TERMS AND CONDITIONS

1. We agree to sell and you agree to purchase any Goods ordered by you via the website on the terms and conditions agreed set out in this Agreement.

2. Our website will guide you through the steps you need to take to place an order for any Goods with us. You will need to provide all required information. Please ensure that you read and check your order at each step of the process to ensure it is accurate.

3. After you place an order, you will receive an e-mail from us acknowledging that we have received your order. This notification constitutes an offer from you to us to purchase the Goods and does not constitute a binding contract between us. We will confirm our acceptance of your order by sending you an e-mail that confirms that the order has been accepted and that the Goods have been dispatched (“Order Confirmation”). The contract between us for the sale and purchase of the Goods is formed at the time we send you the Order Confirmation.

4. All orders are subject to the availability of products. We may revise our range of products or the specification of any product at any time and without notice to you.

5. We may at our complete discretion choose to reject any order you place. If we choose not to accept an order for any Goods (e.g. because the Goods are not in stock, the Goods are no longer available, or because of an error in the price on our website for the Goods or for any other reason), we will inform you of this by e-mail and we will not process your order. If you have already paid for the Goods, we will refund you the full amount including any delivery costs charged as soon as possible. We as the seller will have no further liability to you as the buyer in relation to the rejected part of that order.

6. Orders for Goods may only be made for delivery within Australia or New Zealand. Any requests for deliveries to locations outside Australia or New Zealand will not be processed.

7. We are entitled at any time to correct all errors and omissions (whether clerical, computational or otherwise) in any advertising, quotation, invoice or acknowledgement. We will notify you promptly of any error or omission we discover, and give you the option of returning the goods for a full refund.

8. Any attempt by you to vary or cancel any order you have placed with us will have no effect unless accepted in writing by us. Where we accept cancellation by you (in our sole discretion) we may levy a handling charge of up to 15% of the otherwise applicable purchase price.

Payment Terms

1. Unless otherwise agreed by us in advance, the Goods must be paid for in full at the time of placing an order for Goods using one of the methods noted on our website. Invoices will be delivered upon an order for Goods being placed and payment made.

2. Payment will not be considered payment until the payment has been fully cleared through the banking system into our bank account.

3. Payment for the Goods and all applicable delivery charges is required in advance, but we will not charge your debit card or credit card until we dispatch your order except:

   1. For the purposes of pre-authorising your card as valid, as required by your bank; or

   2. For the purposes of verifying card ownership; or

   3. if your order is being shipped by a third party.

4. You warrant that you have the appropriate authority and power to validly accept any applicable payment terms and any terms and conditions applicable to the Goods you request to purchase. You agree that you are able to, and will, meet your obligations in relation to the applicable payment terms promptly, efficiently, diligently, professionally and in accordance with any relevant laws.

5. You represent and warrant that you are over 18 and have legal capacity to contract in New Zealand. If you are using a credit or debit card, you represent and warrant that the card is issued in your name and you will pay all charges incurred through the charged services. Where we offer that you may make payments to us by means of a third party payment gateway (such as Paypal), you must also adhere to any additional terms the relevant payment service provider advises at the time of payment.

6. Payments made via the online service payment process on our website is through a secure website, but you acknowledge and agree that internet transmissions are never entirely secure or private and that while we take precautions to minimise the related risks, we cannot guarantee that any message or information you provide through the website (including credit card information) will not be read or intercepted by others who breach the relevant security measures. We are not liable for the interception, 'hacking' or other unauthorised access of information by unauthorised third parties.

7. It is your responsibility to ensure that the transaction, credit card information, and all other details you provide in relation to your payments made through the online service payment process are correct.

• Delivery of the Goods

  1. Once we have confirmed acceptance of your order, we will contact you with an estimated delivery date.

  2. Delivery will be deemed to occur when we deliver the Goods to the address you notify us of at the time you place your order for the Goods. We will not be responsible for any issues associated with your order provided that your order is delivered in accordance with your delivery instructions.

