Terms and conditions of trade for Goods & Services Supplied
These Conditions are the terms and conditions under which Smartspace Workplace Solutions Limited “SWSL” (us or our or we) supplies Goods or Services to the purchaser named in the applicable order form, purchase order, quotation or invoice for the Goods or Services (you or your). These Conditions prevail over any additional or inconsistent conditions specified by you, or appearing in any purchase order from you, and no variation to these Conditions will be binding on us, unless specifically accepted by us in writing.
1.1 For the purposes of these Conditions, the following terms have the following meanings:
Conditions means these goods and services supply terms and conditions;
Goods means the goods as more particularly described in the applicable quotation, order form, invoice, packing slip or purchase order for those goods;
GST means goods and services tax payable under the Goods and Services Tax Act 1985;
PPSA means the Personal Property Securities Act 1999 (including any amendments to that legislation); and
Services means the services as more specifically described in the quotation, order form, invoice or purchase order for such services.
2.1 No quotation for Goods or Services will be binding on us if it is not given in writing.
2.2 Any quotation given by us for the Goods or Services will lapse and be invalid if it has not been accepted by you by the date for acceptance specified on the quotation form. If no date for acceptance is given on the quotation form, then the quotation will lapse and be invalid if it has not been accepted by you within 30 days following the date of issue of the quotation.
2.3 We may, but are not required to, agree to extend the date for acceptance of any quotation. No extension will be binding on us unless it has been given in writing.
2.4 We may withdraw a quotation at any time before acceptance by you. No quotation will be binding on us if the quotation was given based on incomplete, inaccurate or misleading information provided by you.
2.5 In the event of any conflict or inconsistency between any terms and conditions of any quotation and these Conditions, the relevant terms and conditions of the quotation will prevail.
2.6 We reserve the right to alter any quotation as a result of circumstances beyond our control.
3.1 The price for the Goods or Services will be the price set out in the quotation or as otherwise agreed by the parties in writing. Pricing errors may be corrected at any time. All prices are in New Zealand dollars unless otherwise agreed by the parties in writing.
3.2 All prices are exclusive of GST (if any), which will be payable by you to us in addition on the rendering by us of a tax invoice.
4.1 All orders for Goods or Services must be submitted to us in writing, by email, or by such other means as we may specify from time to time. We are not obliged to acknowledge or process any order for Goods or Services not submitted by such means.
4.2 Your acceptance of a written quotation from us, or our acceptance of a written order form or purchase order from you, will create a legally binding order by you for the Goods or Services. You may not cancel any order without our consent, which consent (if any) may be given on such terms as we may determine at our discretion. We may, for any reason and without any liability on our part, cancel any order for Goods or Services before delivery of the Goods or performance of the Services.
5.1 We will invoice you for the Goods or Services in the manner and on the dates expressly agreed by the parties in writing. In the absence of any such express written agreement:
a) if you do not have a trade account with us, we will invoice you for the Goods prior to delivery and for the Services prior to performance, and you must pay all such invoices in full before such delivery or performance (as the case may be); and
b) if you do have a trade account with us, we will invoice you for on or before delivery and for the Services on or before performance, and you must pay all such invoices in full on or before the 7th day following the date the invoice was issued.
5.2 Despite clause 5.1, we reserve the right to require you to pay a 50 % deposit for any Goods or Services to be provided, and our invoice for any such deposit must be paid in full before we accept an order for those Goods or Services.
5.3 All sums due to us under these Conditions will be paid without deduction or set-off of any kind, to the credit of a bank account to be designated in writing by us, failing which:
a) we may charge interest on any outstanding amount on a monthly basis at only a fixed rate of 6% from the due date until the date of actual payment,
b) you will reimburse us for all costs and expenses that we incur in connection with any actions or proceedings for recovery of any amounts required to be paid by you, including all reasonable accounting costs, attorney costs (on a solicitor and own client basis), court costs and debt collection costs; and
c) we may elect to terminate any orders for Goods or Services that are in progress, or to suspend any such orders until the failure to pay has been rectified.
5.4 We may at any time and for any reason suspend or cancel any trade account you may have with us, or to modify the invoicing and payment terms applicable to such trade account.
