- “Supplier” means Domo Luxury Furniture , its successors and assigns or any person acting on behalf of and with the authority of Domo Luxury Furniture.
- “Client” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
- “Goods” means all Goods (for sale and/or hire) or Services supplied by the Supplier to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
- “Price” means the Price payable for the Goods as agreed between the Supplier and the Client in accordance with clause 6 below.
- The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
- These terms and conditions may only be amended with the consent of both parties in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and the Supplier.
- Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 22 of the Electronic Transactions Act 2002 or any other applicable provisions of that Act or any Regulations referred to in that Act.
- The Client warrants that they have the ability and capacity to pay for the Goods and must, on request by the Supplier, provide a suitable guarantee for payment.
- The Client acknowledges that the supply of Goods on credit shall not take effect until the Client has completed a credit application with the Supplier and it has been approved with a credit limit established for the account.
- In the event that the supply of Goods request exceeds the Client’s credit limit and/or the account exceeds the payment terms, the Supplier reserves the right to refuse delivery.
- These terms and conditions may be meant to be read in conjunction with the Supplier’s Hire Form, and:
- where the context so permits, the terms ‘Services or ‘Goods’, as defined therein; and
- if there are any inconsistencies between the two documents then the terms and conditions contained therein shall prevail.
- The Client will ensure that, when placing an order, sufficient information is provided to enable the Supplier to execute such order, and that the Supplier is made aware of any special requirements pertaining to the order, and the Supplier relies on the integrity of the information supplied to it.
- The Supplier takes no responsibility:
- if specifications provided by the Client are wrong or inaccurate and the Client will be liable for expenses incurred by the Supplier in the event any additional work is required to rectify the order; and
- and will not be held liable for any damages or costs resulting in the Goods being faulty as a consequence of insufficient information provided by the Client.
4. Authorised Representatives
- The Client acknowledges that the Supplier shall (for the duration of the Services) liaise directly with one (1) authorised representative, and that once introduced as such to the Supplier, that person shall have the full authority of the Client to order any Goods and/or to request any variation thereto on the Client’s behalf. The Client accepts that they will be solely liable to the Supplier for all additional costs incurred by the Supplier (including the Supplier’s profit margin) in providing any Services or variation/s requested thereto by the Client’s duly authorised representative.
- In the event that the Client’s duly authorised representative as per clause 4.1 is to have only limited authority to act on the Client’s behalf then the Client must specifically and clearly advise the Supplier in writing of the parameters of the limited authority granted to their representative.
5. Change in Control
- The Client shall give the Supplier not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by the Supplier as a result of the Client’s failure to comply with this clause.
6. Price and Payment
- At the Supplier’s sole discretion, the Price shall be either:
- as indicated on any invoice provided by the Supplier to the Client; or
- the Supplier’s quoted price (subject to clause 6.2) which:
- will be valid for the period stated in the quotation or otherwise for a period of seven (7) days;
- unless specified otherwise, excludes Delivery and/or installation (if applicable). When Delivery and installation is included, one (1) Delivery to the Client’s nominated address is assumed, with clear access during normal working hours. The Client shall be responsible to any additional transport and storage costs if the date of Delivery is postponed and Goods in production need to be stored;
- must be accepted by the Client by way of a signature in the acceptance section of the Supplier’s quotation by a duly authorised representative of the Client and faxed or emailed to the Supplier.
- The Supplier reserves the right to change the Price:
- if a variation to the Goods which are to be supplied is requested (including any applicable plans or specifications), including any additional costs incurred by the Supplier where the Client requests the acceleration of the existing schedule (as per clause 7.3); or
- as a result of an increase in the Supplier’s costs due to circumstance beyond the Supplier’s control (e.g. the nominated address not being ready as per clause 7.5, or measurements provided by the Client being incorrect, etc.).
- Variations will be detailed in writing and charged for on the basis of the Supplier’s quotation, and will be shown as variations on the Supplier’s invoice. The Client shall be required to respond to any variation submitted by the Supplier within ten (10) working days, and failure to do so will entitle the Supplier to add the cost of the variation to the Price. Payment for all variations must be made in full at their time of completion.
- At the Supplier’s sole discretion, a non-refundable deposit may be required.
- Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by the Supplier, which may be:
- before delivery of the Goods;
- by way of instalments/progress payments in accordance with the Supplier’s payment schedule;
- the date specified on any invoice or other form as being the date for payment; or
- failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by the Supplier.
- Payment may be made by cash, cheque. bank cheque, electronic/on-line banking, credit card (plus a surcharge may apply per transaction) or by any other method as agreed to between the Client and the Supplier.
- Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to the Supplier an amount equal to any GST the Supplier must pay for any supply by the Supplier under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
7. Delivery of Goods
- Delivery (“Delivery”) of the Goods is taken to occur at the time that:
- the Client or the Client’s nominated carrier takes possession of the Goods at the Supplier’s address; or
- the Supplier (or the Supplier’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
- At the Supplier’s sole discretion, the cost of delivery is in addition to the Price.
- In the event that the Supplier is required to supply the Goods urgently, requiring the Supplier’s staff to work outside normal business hours (including but not limited to working, through lunch breaks, weekends and/or public holidays), then the Supplier reserves the right to charge the Client additional labour costs (penalty rates will apply) as per clause 6.1(a), unless otherwise agreed between the Supplier and the Client.
- The Supplier may deliver the Goods by separate instalments, and each separate instalment shall:
- be delivered to the Client when completed. The Client shall accept such Goods, which shall thereafter be at the Client’s risk and (subject to clause 14) deemed as delivered. Where the Client requests the Supplier to suspend or delay any subsequent supply of Goods prior to completion thereof, the Supplier shall deliver all completed Goods to the Client as per this clause 7.4; and
- shall be invoiced and paid in accordance with the provisions in these terms and conditions.
- Any time specified by the Supplier for delivery of the Goods is an estimate only and the Supplier will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that the Supplier is unable to supply the Goods as agreed solely due to any action or inaction of the Client, then the Supplier shall be entitled to charge a reasonable fee for redelivery and/or storage.
8. Client's Responsibilities
- The Client shall ensure that the Supplier has clear and free access to the nominated address at all times to enable them to deliver the Goods. The Supplier shall not be liable for any loss or damage to the address (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas), unless due to the negligence of the Supplier.
- The Client and the Supplier shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Goods, including any Worksafe, health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
- It is the Client’s responsibility to:
- have all areas clean and clear to enable scheduled Services to be completed in accordance with the schedule of installation, and make the address available on the agreed date and time. If installation is interrupted by the failure of the Client to adhere to the installation schedule agreed to between the Supplier and the Client, any additional costs will be invoiced to the Client as an extra; and
- allocate an area for the accumulation and removal of any rubbish, and the cost of such rubbish disposal containers and/or rubbish removal services shall be incurred by the Client;
- provide the Supplier with facilities, as specified by the Supplier, (including, but not limited to, a suitable free power source), and such facilities shall be compliant with all applicable statutes, regulations and by-laws.
- Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
- If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, the Supplier is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Supplier is sufficient evidence of the Supplier’s rights to receive the insurance proceeds without the need for any person dealing with the Supplier to make further enquiries.
- If the Client requests the Supplier to leave Goods outside the Supplier’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Client’s sole risk.
- The Supplier shall not be liable whatsoever for any loss or damage to the Goods that is caused by the Client or any third party.
- The Client acknowledges that Goods supplied may:
- exhibit variations in texture, shade, colour, surface, finish, markings, veining, and contain natural fissures, occlusions, and indentations, and may fade or change colour over time. Whilst the Supplier will make every effort to match sales samples to the finished Goods (or match batches of product supplied) to minimise this occurrence, the Supplier accepts no liability whatsoever where such variations occur;
- expand, contract or distort as a result of exposure to heat, cold, weather; and
- mark or stain if exposed to certain substances; and
- be damaged or disfigured by impact or scratching.
- Timber is a hydroscopic material subject to expansion and contraction; therefore, the Supplier will accept no responsibility for gaps that may appear during prolonged dry periods.
- Where the Supplier is installing the Goods the Client warrants that the structure of the premises or equipment in or upon which these Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and the Supplier shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising in connection with the installation and work incidental thereto.
- Where the contract does not include installation of Goods by the Supplier, the Supplier shall not be liable for any defect or damage resulting from incorrect or faulty installation.
- The Supplier and the Client agree that ownership of the Goods shall not pass until:
- the Client has paid the Supplier all amounts owing to the Supplier; and
- the Client has met all of its other obligations to the Supplier.
- Receipt by the Supplier of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
- It is further agreed that:
- until ownership of the Goods passes to the Client in accordance with clause 10.1 that the Client is only a bailee of the Goods and must return the Goods to the Supplier on request.
- the Client holds the benefit of the Client’s insurance of the Goods on trust for the Supplier and must pay to the Supplier the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
- the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for the Supplier and must pay or deliver the proceeds to the Supplier on demand.
- the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of the Supplier and must sell, dispose of or return the resulting product to the Supplier as it so directs.
- the Client irrevocably authorises the Supplier to enter any premises where the Supplier believes the Goods are kept and recover possession of the Goods.
- the Supplier may recover possession of any Goods in transit whether or not delivery has occurred.