  3. The risk in the Goods shall pass to you upon delivery.

  4. You are solely responsible for ensuring that your order complies with all applicable laws and regulations of the country for which the Goods are destined. We will not be liable or responsible if you break any such law.

  5. We will make every effort to ensure delivery of the Goods is on time but will not be liable for any loss or damage, including (without limitation) consequential loss arising in any way from any delay in delivery.

  6. In the event you take possession of the Goods before they have been paid for in full, you must keep the Goods insured to protect our rights and interest in the Goods and must produce to us, upon demand, such evidence as we may require to confirm the existence of such insurance. If you default in complying with the obligations under this clause, we may insure the Goods and the cost of effecting such insurance must be paid by you to us upon demand.

  7. Our liability for shortages in the quantity of Goods delivered is limited to making up the shortages. Where you believe that there is a shortage in the quantity of the Goods delivered, you must notify us of any such claim within 7 days of delivery and must provide us with a reasonable opportunity to investigate that claim.

  8. We will ensure that Goods that are dispatched to you are adequately packed. Claims for damage or loss in transit must be made against the carrier in the prescribed manner.

  9. Prior to acknowledging delivery to the carrier you must ensure that the complete consignment as per the carrier's note has been received. If there is a shortage or visible damage to outer packaging the carrier's note must be endorsed accordingly.

  10. Within 7 days of receipt of consignment you must ensure that all Goods received are in good order and condition. No damage claims will be considered after 7 days of receipt of Goods. While no liability for goods damaged or lost in transit will be accepted by us details of any claim should be advised to us.

• Prices

  1. Prices for our Goods may be changed from time to time at our sole discretion.

  2. The prices of the Goods you order will be as quoted on our website at the time you submit your order, unless we discover that despite our reasonable efforts, some of the Goods may be incorrectly priced. If we discover an error in the price of the Goods you have ordered we will contact you to inform you of this error and we will give you the option of continuing to purchase the Product at the correct price or cancelling your order. We will not process your order until we have your instructions. If we are unable to contact you using the contact details you provided during the order process, we will treat the order as cancelled and notify you in writing. If you have already made a payment to us for Goods, and the relevant order is cancelled, we will refund the amounts already paid by you.

  3. For New Zealand or Australian delivery addresses, all prices are GST inclusive unless otherwise stated. If the rate of GST changes between the date of your order and the date of delivery, we will adjust the GST you pay, unless you have already paid for the Goods in full before the change in GST takes effect.

  4. The price of the Goods does not include delivery charges. Delivery charges are as advised to you during the checkout process, before you confirm your order.

  5. Prices do not include import fees, duties, tariffs, taxes or other imposts or charges which may be payable in relation to your order. You are solely responsible to pay any import fees, duties, taxes, and other imposts or charges which are payable in relation to your order.

• No Reliance On Information

  1. The content on our website is provided for general information only. It is not intended to constitute advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content on our website.

  2. Although we make reasonable efforts to update the information on our website, we make no representations, warranties or guarantees, whether express or implied, that the content on our website is accurate, free from errors, complete or up-to-date.

  3. You hereby acknowledge that nothing on our website will constitute financial, investment, legal and/or other professional advice and that no professional relationship of any kind is created between you and us through your use of our website. You hereby agree that you shall not make any financial, investment, legal and/or any other decision based in whole or in part on anything contained in or on our website.

  4. The opinions (if any) expressed on our website are not necessarily our opinions and do not necessarily reflect the opinion of our employee(s), agents and/or contractors.

  5. Any opinions or statements which are expressed by us on our website are or have been rendered based on specific facts, under certain conditions, and subject to certain assumptions, and may not and should not be used or relied upon for any other purpose, including, but not limited to, for use in or in connection with any legal proceeding.

• Warranties

  1. The Goods supplied in accordance with your order can only be returned with our express approval. If you believe any Goods are defective or do not match the description on our website, you should inform us immediately so that we may take the appropriate action.

