New Zealand Comfort Group LTD - Terms and Conditions of Sale
These terms and conditions of supply (“Terms”) apply to the supply of all beds and bedding products, foam, flooring underlay, furniture, fibre and other goods (“Goods”) that New Zealand Comfort Group Limited (“NZCG”) may agree to supply to Customer from time to time.
2) AGREED TERMS
a) All price lists, quotations, or offers by NZCG and all orders by Customer (“Orders”) for Goods are subject to these Terms. No variation, additional or other terms are binding on NZCG, even if included in or referred to in an Order, unless set out in writing and signed by both parties.
b) NZCG may change these Terms from time to time without notice provided that such changes will not apply to quotations given and Orders accepted before the date of such change. If Customer continues to place Orders after such change those Orders will be on the changed Terms (unless agreed otherwise).
3) ORDERS and PRICE
a) Any price list, quotation or offer by NZCG is an invitation to treat only. NZCG can decline to accept any Order. NZCG may specify a minimum order value/volume and may apply a surcharge for Orders under the minimum.
b) Each accepted Order is a separate contract on these Terms.
c) Customer cannot cancel special, custom or urgent Orders without NZCG consent. Customer can cancel all standard Orders within 1 Working Day of placing the Order without needing NZCG consent. Changes to an Order are only binding on NZCG if accepted by NZCG in writing.
d) NZCG acting promptly may cancel an Order if accepted in error or any license held by NZCG applicable to the Goods is limited or ceases for any reason.
e) The price is set out in NZCG’s current price list, in a written quotation, or as agreed in writing. If Customer’s Order refers to an incorrect price NZCG may at any time correct the Order price and recover underpayment or refund overpayment.
f) NZCG may revise its prices at any time. A price change will not apply to accepted Orders or current quotation (unless stated in the quotation).
g) A quotation expires 21 Working Days after the date of the quotation or as stated in the quotation. A quotation may be withdrawn by NZCG at any time.
h) The price is exclusive of freight costs and Goods and Services Tax (GST) which will be added to the invoice.
i) NZCG may change the specifications, ranges and brands of Goods at any time.
4) DELIVERY and RISK
a) Delivery is when the Goods arrive at the site/delivery location stated in the Order confirmation, ready for unloading. If delivery is at NZCG’s site, delivery is when ready for loading on Customer’s transport. Customer must provide personnel, equipment and facilities for safe and prompt receipt of the delivered Goods.
b) Delivery date is an estimate only and NZCG reserves the right to dispatch orders in whole or by instalments prior to the delivery date or within a reasonable time thereafter.
c) All Goods are at the risk of Customer from delivery to Customer or Customer’s agent. NZCG is not obliged to accept any claims for damage to Goods, or for loss or short delivery, unless the carrier’s consignment note or waybill is endorsed at time of delivery. If damage or loss is not reasonably identifiable on delivery then the claim must be made to NZCG in writing with full particulars within seven (7) days of delivery.
a) Customer must pay for the Goods in full on Ordering unless otherwise agreed. NZCG is under no obligation to manufacture or deliver the Goods until payment is received in full.
b) Where NZCG has agreed to grant Customer credit payment is due on the 20th of the month following the date of invoice (or other agreed date).
c) All payments to NZCG must be in full in cleared funds on the due date, without deduction or set off, except where Customer notifies a bona fide dispute of a specific invoice before the due date and pays any undisputed portion by the due date. Once a dispute is resolved, Customer must pay the resolved amount within 14 days.
d) If Customer is required by law to make a deduction or withholding on account of tax from a payment to NZCG the payment must be increased so that NZCG receives a net amount equal to the amount it would have received if no deduction or withholding applied.
e) Payment must be by bank direct credit to NZCG’s bank account as notified in writing by NZCG from time to time. Customer must verify directly with NZCG any purported notice of change of bank account number.
f) NZCG may agree to accept payment by Visa or Mastercard card (or any other agreed card or form of payment) and may charge a reasonable service fee.
g) If Customer’s payment is declined or reversed Customer must still pay NZCG in cleared funds by the due date and pay on demand all fees and charges incurred by NZCG arising from the decline or reversal. Discounts or benefits based on payment by the due date cease to apply.
h) Where NZCG has granted Customer credit, NZCG may revoke or vary credit at any time including by reevaluating payment terms, requiring full or partial payment or assurance of Customer’s performance (including guarantees), and/or may cancel any Order.
i) If NZCG offers a discount for early settlement on an invoice such offer applies only to the amount due on that specific invoice, and is conditional on NZCG receiving payment in full in cleared funds by the due date and Customer not overdue on other invoices.
j) Any amounts owing by Customer to NZCG may be setoff by NZCG against any amounts owing by NZCG to Customer.
6) LATE PAYMENT
If payment is not received by NZCG by the due date:
(i) interest is payable on the outstanding amount at the rate of 1.5% monthly (or lesser amount if required by law), accruing daily from the due date until payment in cleared funds, both before and after judgment; (ii) Customer must pay NZCG’s collection costs, including legal fees on a solicitor/client basis and mercantile agent fees, incurred recovering or attempting to recover the overdue amounts; (iii) NZCG may without notice review amend or cancel any rebates, discounts or incentives, suspend or cancel any further orders or deliveries, and/or terminate further supply.
