Sales Terms For Commercial Customers

1. If you are making a purchase of goods or services from our Websites and Platforms and ourStores and Services for business purposes as defined in sections 2 and 43 of the CGA, you agreethat the consumer guarantees provided for in the CGA will not apply to the supply of those goodsor services. You are our Commercial Customer and our Sales Terms for Commercial Customersapply, unless you have signed a credit agreement with us.

2. If you are our Commercial Customer and you have a credit agreement with us, our Sales Termsfor Commercial Customers do not apply. Please kindly refer to the terms and conditions recordedin your credit agreement.

3. If you are making a purchase from our Websites and Platforms and our Stores and Services ofgoods or services of a kind ordinarily purchased for personal, domestic or household use orconsumption and if you do not purchase the goods or services, or hold yourself out as acquiringthe goods or services, for the purpose of:(a) resupplying them in trade; or(b) consuming them in the course of a process of production or manufacture; or(c) in the case of goods, repairing or treating in trade other goods or fixtures on land,then you are our Consumer Customer and our Sales Terms for Commercial Customers do notapply.

4. By using, visiting, participating in or making a purchase from any of our Websites and Platformsand our Stores and Services, you accept our Sales Terms for Commercial Customers.

5. Definitions and Interpretation
5.1. Definitions
(a) “Control” includes where one or more persons, directly or indirectly, whether by thelegal or beneficial ownership of shares, securities or other equity, the possession ofvoting power, by contract, trust, or otherwise:
  (1) has, or may have, the power to appoint or remove the majority of themembers of the governing body of the person concerned;
  (2) controls or has the power, or may have the power, to control the affairs orpolicies of the person concerned; or
  (3) is in a position to derive more than fifty percent (50%) of the benefit of theexistence or activities of the person concerned.
(b) “Goods” means all Goods supplied by us to you at your request from time to time.
(c) “Goods or Services” means all Goods and/or Services supplied by us to you atyour request from time to time.
(d) “Price” means the Price payable (plus any Goods and Services Tax (“GST”) whereapplicable) for the Goods or Services as agreed between we and you in accordancewith clause 9 below.
(e) “Services” means all Services supplied by us to you at your request from time totime.(f) “Supplier’s Related Person” means a person, company, other body corporate, ourGroup Entity or entity which:
  (1) Controls us;
  (2) is Controlled by us;
  (3) is Controlled by a person, company, other body corporate or entity whichControls us.
5.2. Interpretation In our Sales Terms for Commercial Customers unless the context otherwise requires:
(a) headings are to be ignored in construing our Sales Terms for CommercialCustomers;
(b) the singular includes the plural and vice versa;
(c) a reference to a statute or other law includes regulations and other instrumentsunder it and consolidations, amendments, re-enactments or replacements of any ofthem;
(d) reference to any document includes reference to that document (and, whereapplicable, any of its provisions) as amended, novated, supplemented, or replacedfrom time to time;
(e) reference to a party, person or entity includes:
  (1) an individual, partnership, firm, company, body corporate, corporation,association, trust, estate, state, government or any agency thereof, municipalor local authority and any other entity, whether incorporated or not (in eachcase whether or not having a separate legal personality); and
  (2) an employee, agent, successor, permitted assign, executor, administratorand other representative of such party, person or entity;
(f) “written” and “in writing” include any means of reproducing words, figures orsymbols in a tangible and visible form;
(g) Reference to ‘Goods’ or ‘Services’, where the context so permits, shall beinterchangeable for the other;
(h) references to money are to New Zealand dollars; and
(i) reference to a section, clause, sub-clause, schedule or a party is a reference to thatsection, clause, sub-clause, schedule or party in our Sales Terms for CommercialCustomers unless stated otherwise.