  2. We rely on information from our suppliers and product manufacturers and therefore the descriptions, illustrations and literature are not binding on us.

  3. To the maximum extent permitted by law however, and subject to our obligations under the Consumer Guarantees Act 1993 (which are not affected by anything in our Terms and Conditions):

     1. We disclaim all other warranties, representations, and guarantees (whether, express, implied, or statutory), with respect to any product or any information supplied by us including, but not limited to, warranties of availability, accuracy, non-infringement, completeness, timeliness, currency, merchantability, or fitness for a particular purpose

     2. We accept no liability (whether statutory, in contract or tort (including negligence), or howsoever) to you for any physical, or special damage, direct loss, indirect loss, economic loss of any kind (including loss of profits and expectation loss), any other loss or costs (including legal and solicitor/client costs) caused or contributed to by us in respect of the Goods or the delivery of the Goods

     3. Our maximum liability (whether in contract, tort, or otherwise) for any loss, damage, or injury arising from any defect in, or non-compliance of, a product supplied to you will be limited to the price paid by you for that product or service;

     4. Our potential liability is confined to the original purchaser of any Goods from us, it being agreed that we have no liability to any purchaser of the goods from us in that our rights under the contract are not assignable without our prior written consent; and

     5. The warranty does not cover damage from misuse, accident, negligent, inappropriate or improper operation, maintenance, installation, modification or adjustment

     6. Complaints and claims for defective Goods must be made in writing to us not later than 7 days after delivery. After this time, the Goods will be deemed to be accepted by you.

  4. To the fullest extent permitted by law, at all times our potential liability is limited, at our option to:

     1. replacing any Goods that are found to be defective; or

     2. subject to clause 6.5, refunding the you for the value of the Goods that are defective

  5. The maximum liability (if any), whether in contract, tort or otherwise, in relation to claims, damages, liabilities, losses or expenses, shall be the value of the Goods (exclusive of GST) with a maximum limit of $5,000.

  6. It is agreed that where the Goods supplied for the purpose of a business then the provisions of the Consumer Guarantees Act 1993 will not apply.

• For Business Purchasers

  1. If you are purchasing any Goods for the purposes of any business activity you are involved or associated with, the following terms and conditions will apply:

     1. Business Customers – Credit Terms

        1. You agree that unless we have specifically agreed otherwise with you in writing, you must pay for all Goods, in full and without any setoff or deduction, before delivery of the Goods is due. If however we have agreed at our discretion to provide you with any ability to pay for Goods using credit or other deferred payment options, you agree that you must make payment in full by the due date for such payments

        2. Any unpaid accounts will be forwarded to a third party for collection and you agree that you will be responsible for any costs associated with such action. You agree to indemnify us for any expenses incurred (including full solicitor/client costs) of and incidental to the enforcement or attempted enforcement of the rights, remedies and powers granted to us under this Agreement.

        3. Time for payment is of the essence. If you fail to make any payment on the due date then without prejudice to any of our other rights we may:

           1. charge you interest on the unpaid overdue balance at the rate of 25% per annum from the due date until all outstanding amounts have been paid; and/or

           2. suspend or cancel all deliveries or orders of Goods to you (or any other goods or Goods supplied under any other agreement with you) without notice; and/or

           3. treat this agreement as repudiated by you; and/or

           4. appropriate any payment made by you to such of the Goods (or goods or Goods supplied under any other agreement with you) as we may in our sole discretion think fit. We may at our sole discretion apply payments made by you first in payment of default interest and secondly in reduction of invoiced amounts. We are entitled to recover from you any discount given to you for any Goods for which you are in default; and/or

           5. demand payment of any and all amounts outstanding under all of the then current contracts between you and us which will then be deemed due and payable immediately.

