Gift shop Home & Garden - Terms & conditions

Terms and Conditions 2009

HOME & GARDEN LTD
TERMS AND CONDITIONS OF ALL SALES

1. GENERAL
(a)             These terms and conditions in conjunction with the Account Application form and Personal Guarantee Form are the contract (“contract”) between Home & Garden (2006) Ltd (“Home & Garden”) and all its related companies and all customers (“the customer”) (“collectively referred to as “the parties”) for all orders, sales or transactions, and for any goods or services Home & Garden provides the customer (“the product”). Other inclusions to the contract may consist of a quotation, an invoice, statement, or confirmation of a customer’s order by Home and Garden;
(b)             The parties acknowledge that this contract contains the whole and entire agreement between the parties. Any other terms the customer may wish to introduce (whether upon the customer’s order or anywhere else) which are inconsistent with the contract will not apply and will not constitute a counter-offer unless Home & Garden specifically agrees to them in writing. The parties agree that Home & Garden may, from time to time, amend these terms and conditions with immediate effect;
(c)             All orders placed and/or receipt of products by the customer constitutes the customer’s acceptance of, and agreement to be bound by Home and Garden’s current terms and conditions;
(d)             The parties agree that Home & Garden may correct any error or omission it may inadvertently make at any time and the correction will replace any erroneous or omitted information without consequence or effect on Home and Garden;
(e)             Home and Garden’s sales people, representatives and agents are not authorised to give any guarantee, warranty or representation in addition to, or contrary to these terms and conditions, unless expressly confirmed in writing by Home & Garden so Home & Garden will not be bound by any such unauthorised statement (verbal or written);

2. NOTIFICATION
The customer must, and agrees to, notify Home & Garden in writing within seven (7) days of:

Any alteration of the name or ownership of the customer or the trading address, or in the ownership of the business name of the customer, then the customer agrees that it shall be entirely liable to Home & Garden for any and all monies owed to Home & Garden for product supplied to the new owner until notice of any such change is received;
The issue of any legal proceedings against the customer or the appointment of any provisional liquidator, liquidator, receiver, receiver manager or administrator to the customer;

3. PRICE & MINIMUM ORDER
(a)             All products are charged at the price ruling at the date of invoice, Home & Garden reserves the right to change product prices at any time from those promulgated, and the customer agrees to pay such adjusted prices;
(b)             GST is not included in any price, fee, charge or quotation, and in all circumstances will be the customer’s responsibility. Any increase in the amount of GST between the date a product is dispatched and the date a payment is received for the product will be the customer’s responsibility;
(c)             Minimum order quantities (“MOQ”) apply to all products, and are enforced to receive corresponding pricing on pricelists, and are minimums per invoice. An order received for a quantity of a product less than is MOQ may be invoiced at the product’s full list price, however for the customer’s benefit, Home and Garden’s standard procedure is to increase the quantity of the product ordered up to its MOQ;
(d)             Home & Garden may offer a bulk discount with required bulk purchase quantities for products, which are enforced to obtain stated bulk buy prices, without exception, and are minimums per invoice;
(e)             A customer’s invoice shows their buy price, net of any discount, and based on product quantities invoiced;
(f)              Home & Garden may have a minimum spend requirement per invoice, excluding GST and freight charges, and Home & Garden reserves the right to charge a handling fee on orders that do not meet the minimum, which the customer agrees to pay;
(g)             For orders of non-stocked products or for large quantities of any product (stocked or non-stocked) Home & Garden may require the customer to pay a deposit upon placing the order. The customer agrees to pay any such required deposit and Home & Garden will not confirm the order until the customer has paid the deposit in full;

4. USE OF PRODUCT

The customer guarantees that products are not being purchased, without Home and Garden’s written agreement for:
Wholesale resale; and
Resale at any type of market, whether temporary or permanent; and
The customer’s personal domestic or household use; and
Resale in an online store, online auction, or any other online format; and
Immediately upon Homes and Garden Ltd’s request, and whether or not Home & garden has previously provided written agreement, the customer will remove any product from an environment or situation Home & Garden deems inappropriate;