6. Acceptance
6.1. Any Goods or Services supplied to you by us will be supplied on the Terms.
6.2. You are taken to have exclusively accepted and is immediately bound, jointly andseverally, by our Terms (including but without limitation our Sales Terms for CommercialCustomers), from the earliest date of occurrence of:
(a) you placing an Order for the Goods or Services; or
(b) you confirming an Order recorded in any invoice provided by us to you; or
(c) you making a part or full payment of any invoice provided by us to you; or
(d) you accepting delivery of the Goods (“Delivery”) or provision of the Services.
6.3. You hereby guarantee, warrant and represent to us that you have carefully read,understood and agree to each and every provision of our Terms prior to placing an Orderfor Goods or Services from us.
6.4. You acknowledge and confirm that, prior to placing an Order for Goods or Services fromus, you have had the opportunity to carry out a due diligence investigation and to seekthe independent legal advice.
6.5. In the event that any goods or services required for our Delivery or completion of theServices (“Completion”) cease to be available from our third party suppliers, then wereserve the right to provide alternative Goods or Services (“Right to Substitute”).

7. Errors and Omissions
7.1. You acknowledge and accept that we shall, without prejudice, accept no liability inrespect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by us in the formation and/oradministration of our Terms; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by usin respect of the Goods or Services.
7.2. In the event such an error and/or omission occurs in accordance with clause 7.1, and isnot attributable to our negligence and/or wilful misconduct, you shall not be entitled totreat our Terms as repudiated nor render it invalid.

8. Change in Control
8.1. You shall give us not less than ten (10) Working Days prior written notice of anyproposed change of ownership of you and/or any other change in your details (includingbut not limited to, changes in your name, address and contact phone or email address,change of controlling director or shareholder or business practice). You shall be liable forany loss incurred by us as a result of your failure to comply with this clause.

9. Price and Payment
9.1. The Price shall be as indicated on any invoice (or amended invoice in accordance withclauses 9.2 and 9.3) provided by us to you.
9.2. You acknowledge that in some circumstances it is difficult for us to ascertain the Price.We reserve the right to change the Price (Variations):
(a) if a variation is requested by you or required at our sole discretion due to changes inthe quantity of the Goods, nature and location of the delivery address, facilitiesavailable for unloading, weather conditions or delays beyond our control, deliverytimes or dates, or otherwise; or
(b) if a variation from the plan of scheduled Services or specifications is requested byyou or required at our sole discretion due to, including but not limited to, additionalworks required due to hidden or unidentifiable difficulties beyond our reasonablecontrol, safety considerations, or otherwise; or
(c) if a variation is required due to our exercise of the Right to Substitute; or
(d) in the event of increases to us in the cost of Goods or Services, labour or materials(including, but not limited to, overseas transactions that may increase as aconsequence of variations in foreign currency rates of exchange and/or freight andinsurance charges and labour) which are beyond our control.
9.3. We may, at our sole discretion, provide an amended invoice to you, before or afterDelivery or Completion, in which the Variations will be detailed in writing (“AmendedInvoice”). You shall notify us by email if you wish to dispute about, disagree to or do notaccept any Variations recorded in the Amended Invoice within five (5) Working Days(time being of the essence) from the date of receipt of the Amended Invoice. If you fail tonotify us in accordance with this clause within five (5) Working Days from the date of thereceipt of the Amended Invoice, the Variations and Amended Invoice shall be deemed tohave been approved and accepted by you.
9.4. You shall pay in full the Price indicated on an invoice provided by us to you within five (5)working days from the date we send an invoice to you, unless we, at our sole discretion,agree to vary this requirement in writing. In the event that you fail to make the payment infull within the time specified in this clause, we may, at our sole discretion, withdraw theinvoice and cancel the Order(s) placed by you. We will not be liable to you for any loss ordamage you suffer because we have exercised our rights under this clause.
9.5. In the event that we have agreed to vary the payment requirement set out in clause 9.4above, time for payment for the Goods or Services being of the essence, the Price will bepayable by you on the date/s determined by us, which may be:
(a) on or before Delivery or Completion; or
(b) for certain approved Customers, payment shall be made by instalments inaccordance with our payment schedule; or
(c) for certain approved Customers, due twenty (20) Working Days from the date aninvoice is emailed to your email address (for the avoidance of doubt, we issuing anAmended Invoice will not defer the time for payment and the payment will be due ontwenty (20) Working Days from the date of the original invoice); or
(d) the date specified on any invoice or other form as being the date for payment; or(e) failing any notice to the contrary, the date which is ten (10) Working Days followingthe date of any invoice given to you by us.
9.6. Payment may be made by cash, electronic/on-line banking, or by any other method asagreed to between you and us.
9.7. No allowance has been made in the Price for the deduction of retentions. In the eventthat retentions are made, we reserve the right to treat retentions as placing your accountinto default.=
9.8. We may in our discretion allocate any payment received from you towards any invoicethat we determine and may do so at the time of receipt or at any time afterwards. On anydefault by you, we may reallocate any payments previously received and allocated at oursole discretion.
9.9. You shall not be entitled to set off against, or deduct from the Price, any sums owed orclaimed to be owed to you by us nor to withhold payment of any invoice because part ofthat invoice is in dispute.
9.10. Unless otherwise stated the Price does not include GST. In addition to the Price, youmust pay to us an amount equal to any GST we must pay for any supply by us under ourTerms or any other agreement for the sale of the Goods or Services. You must pay GST,without deduction or set off of any other amounts, at the same time and on the samebasis as you pay the Price. In addition, you must pay any other taxes and duties thatmay be applicable in addition to the Price except where they are expressly included inthe Price.