6.1 Delivery of the Goods shall be by one of the following means, as determined by us at our sole discretion and notified to you:
a) by delivery to an address for delivery specified in the applicable quotation or otherwise agreed by the parties in writing); or
b) by making the Goods available for pickup by you or your nominated agent or carrier at a location notified by us.
You acknowledge and agree that we may deliver the goods in instalments. Delivery is deemed completed once possession of the Goods has passed to you or your nominated agent or carrier.
6.2 Unless otherwise agreed by the parties in writing, you will reimburse us for all freight, shipping, insurance, transportation and customs clearance costs and expenses incurred by us in delivering the Goods to you, and we will invoice you for these costs and expenses at the time we invoice you for the Goods.
6.3 We will perform the Services on the dates or within the timeframes, and at the locations, specified in the applicable quotation or as otherwise agreed by the parties in writing. If no such details are specified or agreed in writing, the Services will be performed within a reasonable time, and at such locations as we reasonably determine.
6.4 Any delivery, performance or lead times given by us are estimates only, and we will not be liable for failure to deliver Goods or perform Services within any estimate timeframe. Time for delivery or performance will not be of the essence.
6.5 In the event of any delay by you in taking delivery of the Goods, we will be entitled to charge you for our reasonable costs incurred in storing them.
6.6 You must inspect the Goods upon delivery to determine whether they have been delivered in good condition. You must give written notice to us of:
a) any defects in or damage to the Goods that would be reasonably visible from any such inspection; and
b) any Goods short supplied,
within seven days of delivery. Failure to do so will be regarded as an acceptance of the Goods. Additionally, the signing of a delivery docket or packing slip by you or your agents confirming that the Goods have been delivered in good condition and in the correct quantity, will be regarded as an acceptance of the Goods. Acceptance of the Goods will mean that your only rights and remedies under clause 11 in relation to those Goods will be for defects in or damage to the Goods not reasonably visible from an inspection of them.
7.1 We will not be liable for any failure to perform the contract or any part of it due to an event of Force Majeure. We may cancel the order if the cost to us of supplying any Goods or Services is increased materially as a result of such Force Majeure and the parties cannot agree on how the additional cost is to be borne. For the purposes of this clause 7, Force Majeure includes any inability to obtain supplies or labour, industrial disputes, delays, act of God, fire, flood, storm, adverse weather conditions, or other matters beyond our reasonable control.
risk and title
8.1 Risk of loss of or damage to the Goods will pass to you as follows:
a) if we make the Goods available for pickup by you or your nominated agent or carrier, then risk will pass once the Goods have been picked up. If we assist you to load any Goods onto any carrier, then that will be at your own risk;
b) if we deliver the Goods ourselves to an address nominated by you, then risk will pass upon delivery of the Goods to that address; and
c) if we use a third party carrier to deliver the Goods to an address nominated by you, then risk will pass upon pickup of the Goods by that carrier, and your only rights and remedies in respect of any loss of or damage to those Goods while in transit will be limited to the extent of any separate insurance coverage taken out with such carrier for such delivery, or to the extent such carrier otherwise accepts liability for such loss or damage.
8.2 The title of in the Goods will not pass to you until ALL goods and Services provided by us to you have been paid for in full. Until such title passes:
a) you will keep the Goods clearly identified as our property in a separate part of your premises, in good order and condition, and fully insured with a reputable insurer for their full replacement value;
b) you will not sell or dispose of the Goods, other than in the ordinary course of your business, and you will hold the proceeds of such sale or disposal in a separate account on trust for us;
c) you will return the Goods to us immediately if called upon by us to do so; and
d) we or our agents may, where we have any concerns about your creditworthiness or consider the Goods to be “at risk” (as defined in section 109(2) of the PPSA), enter your premises or any other place where the Goods are situated at any time in order to take possession of them, and you will indemnify us and our agents against any claim or demand that may be brought in relation to such entry and taking of possession.
8.3 You acknowledge that clause 8.2 is a Security Agreement that creates a Security Interest in the Goods. You agree that such Security Interest is taken in all present and after-acquired Goods supplied by us to you from time to time and in the Proceeds, as security for all amounts payable by you to us.