- the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Supplier.
- the Supplier may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
Personal Property Securities Act 1999 (PPSA)
- Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
- these terms and conditions constitute a security agreement for the purposes of the PPSA; and
- a security interest is taken in all Goods and/or collateral (account) – being a monetary obligation of the Client to the Supplier for Services – that have previously been supplied and that will be supplied in the future by the Supplier to the Client.
- The Client undertakes to:
- sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Supplier may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
- indemnify, and upon demand reimburse, the Supplier for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
- not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of the Supplier; and
- immediately advise the Supplier of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
- The Supplier and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
- The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
- Unless otherwise agreed to in writing by the Supplier, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
- The Client shall unconditionally ratify any actions taken by the Supplier under clauses 11.1 to 11.5.
12. Security and Charge
- In consideration of the Supplier agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
- The Client indemnifies the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Supplier’s rights under this clause.
- The Client irrevocably appoints the Supplier and each director of the Supplier as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Client’s behalf.
13. Client's Disclaimer
- The Client hereby disclaims any right to rescind, or cancel any contract with the Supplier or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by the Supplier and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgment.
14. Defects & Returns
- The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Supplier of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford the Supplier an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Supplier has agreed in writing that the Client is entitled to reject, the Supplier’s liability is limited to either (at the Supplier’s discretion) replacing the Goods or repairing the Goods.
- Goods will not be accepted for return other than in accordance with 14.1 above.
- the Client has complied with the provisions of clause 14.1; and
- the Supplier has agreed in writing to accept the return of the Goods; and
- the Goods are returned at the Client’s cost within fourteen (14) days of the delivery date; and
- the Supplier will not be liable for Goods which have not been stored or used in a proper manner; and
- the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
- Non-stocklist items or Goods made to the Client’s specifications are under no circumstances acceptable for credit or return.
- For Goods not manufactured by the Supplier, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Supplier shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
16. Consumer Guarantees Act 1993
- If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by the Supplier to the Client.
17. Intellectual Property
- The Client agrees that the Supplier may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, digital images, drawings or Goods which the Supplier has created for the Client.
18. Default and Consequences of Default
- Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Supplier’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
- If the Client owes the Supplier any money the Client shall indemnify the Supplier from and against all costs and disbursements incurred by the Supplier in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Supplier’s collection agency costs, and bank dishonour fees).
- Further to any other rights or remedies the Supplier may have under this contract, if a Client has made payment to the Supplier and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Supplier under this clause 18 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this agreement.
- Without prejudice to the Supplier’s other remedies at law the Supplier shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable if:
- any money payable to the Supplier becomes overdue, or in the Supplier’s opinion the Client will be unable to make a payment when it falls due;
- the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
- a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
- Without prejudice to any other remedies the Supplier may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Supplier may suspend or terminate the supply of Goods to the Client. The Supplier will not be liable to the Client for any loss or damage the Client suffers because the Supplier has exercised its rights under this clause.
- The Supplier may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice the Supplier shall repay to the Client any money paid by the Client for the Goods. The Supplier shall not be liable for any loss or damage whatsoever arising from such cancellation.
- In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Supplier as a direct result of the cancellation (including, but not limited to, any loss of profits).
- Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
20. Privacy Act 1993
- The Client authorises the Supplier or the Supplier’s agent to:
- access, collect, retain and use any information about the Client;
- (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
- for the purpose of marketing products and services to the Client.
- disclose information about the Client, whether collected by the Supplier from the Client directly or obtained by the Supplier from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.
- access, collect, retain and use any information about the Client;
- Where the Client is an individual the authorities under clause 20.1 are authorities or consents for the purposes of the Privacy Act 1993.
- The Client shall have the right to request the Supplier for a copy of the information about the Client retained by the Supplier and the right to request the Supplier to correct any incorrect information about the Client held by the Supplier.
21. Service of Notices
- Any written notice given under this contract shall be deemed to have been given and received:
- by handing the notice to the other party, in person;
- by leaving it at the address of the other party as stated in this contract;
- by sending it by registered post to the address of the other party as stated in this contract;
- if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
- if sent by email to the other party’s last known email address.
- Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
- The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
- These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the Auckland Courts of New Zealand.
- The Supplier shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Supplier of these terms and conditions (alternatively the Supplier’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
- Neither party to this contract may assign this contract, any payment or any other right, benefit or interest under this contract without the written consent of the other party (which shall not be unreasonably withheld). The Supplier may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of the Supplier’s sub-contractors without the authority of the Supplier.
- The Client agrees that the Supplier may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for the Supplier to provide Goods to the Client.
- Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
- Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this agreement creates binding and valid legal obligations on them.