Terms and Conditions
1. Definitions and Interpretation
1.1 Definitions: In this Agreement, unless the context requires otherwise:
Agreement means the Customer Account Application, Guarantee Schedule (if applicable), these Terms and Conditions and any proposal issued by the Supplier.
CGA means the Consumer Guarantees Act 1993.
Customer means the customer detailed in the Customer Account Application.
Customer Provided Information means any information, specifications, instructions, measurements, quantities or designs provided by the Customer or any third party who has not been engaged by the Supplier (including the details contained in the Customer Account Application).
Default Interest Rate means 15% per annum.
Delays has the meaning given to that term in clause 11.2(a).
FTA means the Fair Trading Act 1986.
GST means any goods and services tax or other similar tax which applies to the supply of the Products and Services (or any of the Products and Services) pursuant to the laws of New Zealand or any other country.
Guarantor means the guarantor detailed in the Customer Account Application (if applicable).
Intellectual Property means all intellectual property rights including trademarks, design rights, service marks, trade and business names, rights and designs, patents, copyright, patterns, database rights, moral rights and other rights, and know-how, and any other intellectual property rights of any nature whatsoever throughout the world whether registered or unregistered and including all applications and rights to apply for any of the same.
Order means an order for Products and/or Services which is made (in writing, orally or any other form) by the Customer and which the Supplier agrees to supply (including as set out in any proposal issued by the Supplier); and Ordered shall be construed accordingly.
Price means the price of the Products and Services determined in accordance with clause 3.1.
Products means all products and goods supplied by the Supplier to the Customer from time to time.
Quote means any quote given in writing by the Supplier to the Customer, including as set out in any proposal issued by the Supplier.
Services means all services and advice provided by the Supplier to the Customer from time to time.
Supplier means ROGER ROGER MARKETING LIMITED and includes its assignee.
Working Day has the meaning given to that term in section 4 of the Property Law Act 2007.
1.2 Interpretation: In this Agreement, unless the context otherwise requires:
(a) Where the context permits, the singular includes the plural and vice versa.
(b) Where the Customer and/or Guarantor (if any) comprise two or more persons, an obligation to be performed by the Customer or Guarantor (as applicable) binds those persons jointly and severally.
(c) References to any “party” mean a party to this Agreement and include the successors, executors, administrators and permitted assignees (as the case may be) of that party.
(d) All references to legislation are (unless stated otherwise) references to New Zealand legislation and include all subordinate legislation, any re-enactment of, or amendment to, that legislation and all legislation passed in substitution for that legislation.
(a) A reference to the word “include” or “including” is to be interpreted without limitation.
(e) References to a “person” include an individual, firm, company, corporation or unincorporated body of persons, any public, territorial or regional authority, any government, and any agency of any government or of any such authority.
1.3 Contracting out: Nothing in this Agreement is intended to have the effect of contracting out of the provisions of the Credit Contracts and Consumer Finance Act 2003, CGA or FTA except to the extent permitted by law, and the provisions of this Agreement shall be read as modified to the extent necessary to give effect to that intention.
1.4 These Terms and Conditions shall apply at all times to the supply of Products and Services by the Supplier to the Customer. The Customer shall be deemed to have confirmed its continued acceptance of these Terms and Conditions on making any Order or giving any instructions to the Supplier for the supply of Products and Services.
1.5These Terms and Conditions may be varied by the Supplier at any time. Any variations to the Terms and Conditions shall take effect from the time the varied Terms and Conditions are provided (including by email or in another electronic form) to the Customer (whichever is earlier).
1.6 In the event of a conflict or inconsistency between these Terms and Conditions and any other contract, agreement or arrangement between the parties, these Terms and Conditions shall prevail.
1.7 Subject to clause 3.4, the Price shall be that price described on the Quote (which shall be valid for 30 days from the date of the Quote) except that the Price shall be that price indicated on invoices issued by the Supplier from time to time if:
(a) the Customer does not make an Order for the Products and/or Services the subject of the Quote within 30 days from the date of the Quote;
(b) no Quote has been provided by the Supplier in respect to the Products and Services; or
(c) the Products and Services described in the Quote differ in any respect (and for any reason) from the Products and Services ultimately supplied by the Supplier.