Without limiting clause 9, NZCG will only accept return of Goods with prior authorisation. A restocking fee may be charged. Goods that NZCG accepts for return will only be credited if returned at Customer’s cost and risk (by NZCG’s nominated carrier if any) in original packaging, new condition and accompanied by documentation showing:
Customer name, address and account number;
NZCG invoice number;
Reason for return;
NZCG authorization number (RMA number).
a) If Customer:
i) defaults in payment on the due date;
ii) is in breach of clause 10 (Security and PPSR) or the Goods are “at risk” as defined in the PPSA;
iii) a liquidator, receiver, controller, trustee or other insolvency administrator is appointed, or any similar situation occurs in respect of Customer or any of its assets, then (in addition to, without limiting NZCG’s other rights and remedies) all amounts owing to NZCG, whether then due or not, are immediately due and payable without notice or demand. NZCG may cancel all or part of any Order or contract (whether or not part performed), decline further supply, and/or repossess and sell the Goods in Customer’s possession or under its control and for that purpose enter into any premises where the Goods may reasonably be expected to be, and recover the cost of doing so from Customer.
b) Without limiting clause 8(a), if a party breaches these Terms and the breach is not remediable, or if remediable is not remedied within 10 Working Days of written notice of breach from the other party, then the other party may immediately by written notice terminate this agreement.
c) Termination will not affect rights or obligations of the parties accrued prior to or that arise on termination or that survive termination.
9) WARRANTIES AND LIABILITY
a) NZCG warrants that Goods will substantially conform to the specification applicable at the time of acceptance of the Order. NZCG excludes all implied warranties or guarantees (except to the extent precluded by law).
b) NZCG will not be liable for any claim in contract, tort (including negligence) or equity, under statute or otherwise unless notice of the claim is given in writing to NZCG within 3 months of Customer first becoming aware of the claim.
c) To the extent permitted by law, where NZCG is liable to Customer under or in connection with any Order (whether in contract, tort including negligence or otherwise), NZCG's liability shall be limited at NZCG's election to:
i) the replacement of the Goods or the supply of equivalent goods;
ii) the repair of Goods;
iii) the payment of the costs of replacing the Goods or of acquiring equivalent goods; or
iv) the payment of the costs of having the Goods repaired, or in relation to services, is limited (at the election of NZCG) to one or more of the following:
v) supplying of the services again; or
vi) payment of the cost of having the services supplied again.
d) Except to the extent precluded by law, neither party is liable for loss of profits or for consequential, indirect or special damage or loss.
e) Customer is purchasing Goods for the purpose of a business and acknowledges that the CGA does not apply. Customer will contract out of the CGA in writing whenever it agrees to supply Goods to its own customers for the purpose of that customer’s business. It is agreed that the exclusions in this clause are fair and reasonable in the circumstances.
f) Customer must not give any guarantees or warranties to its customers on NZCG’s behalf without NZCG’s prior written approval.
g) If NZCG provides an express manufacturer’s warranty or guarantee for the retail end consumer in respect of any Goods, Customer is not authorised to provide that warranty or guarantee with any Goods sold by Customer that are seconds, floor stock or redundant stock unless NZCG agrees in writing.
h) If NZCG receives a claim by a consumer under the CGA or NZCG express warranty in relation to Goods sold by pg. 3 New Zealand Comfort Group Ltd Terms of Sale 2023 – Effective 1 October 2023 NZCG to Customer, Customer must cooperate with NZCG in relation to the claim including giving NZCG reasonable access to relevant information, inspection opportunities, and interviews with Customer staff.
i) To the maximum extent permitted by law the provisions of Part 3 (Sale of Goods) of the Contract and Commercial Law Act 2017 will not apply and the parties agree to contract out of sections 9, 12A and 13 of the Fair Trading Act 1986.
a) Title in the Goods remains with NZCG until payment in full in cleared funds for the Goods and all other amounts owing by Customer to NZCG.
b) NZCG is granted a security interest in all present and after acquired Goods (including any products incorporating Goods supplied by NZCG), and their proceeds, to secure all money owing by Customer to NZCG from time to time, including in the future.
c) NZCG may register a financing statement under the Personal Property Securities Act 1999 (“PPSA”). Customer must promptly give NZCG all assistance and information needed to allow NZCG to register and maintain the financing statement. Customer waives its right to receive a copy of any verification statement(s) under section 148 of the PPSA and contracts out of its rights under (or by reference to) sections 114(1)(a), 116, 120(2), 121, 125, 126, 127, 129, 131, 133 and 134 of the PPSA. Where NZCG has rights in addition to those in Part 9 of the PPSA, those rights continue to apply.
d) Customer must immediately notify NZCG of any change in Customer’s name or registered office.
e) NZCG may apply money received for supply of Goods and from the proceeds of enforcement of security interests in reduction of any part of the money owed to NZCG despite any principle or presumption of law to the contrary or direction of any person at the time of receipt, and without the need to communicate NZCG’s election.