5. PAYMENT

All customer’s must complete Home and Garden’s Account Application form and agree to Home and Garden’s terms and conditions of sale before any order will be processed, without exception;
Home and Garden’s terms of sale for first orders from new customers may be on a pro-forma invoice basis, solely at Home and Garden’s discretion and Home & Garden may only process an order once payment has been received in full;
The customer agrees to make full payment to Home & Garden not later than the due date shown on an invoice or statement. The due date is when Home & Garden must have received a payment. The customer acknowledges that they will be in default under the contract should full payment not be made by the due date; and clause 6 will apply;
The customer agrees that they are not entitled to withhold a payment or make a deduction from invoiced values without Home and Garden’s written consent. The customer must contact Home & Garden prior to a payment due date if there may be a problem with an on-time payment and Home & Garden may try to accommodate the customers’ request;
The customer agrees that if any invoice is in dispute, the undisputed portion of the invoice will be paid in full as per this clause. Payment of only the disputed portion may be withheld provided the matter was brought to Home and Garden’s attention immediately upon its discovery and a letter setting out the particulars of the dispute is faxed to Home & Garden within 5 working days of the dispute arising. The parties agree that Home & Garden must receive the customers payment for the resolved disputed portion within five working days from the date Home & Garden is satisfied the dispute has been resolved, or the amount will be considered in default and clause 6 will apply;
A payment is applied first to late payment fees, then overdue amounts before a current invoice or order;
When the customer pays an invoice, it is agreed that they have absolutely accepted the sale without recourse;
Receipt of a cheque by Home & Garden does not represent payment until cleared funds are available. If a customer’s cheque is returned by the bank the customer agrees to pay a cheque dishonour fee and/or any other fee associated with the bank;
If the customer wishes to pay any invoice by credit card, the customer must complete Home and Garden’s Credit Card Agreement and this option is only available prior to the generation of any invoice. Invoices will be charged in full to the card specified prior to despatch of a customers' order. The burden is on the customer to ensure that any credit card details Home & Garden holds for recurring payment authorities are correct and up to date.
The customer understands that Home & Garden processes credits and refunds that arise at the end of calendar month;

6. DEFAULTS IN PAYMENT

The customer agrees that any discount received from full list price is only final when payment has been received in full for all amounts due, on time, as per the contract. If payment is received after the due date, Home & Garden may reverse any discount and full list price will apply which are then due immediately;
The customer agrees to pay any late payment fee or interest that Home & Garden may charge for payments received after the payment due date. Home and Garden’s minimum late payment fee is $10 per month, per invoice, however if greater than the minimum fee, the customer will instead be charged interest at a rate of 5% per month. Late payment fees or interest are without prejudice to any other remedies Home & Garden may have;
Home & Garden may take steps to recover an overdue amount one month following a payment due date, with no additional notification of commencing debt collection being given in addition to an invoice or statement sent;
Home & Garden reserves the right to suspend delivery to the customer if the customer does not adhere to the terms of payment or if at any time Home & Garden deems the customers’ credit or payment history to be unsatisfactory. Upon Home and Garden’s request, the customer agrees to complete a credit card agreement as a mandatory requirement for a continued account with Home and Garden. Home & Garden may agree to review this payment method after three consecutive orders, upon the customers' request provided the customer has sufficient trading history in that period;

