Terms and Conditions

1. Terms used

1.1 customer refers to any legal entity or person purchasing from the supplier.

1.2 confidential information means all information of a confidential nature provided by one party to another whether oral, written or embodied in any other physical or electronic form, whether in tangible form or not and whether provided before or after the commencement of the contract including information comprised of intellectual property rights but does not include information which is or becomes available in the public domain (other than because of a breach of these terms and conditions) or information disclosed in compliance with any applicable laws.

1.3 intellectual property rights means all of the supplier’s interest in all logos, trademarks (whether registered or unregistered), service marks, trade mark registrations, trade names, brands, patents, patent applications, designs, licences, inventions and technical data, concepts, ideas, moral rights, discoveries, drawings, techniques, specifications, standards, methods, models, maintenance training or training manuals and other know-how, trade secrets and any copyright materials and all other intellectual property rights and confidential information in each case used and developed by the supplier

1.4 products means all present and after acquired products including all furniture and furnishings and any other products supplied to the customer by the supplier.

1.5 supplier means Treology Limited.

2. General

2.1 The supplier supplies all products to the customer on these conditions, which shall constitute the entire agreement between the supplier and the customer. It is expressly agreed that there are no other understandings, representations or warranties of any kind (express or implied) forming part of this contract, or in any credit application. In particular: 

2.1.1 Any condition contained in the customer’s order that is, inconsistent with, qualifies or is contrary to these conditions, shall have no effect unless that condition is expressly accepted in writing by the supplier.

2.1.2 Any variation, waiver or cancellation of the customer’s order shall have no effect unless accepted in writing by the supplier. Where the supplier accepts cancellation, the supplier may levy a handling charge of up to 10% of the price.

2.1.3  Where the customer and the supplier agree to a variation in the quantity of the products, the products shall be priced either at the rate applicable to the original quantity or the revised quantity, at the sole discretion of the supplier.

2.1.4 The placement of an order shall for all purposes be deemed to be acceptance of these conditions.

2.2 The supplier reserves the right not to accept an order placed by the customer, and to change the customer’s credit limit, decline credit or close the account.

3. Quotations, prices and terms of payment

3.1 Any quotation is based on cost of labour, materials and equipment, installation. freight, variable and fixed expenses and where appropriate rates of currency exchange operating at the date of quotation. Any increase in the cost to the supplier which occurs between the date of quotation and delivery, shall be payable by the customer and any such increase shall include a pro rata increase in the supplier’s profit margin.

3.2  Irrespective of all prices listed or quoted, all products are supplied at the prices ruling at the date of delivery and the supplier reserves the right to pass on to the customer any change in price after acceptance of the customer’s order.

3.3 All prices are exclusive of products and services tax and all other taxes, charges and duties, which shall be payable by the customer.

3.4 Payment shall be way of a 50% deposit with the balance of the purchase price payable prior to delivery.

3.5  If payment is not made to the supplier by the due date:

3.5.1 the customer shall be in default under these conditions and the supplier may exercise any or all of the rights and remedies contained in these Term and Conditions, or otherwise available at law;

3.5.2 the customer must pay interest on any money in default at the rate of 2% per month, or such lower rate as is the maximum penalty rate under any applicable law (including, where applicable, the Penalty Interest Rate Act 1985 (Victoria)), payable on a daily basis from the due date of payment, provided that the charging of such interest shall not extend the due date of payment or be deemed so to do;

3.5.3 the customer shall be liable for all expenses (including solicitor - own client legal costs and debt collection costs) incurred by the supplier as a result of default; and

3.5.4 the supplier may withhold the supply of products.  

3.6 Receipt by the supplier of any payment method, shall not be deemed to be payment until the same has been honoured and cleared and until such time receipt shall not prejudice nor affect the supplier’s rights, powers and remedies against the customer and/or the products.

3.7 The customer shall make all payments due to the supplier, whether in respect of the purchase price or otherwise, in full without deductions of any nature whatsoever.

3.8 The supplier may in its sole discretion allocate any sum received from the customer towards any invoice or amount owing by the customer. The supplier shall not be obliged to make such allocation at the time of receipt but may do so upon any subsequent accounting between the parties. In the absence of any such allocation, payments shall be deemed to be applied first towards any sum that is not secured by this contract and secondly towards any sum which in the supplier’s opinion is secured by this contract.