8.4 You agree to our registering a Financing Statement to Perfect our Security Interest under these Conditions, and you:
a) agree to promptly execute any documents and provide any information that we may require from time to time to enable us to Perfect such Security Interest; and
b) waive your right to receive a verified Financing Statement.
8.5 For the avoidance of doubt, the terms Security Agreement, Security Interest, Financing Statement, Perfect and Proceeds set out in this clause 8 will have the meanings set out in the PPSA.
intellectual property rights
9.1 Unless we agree otherwise with you in writing:
a) all copyright, design rights and other intellectual property rights (Intellectual Property Rights) in or to the Goods, or arising from the performance of the Services, will be exclusively owned by us “SWSL”or our third party licensors. Neither you nor any of your affiliates, agents or contractors will assert or claim ownership of any such Intellectual Property Rights;
b) you and subsequent purchasers of the Goods are granted a royalty-free, non-exclusive licence under such Intellectual Property Rights solely to the extent necessary to use the Goods in the manner recommended by us; and
c) we will be free to manufacture, copy, use, sell or otherwise commercially exploit any designs, goods or products the subject of such Intellectual Property Rights as we please at our sole discretion.
9.2 Any use or copying of the Goods except as expressly permitted under clause 9.1 is strictly prohibited and will be regarded as a material breach by you of these Conditions.
9.3 You will notify us in writing in the event that you or your affiliates or agents make or devise any improvements, additions, modifications or developments in connection with the Goods (Improvements). All Intellectual Property Rights in or to those Improvements will be exclusively owned by us or our nominated third-party licensors. You will ensure that all documents necessary to confirm the ownership by us or our nominated third-party licensors of those Improvements and Intellectual Property Rights are appropriately executed, if requested by us.
9.4 Despite any other provision of this clause 9 to the contrary, if we supply any Goods to a specific completed design provided by you, you or you third party licensors will retain ownership of the Intellectual Property Rights in that design, and you grant to us a non-exclusive, royalty-free, sub-licensable licence to the extent necessary to enable the manufacture and supply to you of the applicable Goods, or the performance of the applicable Services (as the case may be).
9.5 You must ensure you have the full right and title in connection with any designs, materials and specifications provided by you to us. You will indemnify us and our affiliates, manufacturers and agents from and against any and all liabilities, losses, damages, costs and expenses of any nature whatsoever awarded against, incurred or suffered by them arising out of or resulting from an Intellectual Property Rights infringement claim by any third party to the extent that such claim relates to any designs, materials or specifications supplied by you to us.
10.1 In the course of our business dealings with you, we may collect, use, disclose, and hold personal information about identifiable individuals, such as your officers, owners, personnel, contractors, references or customers. This information will be used, disclosed and held by us in accordance with the Privacy Act.
10.2 If you provide us with any personal information about any third party, then you warrant to us that you have obtained all necessary consents and authorisations from that third party to enable us to collect, use, disclose and hold such personal information in accordance with the Privacy Act.
11.1 We warrant that there are no liens, encumbrances or other interests in the Goods that would prevent title to the Goods passing to you upon payment pursuant to clause 8.2.
11.2 The Goods may be supplied with a standard written warranty. The scope of such warranty, the warranty period, and any exceptions to that warranty, will be as specified in the warranty information provided with those Goods.
11.3 If the Goods are not supplied with a standard written warranty under clause 11.2, then we warrant that for a Period of two years following delivery of the Goods to you:
a) those Goods will be free from defects in materials and construction; and
b) if those Goods have been supplied to an agreed written specification, those Goods will comply with that written specification.
11.4 Despite clause 11.3, the warranty in connection with any fabric parts or constituents of any Goods, is limited as follows:
a) we give no warranty in connection with any defect arising due to the quality of third-party fabrics selected by you for inclusion in the Goods. In the event of any such quality issues, you may have rights or remedies against the fabric manufacturer under the warranty (if any) given by that manufacturer; and
b) in all other cases the warranty period in connection with any fabric parts or constituents of any Goods, is limited to 12 months following delivery to you.