1.8 GST and other taxes and duties relating to the supply of the Products and Services to the Customer are not included in the Price and shall be immediately due and payable by the Customer on demand by the Supplier in addition to the Price at the rate(s) prevailing at the time.
1.9 The Supplier’s charges for delivering the Products (if applicable) are not included in the Price and shall be immediately due and payable by the Customer on demand by the Supplier in addition to the Price.
1.10 The Supplier may vary the Price if a variation to the Products and Services is requested by the Customer or if the Supplier determines that additional work or a variation to the Products and Services is necessary or desirable due to circumstances beyond the reasonable control of the Supplier including Delays, the discovery of difficulties or complexities, or any inaccuracy, error or omission in any Customer Provided Information.
1.11 The Supplier may from time to time issue an invoice for Products and Services supplied or partly supplied by the Supplier to the Customer (which may include any Products Ordered by the Customer but not yet delivered). Unless otherwise agreed in writing by the parties, the amount specified in each invoice shall be due and payable within 7 days of the date of the invoice.
1.12 All payments must be paid in cleared funds immediately available for disbursement and without any deduction or withholding on account of any other amount, whether by way of set-off, counterclaim or otherwise, to such bank account as the Supplier nominates in writing.
1.13 If the Supplier receives a payment that is insufficient to discharge all the amounts then due and payable by the Customer under this Agreement, the Supplier (and notwithstanding any contrary stipulation by the Customer) may apply that payment towards the obligations of the Customer under this Agreement in such order as it deems fit.
1.14 The Supplier may require the Customer to pay a deposit in respect to any Order or prepay the Price in part or in full. If a deposit or prepayment is required by the Supplier, the Customer must pay that deposit or prepayment in accordance with the requirements stipulated by the Supplier at the time.
1.15 An event of default (Event of Default) occurs if:
(a) the Customer breaches (or the Supplier reasonably believes that the Customer is likely to breach) this Agreement or some other contract, agreement or arrangement between the parties;
(b) any information the Customer (or any person on behalf of the Customer) has provided to the Supplier is untrue, misleading or deceptive in a material respect;
(c) the Customer is declared bankrupt, or insolvent or is otherwise wound up (whether voluntarily or by Court order), or has a liquidator or receiver appointed over all or any part of its assets, or enters into a composition with its creditors; or
(d) in the reasonable opinion of the Supplier, a material adverse change occurs in relation to the Customer.
1.16 Without prejudice to any other rights or remedies available to the Supplier, if an Event of Default occurs, the Supplier may:
(a) terminate this Agreement;
(b) enter any other premises where any Products and Services are located and take possession of and remove the Products (if any) (without being responsible for any damage caused in doing so); and/or
(c) suspend the supply of any Products and Services to the Customer,
(d) in which case the Supplier will not be liable to the Customer for any loss, costs or damages incurred by the Customer due to the Supplier exercising its rights under this clause and all costs incurred by the Supplier in exercising its rights under this clause shall be immediately due and payable by the Customer upon demand by the Supplier.
1.17 On termination of this Agreement for whatever reason:
(a) without limiting the rights and remedies available to the Supplier, the Supplier shall be entitled to issue an invoice for Products and Services supplied or partly supplied by the Supplier at the date of termination (which may include any Products Ordered by the Customer but not yet delivered) and such invoice shall be payable by the Customer in accordance with clause 4.1;
(b) such termination shall be without prejudice to the rights and remedies of any party in respect of any antecedent breach of this Agreement by the other party; and
(c) this clause 5.3, and clauses 9 to 12, and such other provisions which are incidental to, and required in order to give effect to those clauses, shall remain in full force and effect.