4. Validity and allocation of payment

4.1 The customer acknowledges that:-

4.1.1 all payments made to the account of the customer with the supplier are in the ordinary course of the customer’s business;

4.1.2 all payments received by the supplier to the customer’s account are received by the supplier on the reasonably held belief as to the validity of those payments unless otherwise advised by the customer and;

4.1.3 in accepting such payments on or after the due date for payment thereof the supplier has altered its position in reliance on the validity of such payments.

4.2 The supplier may in its sole discretion allocate any sum received from the customer towards any invoice or amount owing by the customer. The supplier shall not be obliged to make such allocation at the time of receipt but may do so on any subsequent accounting between the parties. In the absence of any such allocation, payments shall be deemed to be applied first towards any sum that is not secured by these terms and conditions and secondly towards any sum which in the supplier’s opinion is secured by these terms and conditions.

5. Delivery

5.1 Any quotations of delivery times by the supplier are made in good faith, but are estimates and the supplier shall not be bound by such quotation.

5.2 Unless otherwise determined by the supplier, delivery will be on sale Free on Board (fob) basis and shall be completed when the products effectively arrive at the airport or port nearest to the point of dispatch or leave the suppliers custody for transport to any depot for dispatch. The supplier will select the method of delivery.

5.3 Unless otherwise determined by the supplier, the customer assumes the risk in respect of all products from the date of delivery.

5.4 The supplier will make every effort to complete delivery on the date agreed, but the supplier shall not be liable for late delivery or consequential damages of any kind arising out of late delivery nor will the supplier accept cancellation of any order because of late delivery.

6. Shortages, damage or loss in transit

6.1 If there is any shortage in the quantity of products delivered the customer’s rights are limited to requiring the supplier to make up the shortage and the customer shall not be entitled to cancel the order. No claim for shortages in quantity will be allowed unless the customer gives notification of the shortage in writing within 10 days of the delivery and provides a reasonable opportunity for the supplier to investigate the claim.

6.2 Products leaving the supplier’s premises are adequately packed. Claims for damage or loss in transit must be made against the carrier in the prescribed manner.

6.3  No claims will be considered after 7 days of receipt of products. While no liability for products damaged or lost in transit will be accepted by the supplier, details of any claim should be advised to the supplier.

7. Return of products for credit

7.1 Products supplied in accordance with the customer’s order can only be returned with the express approval of the supplier.

7.2 Requests to return products must be submitted within 10 days from date of supply and the original invoice number must be quoted.

7.3 Where products are accepted for credit, they must be delivered at the customer’s expense into the supplier’s store from where they were purchased in original condition and packaging, unless otherwise agreed.

8. Liability of claims

8.1 All claims against the supplier by the customer must be made within 10 days of receipt of the products.  The supplier reserves the right in its discretion to repair or replace any products or to refund or credit the portion of the price applicable, in respect of any claims accepted.  The supplier will use its best endeavours to enforce any guarantee or warranty given by the manufacturers of the products sold by the supplier.

8.2 The total liability of the supplier whether in contract tort or otherwise for any loss, damage or injury arising directly or indirectly from any defect in, or non-compliance of the products or any other breach by the supplier of its obligations under this agreement, will not in any circumstances exceed the price of the products.

8.3 The supplier will not be liable for any consequential, indirect or special damage or loss of any kind nor is the supplier liable for any damage or loss incurred by the customer’s employees, agents, customers or other persons whatsoever.

8.4 The customer shall indemnify the supplier against any claim by the customer’s employees, agents, customers or other persons (whether similar to the foregoing or not) in respect of any loss, damage or injury arising from any defect in or non-compliance of the products or in respect of any other matter whatsoever.

9. Warranties

9.1 All warranties, descriptions, representations or conditions whether implied by law, trade, custom or otherwise and whether relating to fitness, merchantability, suitability of purpose, quality of workmanship or otherwise and all specific conditions, even though such conditions may be known to the customer, are expressly excluded to the maximum extent permitted by law.

9.2 Without limited clause 9.1, where the customer is “in trade” within the meaning of the Fair Trading Act 1986 (New Zealand) or the Consumer Guarantees Act 1993 (New Zealand) (as the case may be), the supplier and the customer agree to contract out of the Consumer Guarantees Act 1993 (New Zealand) and sections 9, 12A, 13 and 14 of the Fair Trading Act 1986 (New Zealand).

9.3 In the event the customer is acquiring the product for purposes other than that of a business, no provisions shall in any way limit or purport to limit the application of the Fair Trading Act 1986 (New Zealand) or Consumer Guarantees Act 1993 (New Zealand).

