (“PPSA”) and to object under s.121 of the PPSA.
8.5 The following shall constitute defaults by the Customer:
8.5.1 Non payment of any sum by the due date.
8.5.2 The Customer intimates that it will not pay any sum by the due date.
8.5.3 Any Goods are seized by any other creditor of the Customer or any other creditor intimates that it intends to seize Goods.
8.5.4 Any Goods in the possession of the Customer are materially damaged while any sum due from the Customer to Designa Tiles® remains unpaid.
8.5.5 The Customer is bankrupted or put into liquidation or a receiver is appointed to any of the Customer’s assets or a landlord distrains against any of the Customer’s assets.
8.5.6 A Court judgment is entered against the Customer and remains unsatisfied for seven (7) days.
8.5.7 Any material adverse change in the financial position of the Customer.
9. PAYMENT ALLOCATION
9.1 Designa Tiles® may in its discretion allocate any payment received from the Customer towards any invoice that Designa Tiles® determines and may do so at the time of receipt or at any time afterwards and on default by the Customer may reallocate any payments previously received and allocated. In the absence of any payment allocation by Designa Tiles®, payment shall be deemed to be allocated in such manner as preserves the maximum value of Designa Tiles’® purchase money security interest in the Goods.
10. DISPUTES
10.1 No claim relating to Goods will be considered unless made in writing within seven (7) days of delivery.
11. LIABILITY
11.1 The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon Designa Tiles® which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on Designa Tiles®, Designa Tiles’® liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.
11.2 Except as otherwise provided by clause 11.1 Designa Tiles® shall not be liable for:
11.2.1 Any loss or damage of any kind whatsoever, arising from the supply of Goods by Designa Tiles® to the Customer, including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Goods provided by Designa Tiles® to the Customer; and
11.2.2 The Customer shall indemnify Designa Tiles® against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of Designa Tiles® or otherwise, brought by any person in connection with any matter, act, omission, or error by Designa Tiles® its agents or employees in connection with the Goods.
12. COPYRIGHT AND INTELLECTUAL PROPERTY
12.1 Designa Tiles®, owns and has copyright in all goods designed and produced by Designa Tiles®, drawings, plans, specifications, models, photographs, documents and software produced by Designa Tiles® in connection with the Goods provided pursuant to this contract and the client may use the Goods only if paid for in full and for the purpose for which they were intended and supplied by Designa Tiles®.
13. CONSUMER GUARANTEES ACT
13.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Goods from Designa Tiles® for the purposes of a business in terms of section 2 and 43 of that Act.
14. PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES
14.1 If the Customer is a company or trust, the director(s) or trustee(s) signing Designa Tiles'® account application form, in consideration for Designa Tiles® agreeing to supply Goods and grant credit to the Customer at their request, also sign this contract in their personal capacity and jointly and severally personally undertake as principal debtors to Designa Tiles® the payment of any and all monies now or hereafter owed by the Customer to Designa Tiles® and indemnify Designa Tiles® against non-payment by the Customer. Any personal liability of a signatory of Designa Tiles'® account application form shall not exclude the Customer in any way whatsoever from the liabilities and obligations contained in this contract. The signatories and Customer shall be jointly and severally liable under the terms and conditions of this contract and for payment of all sums due hereunder.
15. CAVEAT
15.1 The Customer charges in favour of Designa Tiles® as security for the Customer’s obligations to Designa Tiles®, all right, title and interest in any land held now by the Customer alone or jointly with anyone or acquired by the Customer at any time hereafter. If the Customer defaults in payment of any amount owed to Designa Tiles®, the Customer specifically authorises Designa Tiles® to lodge a caveat against any such property and appoints Designa Tiles® to be the Customer’s Attorney for this purpose.
16. MISCELLANEOUS
16.1 Designa Tiles® shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
16.2 Failure by Designa Tiles® to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations Designa Tiles® has under this contract.
16.3 If any provision of this contract shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
17 JURISDICTION
17.1 The laws of New Zealand shall prevail in respect to any disagreement over, or interpretation of this contract. Sole legal jurisdiction shall be the courts of New Zealand.