1.18 If the Supplier does not receive (in accordance with the terms of this Agreement) any amount due to it by the other Customer pursuant to the terms of this Agreement, then the Customer must pay interest at the Default Interest Rate on that amount (including interest payable under this clause) calculated from its due date to the date of its receipt in full by the Supplier (after, as well as before, judgment). Default interest payable under this clause shall be compounded monthly and added to the amount due. This obligation to pay default interest arises without the need for a notice or demand and is without prejudice to the other rights and remedies of the Supplier.
1.19 The Customer shall pay to the Supplier on demand all costs of and incidental to the enforcement or attempted enforcement of the Supplier’s rights, remedies and powers under this Agreement (including legal costs on a solicitor and own client basis) in the event of a breach or threatened breach by the Customer.
6. Delivery Timeframes
1.20 If the Supplier has indicated a date on, or timeframe within, which any Products will be delivered or Services supplied, the Customer acknowledges that such date or timeframe (as applicable) is indicative only and shall not be binding on the Supplier.
7. Collection of information
1.21 The Customer irrevocably authorises:
(a) any person to provide the Supplier such information as the Supplier may require in response to any credit enquiry relating to the Customer;
(b) the Supplier to collect, retain and use any information about the Customer, for the purpose of assessing the Customer’s creditworthiness or marketing Products and Services to the Customer; and
(c) the Supplier to disclose information about the Customer, whether collected by the Supplier from the Customer directly or obtained by the Supplier from any other source, to any third party for the purpose of providing or obtaining a credit reference, debt collection or notifying a breach by the Customer.
1.22 Where the Customer is an individual:
(a) the authorities under clause 7.1 are authorities or consents for the purposes of the Privacy Act 2020; and
(b) the Customer may request a copy of the information about the Customer held by the Supplier and require the Supplier to correct any incorrect information about the Customer held by the Supplier.
8. Customer Provided Information
1.23 The Customer warrants that all Customer Provided Information is true and correct and will promptly advise the Supplier in writing if any Customer Provided Information changes or is or becomes untrue, misleading or deceptive. The Supplier is not required to verify the accuracy of any Customer Provided Information and the Supplier shall not be liable for any costs, loss or damage incurred or suffered by the Customer as a result of any inaccuracy, error or omission in any Customer Provided Information.
1.24 The Customer warrants that it is not aware of any information or circumstance which has not been disclosed in writing to the Supplier which might reasonably be expected to affect the Products and Services.
9. Intellectual Property
1.25 All Intellectual Property associated with the Products and Services shall be the sole property of the Supplier at all times and the Customer agrees not to contest or challenge the Supplier’s ownership of, or other rights or interests in, such Intellectual Property.
1.26 The Customer must:
(a) take all reasonable steps to protect the Intellectual Property associated with the Products and Services and not cause or permit any damage to such Intellectual Property;
(b) promptly notify the Supplier of any infringement or threatened infringement of the Intellectual Property associated with the Products and Services; and
(c) co-operate with the Supplier to protect the Intellectual Property associated with the Products and Services against infringement or damage.
1.27 The Customer warrants that no Customer Provided Information will cause the Supplier to infringe any Intellectual Property of a third party and the Customer agrees to indemnify the Supplier against any action taken by a third party against the Supplier in respect of any such infringement.
1.28 The Customer acknowledges that the covenants contained in this clause 9 are reasonable in the circumstances and are necessary to protect and maintain the proprietary and other legitimate business interests of the Supplier.
1.29 The Customer shall maintain as confidential all information (including any financial or management information and any other material whether recorded in a tangible form or not) directly or indirectly concerning or relating to the business affairs of the Supplier and shall not at any time directly or indirectly:
(a) Disclose or permit to be disclosed to any person; or
(b) Use to the detriment of the Supplier,
(c) any such information, except to the extent required by law.
1.30 The Supplier is not liable for any defect or breach of warranty and shall have no liability or obligation in relation to any defective Products and Services:
(a) if, in the case of a defect in Services, the Customer fails to notify the Supplier in writing of the defect within 60 days of the date that the Services are supplied;
(b) to the extent that the defect or breach is caused directly or indirectly by any of the following that occurs during or after the Products and Services are delivered and supplied:
(i) a cause independent of human control;
(ii) any act or omission, including accidental damage, by a person who is not the Supplier or a person for whom the Supplier is responsible in law;
(iii) the use of any Products or Services for a purpose or in a way other than that had been advised in writing to the Supplier prior to the date of the Quote;
(iv) any inaccuracy, error or omission in any Customer Provided Information.