9.4 Nothing in these conditions purports to modify or exclude the conditions, warranties, guarantees and undertakings, and other legal rights, under the Australian Consumer Law and other Australian laws which cannot be modified or excluded.

9.5 Without limiting the above, to the extent permitted by law, the liability, if any, of the supplier arising from the breach of any implied conditions or warranties, or failure to comply with a statutory guarantee under the Australian Consumer Law, in relation to the supply of products, shall at the supplier’s sole discretion be limited to:

9.5.1 The replacement of the products or resupply of the products, or the cost replacement or resupply of the products;

9.5.2 refund of the purchase price; or

9.5.3 the repair of the products, or the cost of repair of the products.

10. Default

10.1 A Default Event is any of the following:

10.1.1 Any default by the customer under these conditions including a failure to make payment.

10.1.2 The customer becomes insolvent or is adjudged bankrupt, ceases or threatens to cease to carry on its business; a receiver, liquidator, official assignee or statutory manager of the customer’s assets is appointed, or the customer makes or proposes an arrangement or compromise with creditors.

10.1.3 A change in the effective control and/or management of the customer.

10.1.4 Any other event which in the sole discretion of the supplier gives rise to concern as to the timely payment of the customer’s debts.

10.2 After a Default Event, the supplier, without prejudice to any other remedies, may exercise any one or more of the following:

10.2.1 Demand payment of the arrears as well as payment in advance for any undelivered products before delivery of those products.

10.2.2 Cancel this contract and any other contract between the supplier and the customer, suspend or cancel the customer’s account, and/or cancel any outstanding orders by the customer and in each case seek damages.

10.2.3 At any time without notice, directly or by its agents or employees, enter any land, premises or property where it believes products supplied by the supplier to the customer may be and remove the products

10.3 After a Default Event the customer shall at the supplier’s request:

10.3.1 re-deliver all products to the supplier and/or do anything reasonably necessary to allow the supplier to retake possession of the products supplied by the supplier;

10.3.2 instruct any third parties who owe money in respect of the products to pay that money direct to the supplier; and

10.3.3 make any records available which may assist the supplier to take the proceeds of the products.

10.4 Notwithstanding the passing of time since the Default Event, the supplier can invoke the provisions of clause 10.3 at any time.

10.5 The customer shall pay all costs (including solicitor - own client costs and debt collection costs) incurred by the supplier in the enforcement of these conditions.

11. Property and risk

11.1 Risk in all products sold by the supplier passes to the customer on delivery even though title may not.

11.2 Title in all products remains with the supplier until such time as full payment is made in cleared funds for all amounts owing by the customer to the supplier for all products delivered by the supplier from time to time.

11.3 Without limiting clause 11.2, for the purposes of the Personal Properties Securities Act 1999 (New Zealand) and the Personal Property Securities Act 2009 (Australia), to secure all of the customer’s obligations to the supplier at any time, the customer grants a security interest to the supplier in all of the customer’s present and after-acquired property except for those items or kind of the customer’s personal property (excepted property) which has not been supplied by the supplier to the customer (other than excepted property which is or comprises proceeds of any personal property supplied by the supplier).

11.4 All payments received by the supplier from the customer will (regardless of any direction or intention expressed by the customer in respect of such payments) be applied in such manner as the supplier considers necessary or desirable to preserve the supplier’s rights as the secured party under a purchase money security interest to the maximum extent.

11.5 The customer:

11.5.1 agrees that nothing in sections 114(1)(a), 133, and 134 of the PPSA applies to these conditions; and

11.5.2 waives its rights under sections 121, 125, 129 and 131 of the PPSA, and the right to receive a copy of a verification statement in respect of any security interest.

11.6 The expressions ‘after-acquired property’, ‘financing statement’, ‘purchase money security interest’, ‘security interest’ and ‘verification statement’ each have the meanings given to them in the Personal Property Securities Act 1999 (New Zealand).

12. Intellectual property

12.1 All intellectual property rights and protection of all confidential information in respect of the products are retained by the supplier and cannot be distributed by the customer.

12.2 The customer will immediately inform the supplier of any infringement or potential infringement of the supplier’s intellectual property rights.

12.3 In the event that any claim is made against the customer for infringement of any person’s intellectual property rights arising out of the customer’s use of the supplied products the supplier may elect, at its own expense, to conduct any ensuing litigation and all negotiations for a settlement of the claim.  The customer will be liable for the costs of any payment made in settlement or as a result of an award in a judgment.  If the supplier so elects, the customer is to grant the supplier the right to assume sole authority to conduct the defence or settlement of such claim or any related negotiations.  The customer will provide the supplier with all reasonable information, co-operation and assistance.