7. PRODUCT AND DELIVERY

Home & Garden reserves the right to change, correct or update product specifications at any time. The customer acknowledges that actual product colours may differ from colours shown in photographs or printed material;
The customer shall, at its own expense, arrange collection of the products ordered from Home & Garden unless, at its sole discretion, Home & Garden arranges delivery to the customer, at the customers' expense, by such carrier and form of transport Home & Garden considers appropriate. All prices exclude GST, packaging and delivery charges;
If there is a discrepancy or shortage in the products delivered, the customer must notify Home & Garden by fax or phone of the variance within 48 hours of delivery of the products, or the customer agrees the delivery was received correct;
If delivery fails to be received, the customer must notify Home & Garden by fax or phone within 5 days of receiving a statement relating to that invoice or the customer agrees they have received the whole delivery as invoiced;
The customer agrees and understands if damage has occurred they must refuse to sign for the delivery. Signing for a delivery confirms it was received in good order and the liability of Home & Garden and of the courier company has ended. If the customer signs for a delivery and did not check for damage prior to accepting it, and damage is sub sequentially discovered such damage to any product is the customers’ liability only;
Any delivery times Home & Garden may quote are estimates. The customer agrees that Home & Garden is not liable for any direct or indirect consequences arising from any delay or non-delivery of products;
Home & Garden reserves the right to deliver an order in instalments. Should Home & Garden fail to deliver or make a faulty delivery of one or more instalments this will not entitle the customer to reject the contract;

8. PRODUCT RETURNS

The customer agrees that the return of any product for credit or any other purpose will be done using Home and Garden’s returns procedure or product will be returned to the customer at the customers’ expense;
If the customer made a genuine error in ordering any product Home & Garden has supplied, Home & Garden may accept the return of such product and grant the customer a credit less 20% restocking charge provided the return condition in sub-clause 8(d) are met fully. The customer also agrees to pay the initial delivery charge as invoiced, as well as the courier charge for the return to Home and Garden. Returns must be made using a prepaid track and trace courier with signature obtained for proof of delivery;
A customer may return a product if it is clearly not as described, or if it has been proven to Home and Garden’s satisfaction that products delivered were not ordered by the customer, for a full credit. Home & Garden will accept at its own expense the return of such products provided that the return conditions of sub-clause 8 (D) have been met in full;
These requirements must be met in order for Home & Garden to consider any product for return without exception

(i)              The request to return the product is made to Home & Garden by fax within 48 hours of receipt of the products
(ii)             Products are in original, un-opened, undamaged, re-saleable condition without price stickers or similar and
(iii)            Home & Garden receives the return accompanied with a copy of the invoice, within seven (7) days of the request to return the products having been accepted by Home and Garden

The customer will adequately package any product being returned to prevent damage in transit. The customer agrees that damage incurred in transit to such product is their sole responsibility and specifically not Home and Garden’s;
The customer acknowledges that receipt by Home & Garden or its representatives of any product returned other than in accordance with this clause does not constitute Home and Garden’s acceptance of the return of the product;
The customer agrees that any product sold on sale, an end of line or clearance item, or similar, or any non-stocked product ordered for the customer, or a large quantity of any product (stocked or non-stocked) or any product that has been customised in any way, is a final sale and cannot be returned for any reason;
Any product broken or returned for a credit or discount as agreed is left as a credit on your account. No payments are issued through bank accounts or credit cards.

9. ORDERS, BACK ORDERS, SUBSTITUTIONS AND CANCELLATIONS

Home & Garden will place orders for any product that is out-of-stock on back order until the product is back in stock and in addition will substitute a similar or like product in the interim;
Home & Garden will provide the customer with a copy of the orders, if requested by fax or email. The burden is on the customer to ensure that the email address Home & Garden holds is correct and up-to-date. When Home & Garden supplies products from a customer’s order, any products that are out of stock will be put on back-order and delivered when stock arrives;
Home & Garden will only accept the cancellation of an ordered or back-ordered product in writing by fax prior to the goods being despatched;
If the customer did not amend or cancel any ordered or back-ordered product prior to it being despatched, the customer agrees to accept the delivery. Further, if the customer requests to return such product, Home and Garden’s policy regarding having made a genuine error in ordering will apply to the return, as per sub-clause 8(b);
For cancellation of special orders of non-stocked products, the customer accepts and agrees to pay the greater of either the deposit or all expenses incurred to date and those that will be incurred following cancellation of the order. Home & Garden will not accept cancellation for an order of products that are not regular stock which are in the processes of manufacture or are ready to be shipped;