10. Provision of Goods or Services
10.1. The Services’ commencement date will be put back and the completion date extended bywhatever time is reasonable in the event that we claim an extension of time (by givingyou written notice) where Completion is delayed by an event beyond our control,including but not limited to any failure by you to:
(a) make a selection; or
(b) have the site ready for the Works; or
(c) notify us that the site is ready.
10.2. Delivery is taken to occur at the time that we (or our nominated carrier) deliver the Goodsto your nominated address even if you are not present at the address.
10.3. At our sole discretion, the cost of Delivery is either included in the Price or is in additionto the Price.
10.4. We may deliver the Goods in separate instalments. Each separate instalment shall beinvoiced and paid in accordance with the provisions in our Sales Terms for CommercialCustomers.
10.5. You shall take Delivery tendered notwithstanding that the quantity so delivered shall beeither greater or lesser than the quantity purchased provided that:(a) such discrepancy in quantity shall not exceed ten percent (10%); and(b) the Price shall be adjusted pro rata to the discrepancy.
10.6. Any time specified by us for Delivery or Completion is an estimate only and we will not beliable for any loss or damage incurred by you as a result of Delivery being late orCompletion being extended. In the event that we are unable to supply the Goods orServices as agreed solely due to any action or inaction of you, then we shall be entitledto charge a reasonable fee for redelivery, rescheduling and/or storage.

11. Risk
11.1. Risk of damage to or loss of the Goods passes to you on Delivery and you must insurethe Goods on or before Delivery.
11.2. If any of the Goods are damaged or destroyed following Delivery but prior to ownershippassing to you, we are entitled to receive all insurance proceeds payable for the Goods.The production of our Sales Terms for Commercial Customers by us is sufficientevidence of our rights to receive the insurance proceeds without the need for any persondealing with us to make further enquiries.
11.3. If you request us to leave Goods outside our premises for collection or to deliver theGoods to an unattended location then such Goods shall be left at your sole risk.
11.4. You acknowledge that Goods supplied may exhibit variations in shade, colour, texture,surface and finish, and may fade or change colour over time. Natural products havenatural colour and shade tones, markings, and veining that may vary from coloursamples provided. We give no guarantee (expressed or implied) that colour samples willmatch the Goods supplied. We will make every effort to match batches of productsupplied in order to minimise such variations but shall not be liable in any waywhatsoever where such variations occur.
11.5. If the giving of an estimate or quotation for the supply of Goods involves us estimatingmeasurements and quantities, it shall be the responsibility of you to verify the accuracyof our estimated measurements and quantities, before you place an Order based onsuch estimate or accepts such quotation.
11.6. Should you require any changes to our estimated measurements and quantities, youshall request such changes in writing, in the case of an estimate before placing an Orderbased on that estimate and in the case of a quotation before acceptance of thatquotation.