11) IP, BRANDS, PROMOTION, POINT OF SALE MATERIALS, LABELS
a) NZCG is the owner or licensee of brands, trademarks, trade names, specifications and other intellectual property (“IP”) in relation to NZCG’s business including in relation to the Goods. Customer shall not do or allow any act or thing which may infringe or affect NZCG’s IP rights or bring NZCG, the Goods or NZCG’s IP into disrepute.
b) NZCG may allow Customer to use specified NZCG IP and may provide point of sale material (“POS”) to Customer for use in its business solely to promote NZCG’s brands and Goods. Customer shall comply with all limitations, standards or guidelines notified by NZCG from time to time about use of NZCG IP and POS. POS remains the property of NZCG, may not be disposed of by Customer without consent, and returned on demand. NZCG may register its interest in the POS under the PPSA as set out in clause 10 c).
c) Customer may not alter, remove or damage any labels, warranty cards or brochures that NZCG attaches to, places with, or supplies with the Goods.
d) The obligations in this clause 11 survive expiry or termination of these Terms.
a) Buying Group. If Customer is a member of a franchise or buying group Customer acknowledges that NZCG may disclose information to the franchisor/buying group management including concerning Customer’s purchases and account, and may pay rebates, commissions and other amounts to the franchisor/buying group related to sales to Customer. NZCG is not required to enquire into the validity of any such requests by the franchisor/buying group.
b) Retail Sales Only. Customer agrees that it is purchasing the Goods for sale to retail customers and will not sell Goods to wholesalers, distributors, other retailers or other persons for purpose of resale without NZCG’s prior consent.
i) Customer consents to NZCG collecting, using and holding credit and personal information about Customer and disclosing it to any third party in connection with these Terms including for credit management and control, order processing, delivery, warranty registration and claims, and marketing NZCG products and services to Customer.
ii) NZCG will receive from Customer personal information about other persons in relation to the Goods (e.g. retail customer names and addresses and details required for order processing, delivery, warranty registration and claims, and for marketing and promotion). Customer must ensure its terms and conditions of sale and its privacy statement authorises Customer to disclose such personal information to NZCG for all relevant purposes. NZCG will hold all such personal information in accordance with the Privacy Act.
d) Entire Agreement and Non Reliance. These Terms supersede any prior agreement, are the entire agreement between the parties on its subject matter, and may only be amended by written agreement. Customer acknowledges that it has not and will not rely on any representations or conduct of NZCG before placing an Order.
e) No Waiver. Non enforcement of any terms or nonexercise of any rights under these Terms, at any time, is not a waiver.
f) Not Agent. Each party is an independent contractor, is not the agent, partner or joint venturer of the other, and has no right or authority to act, make representations or incur any obligations on behalf of the other. pg. 4 New Zealand Comfort Group Ltd Terms of Sale 2023 – Effective 1 October 2023
g) No Assignment. Customer may not assign any of its rights under these Terms, any account or any Order without prior written consent of NZCG.
h) Working Day. In these Terms Working Day means any day excluding Saturdays, Sundays and statutory public holidays in Auckland, New Zealand.
i) Confidential. Information (including specifications and pricing) provided by NZCG is confidential (unless public knowledge other than by Customer’s breach) and must not be disclosed except with consent or as required by law. This obligation survives expiry or termination of these Terms.
j) Validity. If any part of these Terms is held to be illegal, void or invalid, all other parts of that provision/these Terms are not affected to the extent practicable.
k) Force Majeure. A party is not in breach of these Terms to the extent that the breach is caused by or results from a Force Majeure Event (which is defined as an event or circumstance beyond the reasonable control of the affected party which hinders or prevents the performance of its obligations under these Terms and which cannot be foreseen or if foreseeable is beyond its reasonable control and without its fault or negligence, but lack of money is not a Force Majeure Event). The party affected by the Force Majeure Event must promptly notify the other party of details of, and take all reasonable steps to overcome, the Force Majeure Event as soon as possible. If the affected party is unable to perform its obligations for a continuous period of more than 2 months, either party may terminate this agreement.
l) Dispute. If a dispute or claim arises in relation to these Terms(“Dispute”) the Disputing party must give written notice to the other party of details of the Dispute and remedy sought and the parties must try to resolve the Dispute. If not resolved within thirty (30) days of the notice a party may commence legal proceedings. Nothing prevents the parties agreeing on arbitration or other alternative dispute resolution or a party seeking urgent interlocutory relief.
m) Law. New Zealand law governs these Terms. The courts of New Zealand have exclusive jurisdiction. n) Notices. Notices must be in writing, signed and sent to the party’s registered office or other address (including email) that a party may specify for notices. A notice is deemed received:
i) On delivery by hand to the recipient’s address;
ii) 5 Working Days (in the place of receipt) after posting;
iii) If by email, the earlier of the sender receiving an automated message of delivery or eight hours after being sent (as shown on the sending device) unless sender receives an automated non deliverable message, provided that if the time of delivery or receipt is not a Working Day, or is after 5.00 pm on a Working Day (recipient’s local time), notice is deemed to have been received by the recipient at 9.00 am on the first Working Day after that day.