10. WARRANTY

No warranties, representations or guarantees are given, made or implied by Home & Garden except those which cannot be excluded by law, in respect of any product supplied. Where it is lawful to do so, Home and Garden’s liability for a breach of a condition or warranty is limited to (at Home and Garden’s discretion) repair or replacement of the product, supplying an equivalent product, payment of repairs or replacing the product or acquiring equivalent product;

Home & Garden is not responsible for failure or deterioration of any product whose useful life has been reached, and where products have been affected by improper handling, storage, shop soiling, electrical surges, or similar, acts of god, other adverse conditions, alteration or interference by other parties, the use of products outside the normal or intended purposes of the products or outside the directions or limitations imposed by Home and Garden, or otherwise in an improper or abnormal manner or circumstances outside Home and Garden’s control;

11. CONSUMER GUARANTEES ACT 1993 (“THE ACT”)

As per the act, where a customer acquires any product for the purpose of a business, the Act will not apply. The customer agrees to include in its conditions of sale that the Act will not apply where a client of the customer is acquiring the products for the purposes of a business;
The customer agrees to indemnify Home & Garden for any liabilities, losses, damages, claims, costs or expenses incurred by Home and Garden, without exception, if the customer fails to do so;

12. CLIENT STATUS AND POINT OF SALE MATERIAL

The sale of products to the customer is on a non-exclusive basis and Home & Garden has the right to sell all products to other parties at such prices and terms of sale without limitation on each and every occasion;
Home & Garden has the right to refuse or discontinue supply of its product to any customer at any time for any reason;
Any promotional item that Home & Garden may provide the customer will remain Home and Garden’s property, including display cases, point of sale material, signage, logos, catalogues, unless purchased from Home and Garden. The customer will be charged the replacement cost for any item if damaged, lost or not returned on request in reusable condition;
Home & Garden reserves the right to recall or remove a display case, point of sale or display item from any location if the customer has not ordered sufficient product from Home & Garden to properly fill the unit. Point of sale material may only be used to display products purchased from Home and Garden;
The customer does not, by reason of the purchase of the products, acquire any rights to the copyright, patent, trademark, design and other intellectual property rights held by Home & Garden therein;

13. RISK, TITLE AND THE PERSONAL PROPERTY SECURITIES ACT 1999 (“the PPSA”)

Risk of loss, damage or deterioration of the products will pass to the customer upon either the product being uplifted by the customer or its representative, or the product being delivered to the customer;
Title in the products will not pass to the customer in any circumstance (upon delivery or taking possession) until payment of absolutely all outstanding amounts is made in full to Home and Garden. Until title has transferred to the customer, the customer may sell the products as stock in the ordinary course of the customer’s business;
The customer acknowledges that for so long as Home & Garden retains title in the products, the customer will act as Home and Garden’s trustee in respect of the products. Those products must be readily identified and distinguished as Home and Garden’s sole property and/or all proceeds (in whatever form) that the customer receives from the sale of any of the products are readily identifiable and traceable;
Home & Garden is entitled to recover from the customer at all times the value of the products invoiced as a liquidated sum;
The customer will fully insure all of Home and Garden’s products held as stock at its premises, and all promotional products that may be supplied to the customer, as per clause 12 for their full replacement value;
The parties agree to contract-out of the PPSA to the maximum extent permitted by law, as per Section 107 of the PPSA. Home & Garden and the customer agree that sections 114(1)(a), 116, 117(1)(c), 119, 120(2), 121, 125, 126, 127, 129, 131, 133 and 134 of the PPSA do not apply to the security created by these terms and conditions;
The customer will, as and when required by Home and Garden, at its own expense, provide all reasonable assistance and relevant information to enable Home & Garden to register a financing statement or financing change statement and generally to obtain, maintain, register and enforce Home and Garden’s security interest in respect of the products supplied, in accordance with the PPSA;
The customer will not register a financing change statement or a change demand in respect to the products without Home and Garden’s prior written consent;
The customer waives its right to receive a verification statement in respect of any financing statement or financing change statement registered by or on behalf of Home & Garden in respect of the security interest created by these terms and conditions;