11.5 No warranty is given for the Goods where any failure to comply or defect results from any of the following:
a) use, installation, maintenance, modification and or any alteration of the Goods other than as recommended or authorised in writing by us;
b) normal wear and tear during normal use of the Goods;
c) physical damage caused to the Goods following delivery;
d) defects in any fabrics arising as a result of fading, soiling, wrinkling, creasing, or cleaning or maintenance other than as recommended by us or the fabric manufacturer; or
e) misuse or negligence on the part of any user or retailer following delivery.
11.6 The warranties in clause 11.3 are subject to the exception in clause 6.6. Additionally, we will not be obliged to honour any warranty for so long as any amount owing to us for Goods or Services is overdue.
11.7 Any modification of any Goods or attempt by any person to repair any Goods, without our prior written authorisation, will invalidate all warranties in clause 11.3 for those Goods.
11.8 Your sole remedy against us for any Goods that do not comply with any of the warranties in clause 11.3 will be (at our discretion) for us to repair or replace such Goods or their defective components, or provide you with a credit for such Goods, provided that:
a) you must notify us in writing of the non- compliance within the applicable warranty period, and no later than seven days following the date you first became aware of the non- compliance. You must also provide us with such information as we may reasonably request in relation to your warranty claim; and
b) you must give us the opportunity to investigate the alleged non-compliance, and you will if we request you to, return to us the relevant Goods (or defective components of them) for the purposes of such inspection.
11.9 We will not be obliged to accept the return of any Goods, except in the circumstances set out in clause 11.8. If we do agree in writing to accept the return of any Goods that are not defective or non-compliant, they must be returned to us in an original, unused, undamaged, resalable, unsoiled condition.
11.10 Some Goods or components of Goods manufactured by third parties may be supplied with a separate manufacturer’s warranty. Despite any other provision of this clause 10 to the contrary, but subject to clause 13, our liability for defects in such Goods or components will be limited to the extent of that manufacturer’s warranty.
11.11 You acknowledge that except as expressly provided in these Conditions, and subject to clause 13, we give no warranties in relation to the Goods, either express or implied, including but not limited to any implied warranties relating to quality, fitness for any particular purpose or ability to achieve a particular result. All statements, technical information and recommendations about the Goods are believed to be reliable, but do not constitute a guarantee or warranty.
11.12 If the Goods are acquired by you for the purposes of a business, then you agree that the guarantees provided under the Consumer Guarantees Act 1993 (CGA) will not apply. We do not otherwise seek to exclude any liability under the CGA.
12.1 In no event will we be liable (whether in contract, tort, negligence or in any other way) to you for:
a) loss of revenue or profit, loss of anticipated savings, loss of goodwill or opportunity, loss of production, loss or corruption of data or wasted management or staff time; or
b) loss, damage, cost or expense of any kind whatsoever that is indirect, consequential, or of a special nature, arising directly or indirectly from any Goods supplied by us to you, even if we had been advised of the possibility of such damages, and even if such loss, damage, cost or expense was reasonably foreseeable by us.
12.2 In no event will our total liability under any claim of whatever nature arising directly or indirectly from the Goods supplied by us to you exceed the price paid by you for the specific Goods to which the relevant claim relates.
13.1 None of the exclusions or limitations set out in these Conditions will have the effect of limiting or excluding any form of liability where such liability cannot be so limited or excluded under applicable law.
14.1 These Conditions embody the entire agreement of the parties in relation to the subject matter of these Conditions and supersede all prior understandings, communications and representations between the parties, whether oral or written.
14.2 You may not assign, transfer or sub-contract any of your rights or obligations under these Conditions, without first obtaining our written consent.
14.3 No amendment to these Conditions will be effective unless in writing and signed by an authorised representative of us.
14.4 The United Nations Convention on Agreements for the International Sale of Goods will not apply to the supply of any Goods and or Services under these Conditions.
14.5 These Conditions will be governed by the laws of New Zealand, and the parties submit to the non- exclusive jurisdiction of the Courts of New Zealand.
The Agreement constitutes the entire agreement between SMARTSPACE WORKPLACE SOLUTIONS LIMITED “SWSL” and “The Customer” and will supersede previous negotiations, comments and writings hereinafter.