12. Access
12.1. You shall ensure that we have clear and free access to the site at all times to enablethem to deliver the Goods or provide Services. We shall not be liable for any loss ordamage to the site (including, without limitation, damage to pathways, driveways andconcreted or paved or grassed areas) unless due to our negligence.
12.2. It is the responsibility of you to ensure that access is suitable to accept the weight ofladen trucks. You agree to indemnify us against all costs incurred by us in recoveringsuch vehicles in the event they become bogged or otherwise immovable.

13. Compliance With Laws
13.1. You and we shall comply with the provisions of all statutes, regulations and bylaws ofgovernment, local and other public authorities that may be applicable to the Goods orServices.
13.2. You shall obtain (at the expense of you) all licenses and approvals that may be requiredfor the Goods or Services.
13.3. It is your responsibility to ensure that all applicable health and safety regulations areobserved and other appropriate steps taken in relation to the storage, handling and useof the Goods and where information is supplied to you on potential hazards relating tothe Goods to bring such information to the attention of your employees, agents, subcontractor, visitors and customers. Without prejudice to the foregoing it is also yourresponsibility to provide safe facilities for the reception of the Goods into storageincluding the unloading of Goods from carriers. You hereby indemnify and shall keepindemnified us against all action, claims, demands, summons, suits, proceedings,judgments, orders or decrees arising out of or in connection with any act or omission ofyou in respect of your obligations pursuant to this clause.

14. Insurance
14.1. It is your responsibility to ensure that you have public liability insurance of at least onemillion dollars ($1 million).

15. Title
15.1. We and you agree that ownership of the Goods shall not pass until:
(a) you have paid us all amounts owing to us; and
(b) you have met all of your other obligations to us.
15.2. Receipt by us of any form of payment other than cash shall not be deemed to bepayment until that form of payment has been honoured, cleared or recognised.
15.3. It is further agreed that until ownership of the Goods passes to you in accordance withclause 15.1:
(a) you are only a bailee of the Goods and must return the Goods to us on request;
(b) you hold the benefit of your insurance of the Goods on trust for us and must pay tous the proceeds of any insurance in the event of the Goods being lost, damaged ordestroyed;
(c) you must not sell, dispose, or otherwise part with possession of the Goods otherthan in the ordinary course of business and for market value. If you sell, dispose orpart with possession of the Goods then you must hold the proceeds of any such acton trust for us and must pay or deliver the proceeds to us on demand;
(d) you should not convert or process the Goods or intermix them with other goods butif you do so then you hold the resulting product on trust for our benefit and mustsell, dispose of or return the resulting product to us as we so direct;
(e) you irrevocably authorise us to enter any premises where we believe the Goods arekept and recover possession of the Goods;
(f) we may recover possession of any Goods in transit whether or not Delivery hasoccurred;
(g) you shall not charge or grant an encumbrance over the Goods nor grant norotherwise give away any interest in the Goods while they remain our property; and
(h) we may commence proceedings to recover the Price of the Goods soldnotwithstanding that ownership of the Goods has not passed to you.

16. Defects
16.1. You shall inspect the Goods on Delivery or Services on Completion and shall within five(5) Working Days of Delivery or Completion (time being of the essence) notify us of anyalleged defect, shortage in quantity, damage or failure to comply with the description orquote, by emailing us with a photo of the defective Goods or Services and briefdescription of the defect. You shall afford us an opportunity to inspect the Goods or Services within a reasonable time following your email. If you shall fail to comply withthese provisions the Goods or Services shall be presumed to be free from any defect ordamage. For defective Goods, which we have agreed in writing that you are entitled toreject, our liability is limited to either (at our discretion) replacing the Goods or repairingthe Goods. For defective Services, which we have agreed in writing that you are entitledto reject, our liability is limited to carrying out repair works.
16.2. Goods will not be accepted for return other than in accordance with 16.1 above.

17. Warranty
17.1. To the maximum extent permitted by law, no warranty is given by us as to the quality orsuitability of the Goods or Services for any purpose and any implied warranty isexpressly excluded. We shall not be responsible for any loss or damage to the Goods, orcaused by the Goods or Services, or any part thereof however arising.