1.31 The Supplier shall not be liable to the Customer for any:
(a) Delay in supplying the Products and Services or non-performance of the obligations of the Supplier due directly or indirectly to circumstances beyond the control of the Supplier including strikes, disputes with sub-contractors and/or workmen, accidents, civil commotion, epidemics, floods, bad weather, delays in transportation, shortage of labour and/or materials, difficulties with variations, acts of God, acts, demands or requirements of any government, Council or similar body, the failure of the Customer or other third party to complete any work or provide detailed instructions to the Supplier whenever the same may be required within a reasonable time (or within the time specifically allowed for the same by the Supplier) and any other delays as a result of any failure of the Customer insofar as the same are not reasonably attributable to the Supplier (Delays).
(b) Costs, loss or damage incurred or suffered by the Customer as a result of the late, short or non-delivery of the Products and Services. Any time for delivery indicated by the Supplier shall be approximate only and shall not be of the essence of the contract between the parties.
1.32 To the extent permitted by law, the aggregate liability of the Supplier arising from any cause (whether in contract, equity, tort (including the negligence of the Supplier or any of its employees, contractors or agents), any enactment, or otherwise), is limited to the Price paid by the Customer in relation to the specific Products and Services giving rise to the claim against the Supplier.
12. Consumer Guarantees Act and Fair Trading Act
1.33 For the purposes of section 43 of the CGA and section 5D of the FTA, if the Products and Services are being supplied and acquired in trade (as that term is defined in section 2 of the CGA), the parties agree that the provisions of the CGA and sections 9, 12A, 13 and 14(1) of the FTA have been contracted out of and do not apply to the supply of the Products and Services.
13. Binding and Enforceable Agreement
1.34 Each party warrants and represents that:
(a) it has the legal right, authority and full power to enter into, exercise its rights and perform its obligations under the Agreement;
(b) it has taken all necessary corporate and other action to authorise this execution, delivery and performance of this Agreement by that party;
(c) no further authorisation, consent or approval of any person is required as a condition of the validity of this Agreement or to give effect to the transactions contemplated by the Agreement; and
(d) this Agreement constitutes a valid and binding obligation of that party and is enforceable against that party.
1.35 If any person enters into this Agreement as trustee of a trust, then that person warrants that:
(a) that person has the right to be indemnified from the assets of the trust and that right has not been lost or impaired by any action of that person including entry into this Agreement; and
(b) all of the persons who are trustees of the trust have approved entry into this Agreement.
1.36 No failure to exercise, and no delay in exercising, a right of any party under this Agreement will operate as a waiver of that right, nor will a single or partial exercise of a right preclude another or further exercise of that right or the exercise of another right.
1.37 No waiver by any party of its rights under this Agreement is effective unless it is in writing and signed by that party.
1.38 The Customer must not assign or otherwise dispose of, or declare a trust over or otherwise create an interest in, any or all of its rights under this Agreement without the prior written consent of the Supplier. Such consent may be withheld at the absolute discretion of the Supplier.
1.39 If any provision of this Agreement is or becomes invalid or unenforceable, that provision shall be deemed deleted from this Agreement and such invalidity or unenforceability shall not affect the other provisions of this Agreement, all of which shall remain in full force and effect to the extent permitted by law, subject to any modifications made necessary by the deletion of the invalid or unenforceable provision.
1.40 This Agreement is governed by, and is to be construed in accordance with, New Zealand law.
1.41 The parties submit to the non-exclusive jurisdiction of the courts of New Zealand in respect of all matters arising out of or relating to this Agreement, its performance or subject matter.
1.42 To the maximum extent permitted by law, this Agreement:
(a) records the entire arrangement between the parties relating to the matters dealt with in this Agreement; and
(b) supersedes all prior arrangements (whether written, oral or both) relating to such matters.