12.4  This paragraph 12 will survive termination of the contract.

13. Errors or omissions

13.1 Clerical errors or omissions whether in computation or otherwise in any quotation or invoice shall be subject to correction.

14. Dispute resolution

14.1 If any dispute arises between the parties in relation to these terms and conditions representatives of the supplier and customer shall meet within 14 days of the dispute in order to endeavour to resolve the dispute by negotiation. If such efforts are unsuccessful the parties will submit the dispute to mediation in accordance with the Mediation Protocol of the Arbitrators’ and Mediators’ Institute of New Zealand Inc. with a mediator appointed by the President of the New Zealand Law Society if the parties are unable to agree on such appointment within 14 days.

14.2 In the event of the mediation referral being unsuccessful after 30 days from the submission of the dispute it will be referred to arbitration in accordance with the provisions of the Arbitration Act 1996.

14.3 Neither party may initiate any court proceedings (with the exception of an application for injunctive relief) in respect of any dispute under these terms and conditions without first undertaking the processes set out in clauses 14.1 and 14.2.

14.4 Time shall be of the essence in relation to this clause 14.

15. Confidential information

15.1 Each party will hold the confidential information of the other party in strict confidence and will not disclose or permit to cause the disclosure of any such confidential information without the other party’s prior written consent or make use of the confidential information for any purposes other than the furtherance of these terms and conditions or the performance of the contract.

15.2 The confidential information may only be disclosed to such employees and advisors of the receiving party as need to know the confidential information and who have entered into an agreement or undertaking equivalent to that set out in these terms and conditions.

15.3 This paragraph 15 will survive termination of the contract.

16. Force Majeure

16.1 The supplier shall not be liable to the customer for any loss or damage directly or indirectly arising out of or in connection with any delay in delivery of the products, or failure to perform any term of this contract where such delay or failure is caused directly or indirectly by an act of God, fire, armed conflict, labour dispute, civil commotion, intervention of a government, inability to obtain labour, materials, facilities, accidents, interruptions of, or delay in transportation or any other cause beyond the supplier’s control.

17. Change of name or legal entity

17.1 The customer shall notify the supplier in writing of any change in name or legal entity of the customer and the customer shall complete a new credit application form for the new legal entity if requested by the supplier.

18. Assignment

18.1 The supplier is entitled at any time to assign to any other person all or part of the debt owing to the supplier by the customer.  Any assignee shall be entitled to claim full rights of set off or counter claim against the customer, its charge holders or successors in respect of the debt or any part of the debt assigned.

19. Waiver and forbearance

19.1 All the rights, powers, exemptions and remedies of the supplier shall remain in full force notwithstanding any neglect, forbearance or delay in enforcement and the supplier shall not be deemed to have waived any condition unless such waiver is in writing and signed by a duly authorised officer of the supplier.  Any such waiver shall apply to operate only in the particular transaction, dealing or matter in respect of which it was given.

20. Information and privacy act

20.1 The customer authorises the supplier to:

20.1.1 collect all information it may require from any third parties and in respect thereof authorises third parties to release such information to the supplier;

20.1.2 hold all information given by the customer, or all such third parties, to the supplier for the purpose of this agreement or otherwise related to the supplier's business; and

20.1.3 use all such information, including the giving of all such information to third parties, to facilitate the collection of any moneys owing or otherwise related to the supplier's business.

21. Warranty

21.1 Subject to clause 9, the supplier gives no warranty or guarantee in relation to the products or services other than as expressly provided by the supplier to the customer in relation to the specific products or services provided by the supplier to the customer.

22. Notice

22.1 Any notice required to be served under these terms and conditions shall be deemed to have been properly served if left out or posted in a pre-paid letter addressed to the other party at the place of business or residence of such party and any service by post shall be deemed to have been effected when the letter containing such notice would have been delivered in the ordinary course of post.

23. Applicable law

23.1 The contract and these terms and conditions shall be governed by New Zealand law, and the parties submit to the exclusive jurisdiction of the courts of New Zealand.

24. Entire Contract

24.1 The supplier and the customer agree that these terms and conditions express the complete agreement between them.  There has been no representation made by either party to the other except as expressly set out in this document. There is no inconsistency with the terms of any order that may be lodged by the customer. If there is any inconsistency then any such order will be of no effect.  The contract will not be subject to change or modification except with the prior written consent of both parties.