18. Consumer Guarantees Act 1993
18.1. You warrant and confirm to us that you are acquiring Goods or Services for the purposesof a trade or business. Accordingly, you acknowledge and agree that the provisions of theCGA do not apply to the supply of Goods or Services by us to you.

19. Default and Consequences of Default
19.1. Interest on overdue invoices shall accrue daily from the date when payment becomesdue, until the date of payment, at a rate of our trading bank’s authorised overdraft interestrate applicable from time to time (and at our sole discretion such interest shall compoundmonthly at such a rate) after as well as before any judgment.
19.2. If you owe us any money you shall indemnify us from and against all costs anddisbursements incurred by us in recovering the debt (including but not limited to internaladministration fees, legal costs on a solicitor and own client basis, our collection agencycosts, and bank dishonour fees and other bank fees).
19.3. Further to any other rights or remedies we may have under the Terms, if you have madepayment to us, and the transaction is subsequently reversed, you shall be liable for theamount of the reversed transaction, in addition to any further costs incurred by us underthis clause 19 where it can be proven that such reversal is found to be illegal, fraudulentor in contravention to your obligations under the Terms.
19.4. Without prejudice to our other remedies at law we shall be entitled to cancel all or anypart of any of your Order which remains unfulfilled and all amounts owing to us shall,whether or not due for payment, become immediately payable if:
(a) any money payable to us becomes overdue, or in our opinion you will be unable tomake a payment when it falls due;
(b) you have exceeded any applicable credit limit provided by us;
(c) you become insolvent, convene a meeting with your creditors or propose or enterinto an arrangement with creditors, or make an assignment for the benefit of yourcreditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person isappointed in respect of you or any of your asset.

20. Cancellation
20.1. Without prejudice to any other remedies we may have, if at any time you are in breach ofany obligation (including those relating to payment) under the Terms we may, at our solediscretion, suspend or terminate the supply of Goods or Services to you. We will not beliable to you for any loss or damage you suffer because we have exercised our rightsunder this clause.
20.2. We may cancel Delivery of the Goods or provision of Services at any time before theGoods are delivered or prior to commencement of provision of the Services by givingwritten notice to you. On giving such notice we shall repay to you any money paid by youfor the Goods or Services. We shall not be liable for any loss or damage whatsoeverarising from such cancellation and neither party shall have any right or claim against theother arising from the cancellation, save as to your obligations and/or liabilities under theTerms to pay all monies which are owing to us.
20.3. Cancellation of Orders for Goods or Services made to your specifications, or for nonstocklist items, will definitely not be accepted once production has commenced, or anOrder has been placed or provision of the Service has commenced.

21. Dispute Resolution
21.1. If a dispute arises, then a party shall send to the other party a notice of dispute in writingadequately identifying and providing details of the dispute. Within five (5) Working Daysafter service of a notice of dispute, you and we shall confer at least once, to attempt toresolve the dispute. At any such conference you and we shall be represented by aperson having authority to agree to a resolution of the dispute.
21.2. You agree that you shall not resort to litigation as a means of resolving the dispute unlessand until you have complied with all the provisions of clause 21.1.