14. RECOVERY

If the customer is declared bankrupt, or enters into any compromise or arrangement with its creditors, or does any act which would render it liable to become insolvent or be liquidated or if a resolution is passed or an application is made for liquidation, or if a receiver is appointed over all or any of the assets of the customer:

The authorities Home & Garden allows to the customer in sub-clause 13(b) are automatically revoked and
Home and Garden, without prejudice to any other right it has at law or in equity, may at its option, suspend or terminate the contract, and payment for products delivered to that date any other moneys owing are immediately due and payable.

Home & Garden reserves the right to enter the customer’s premises where the products are situated, without notice, for the purpose of recovering possession of the products in the event of any default in payment. The customer entirely agrees that Home & Garden is not responsible or liable for any damage thereby caused;
Home & Garden may resell any or all of the products recovered and will apply the proceeds toward monies the customer owes Home and Garden. Home & Garden may apply a credit to monies the customer owes if the products are in suitable condition as per sub-clause 8(d)(ii) less restocking charges as per sub-clause 8(b) and other costs and expenses;
The customer is liable for all expenses and costs Home & Garden incurs, which are payable on demand without exception, in recovering and attempting to recover any overdue amount or in recovering possession and reselling products; including legal costs, debt collection commissions, travel, transportation, storage charges etc;
The customer authorises Home & Garden to collect, retain and use information on it for the purposes of recovering overdue amounts payable, but also for disclosing to a third party details of this application, or for the purpose of providing credit references when requested to do so by the customer;

15. LIABILITY
(a) Except where the Consumer Guarantees Act 1993 applies, it is agreed that Home & Garden is not liable for any consequential, direct, indirect or economic loss, or any damage or injury suffered by the customer arising from any defect in any product, or breach of any obligation under the contract, or from cancellation of the contract;

16. DISPUTE RESOLUTION – MEDIATION AND ARBITRATION
                If any dispute or difference arises between the parties as to the meaning or application of
                any part of the contract, or any other matter in connection with or which may have an
                effect on the contract the dispute or difference (“the issue”) shall be resolved by the
               following procedure:

By negotiation between the parties within seven (7) days of notification of the issue, all parties using their best endeavours and acting in good faith in attempting a resolution;
Or, in the event of failure to reach an agreement under sub-clause 16(a) an independent mediator shall be appointed by the parties, or failing agreement between the parties, by the Arbitrators’ and Mediators’ Institute of NZ Inc within fourteen (14) days of notification of the issue;
In the event of failure to reach a resolution under sub-clauses 16(a) and 16(b) then the issue shall be referred to arbitration in accordance with the Arbitration Act 1996 or its revised legislation, as applicable. Pending any such arbitration, the parties shall comply with the terms of the contract without prejudice to any issues still unresolved. The issue shall be submitted to the arbitration of a single arbitrator to be agreed upon between the parties, or failing agreement, the parties will each appoint an arbitrator. The appointed arbitrators will appoint an umpire for the arbitration prior to the commencement of the arbitration;

17. ENFORCEABILITY
(a) New Zealand law governs the contract
(b) The clauses of the contract are severable and if any clause or provision is viewed or held to be invalid or unenforceable by any competent Authority or Court with jurisdiction to consider such clauses, the clause will apply as modified by the Authority or the Court, or in the event it is not modified by the Authority or Court, then such invalidity or unenforceability will not affect the remainder of any clause or the remaining provisions of the contract, and the contract will continue to be enforceable by the parties.