22. Privacy Policy
22.1. All emails, documents, images or other recorded information held or used by us now orin the future is “Personal Information” and therefore considered confidential. Weacknowledge our obligation in relation to the handling, use, disclosure and processing ofPersonal Information pursuant to the Privacy Act 2020 (“the Act”) including Part II of theOECD Guidelines as set out in the Act. We acknowledge that in the event it becomesaware of any data breaches and/or disclosure of your Personal Information, held by usthat may result in serious harm to you, we will notify you in accordance with the Act. Anyrelease of such Personal Information must be in accordance with the Act and must beapproved by you by written consent, unless subject to an operation of law.
22.2. You hereby irrevocably agree and consents to provide a copy of your each and everydirector’s, partner’s or owner’s driver’s license to us and consents us sharing copy of thedriver’s license and Personal Information to the Supplier’s Related Persons.
22.3. You authorise us, our agent and the Supplier’s Related Persons to:
(a) access, collect, retain and use any information about you;
  (1) including, name, address, date of birth, occupation, driver’s license details,electronic contact (email, Facebook or Twitter details), and other contactinformation (where applicable), previous credit applications, credit history orany overdue fines balance information held by the Ministry of Justice for thepurpose of assessing your creditworthiness, in deciding whether to establisha trading account with you and/or provide credit to you; or
  (2) for the purpose of marketing products and services to you; and
(b) make any inquiries we consider appropriate relating to you, and for the operation ofa trading account;
(c) disclose information about you, whether collected by us from you directly orobtained by us from any other source, to any financial institution or other creditprovider, any credit rating agency, any credit reporting agency, or any debtcollection agency, including but without limitation Centrix and Baycorp NewZealand, for the purposes of providing or obtaining a credit reference, debtcollection or notifying a default by you; and
(d) seek information about you from any financial institution or other credit provider, anycredit rating agency, any credit reporting agency, or any debt collection agency,including but without limitation Centrix and Baycorp New Zealand, for the purposesof providing or obtaining a credit reference, debt collection or notifying a default byyou; and
(e) share information about you with the Supplier’s Related Persons.
22.4. Where you are an individual the authorities under clause 22.3 are authorities or consentsfor the purposes of the Privacy Act 2020.
22.5. You shall have the right to request by email from us, a copy of the Personal Informationabout you retained by us and the right to request that we correct any incorrect PersonalInformation.
22.6. We will destroy Personal Information upon your request by email or if it is no longerrequired unless it is required in order to fulfil the obligations under the Terms or isrequired to be maintained and/or stored in accordance with the law.
22.7. You can make a privacy complaint by contacting us by email. We will respond to thatcomplaint within five (5) Working Days of receipt and will take all reasonable steps tomake a decision as to the complaint within twenty (20) Working Days of receipt of thecomplaint.

23. Service of Notices
23.1. Any written notice given under our Terms shall be deemed to have been given by us andreceived by you if sent by email to your email address you have provided to us.

24. Sales Terms for Commercial Customers to Prevail
24.1. If you are our Commercial Customer and if there is any conflict between provisions in ourSales Terms for Commercial Customers and provisions in any other Terms, theprovisions in our Sales Terms for Commercial Customers shall always prevail.

25. General
25.1. The failure by us to enforce any provision of the Terms shall not be treated as a waiver ofthat provision, nor shall it affect our right to subsequently enforce that provision.
25.2. If any provision of the Terms shall be invalid, void, illegal or unenforceable the validity,existence, legality and enforceability of the remaining provisions shall not be affected,prejudiced or impaired.
25.3. The Terms shall be governed by the laws of New Zealand and are subject to thejurisdiction of the courts of New Zealand.
25.4. Subject to the CGA, we shall be under no liability whatsoever to you for any indirectand/or consequential loss and/or expense (including loss of profit) suffered by you arisingout of a breach by us of the Terms (alternatively our liability shall be limited to damageswhich under no circumstances shall exceed the Price of the Goods or Services).
25.5. We may licence and/or assign all or any part of our rights and/or obligations under theTerms without your consent.
25.6. You cannot licence or assign without our written approval.
25.7. We may elect to subcontract out any part of the Services but shall not be relieved fromany liability or obligation under the Terms by so doing. Furthermore, you agree andunderstand that you have no authority to give any instruction to any of our subcontractors without our authority.
25.8. Neither party shall be liable for any default due to any act of God, war, terrorism, strike,lock-out, industrial action, fire, flood, storm, national or global pandemics and/or theimplementation of regulation, directions, rules or measures being enforced byGovernments or embargo, including but not limited to, any Government imposed borderlockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other eventbeyond the reasonable control of either party. This clause does not apply to a failure byyou to make a payment to us.
25.9. You warrant that you have the power to accept the Terms and place an Order and youhave obtained all necessary authorisations to allow you to do so, you are not insolventand that your acceptance of the Terms and placement of an Order create binding andvalid legal obligations on you.
25.10. Each party shall make all applications, execute all documents and do all acts and thingsreasonably required to implement and to carry out its obligations under the Terms.

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