     2. Personal Property Securities

        1. Ownership in the Goods will not pass to you until you have paid for the same in full.

        2. You hereby grant to us a security interest pursuant to the Personal Property Securities Act 1999 (“PPSA”) over the Goods and all of your Present and After-Acquired Personal Property as collateral for all monies owing by you to us for the Goods.

        3. You agree that our rights in respect of the Goods includes any monies wherever held which are the proceeds of any sale of the Goods prior to full payment being made in respect of the same by you to us.

        4. You give us irrevocable authority to enter any premises on which the Goods are situated at any reasonable time after default by you or before default if we believe a default is likely and to remove and repossess the Goods. We will not be liable for any costs, damages, expenses or losses incurred by you or any third party as a result of this action, nor liable in contract or in tort or otherwise in any way whatsoever unless by statute such liability cannot be excluded. We may either resell any repossessed Goods and credit your account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs) or may retain any such repossessed Goods or materials supplied as part of the Goods until you have made payment in full of all amounts owing to us.

        5. The following shall constitute defaults by you:

           1. Non-payment of any sum by the due date

           2. You intimate that you will not pay any sum by the due date;

           3. The Goods are seized by any other creditor of yours or any other creditor intimates that it intends to seize the Goods;

           4. You are bankrupted or put into liquidation or a receiver is appointed to any of your assets or any other analogous event takes place;

           5. A Court judgment is entered against you and remains unsatisfied for seven (7) days;

           6. Any material adverse change in your financial position takes place.

        6. You hereby waives your rights contained in sections 114(1)(a), 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA.

     3. Resale Or On-Supply Of Goods

        1. Resale of any Goods is prohibited under these terms and conditions. Any warranties in relation to the Goods are non-transferrable and are deemed to be voided if the Goods are on-sold by you.

        2. If you on-sell the Goods you acknowledge and agree that:

           1. We make no representation and give no warrant as to the fitness and suitability of the Goods for your purposes;

           2. we are not liable to you or any other party in relation to your own trading activities, and you assume sole liability for all such matters;

           3. we have the right at all times to determine (in our sole discretion) whether we continue to accept further orders from you; and

           4. we are not liable to you for any losses of profits you may suffer, regardless of whether such losses were foreseeable for any reason.

     4. Consumer Guarantees Act 1993

        1. You acknowledge that the Goods are not supplied to you solely or mainly for personal, domestic or household purposes

        2. You agree that our goods and services are supplied to you for business purposes and that the provisions of the Consumer Guarantees Act 1993 do not apply

• Privacy Act

  1. You hereby accept and agree that as a condition of trade we may and are authorised to seek and obtain information on our customers from credit and other agencies and in the case of debtors to provide details of such to our credit and debt collection agencies.

  2. We may use personal information that we collect about you to provide the Goods to you and to administer orders and payments relating to your purchases from us.

  3. We may disclose your personal information as required by law.

  4. You can request details of your personal information that we hold, and ask us to correct it, at any time.

• Resolution Of Disputes

  1. If a dispute arises between you and us and we are unable to resolve any question, dispute of difference by discussion and negotiation, the dispute must be first referred to mediation. If it is not resolved following mediation then the dispute will be submitted to the arbitration of a single arbitrator agreed on between the parties, or in default of agreement, to be nominated by the president of the New Zealand Law Society provided however that either party has the right to refer any dispute to the Disputes Tribunal for determination in which case the total amount in respect of which an order of the Tribunal is sought will not exceed $15,000.00.

  2. Nothing in this clause shall prevent any party from seeking urgent interlocutory relief.

• Force Majeure

  1. We shall not be liable to you, the buyer, for any loss or damage, directly or indirectly arising out of or in connection with any delay in delivery of the goods, or failure to perform any term of this contract where such delay or failure is outside the seller's reasonable control, including but not limited to:

     1. an act of God (such as, but not limited to, fires, explosions, earthquakes, drought, tidal waves and floods);

     2. riot, commotion, strikes, go slows, lock outs or disorder, unless solely restricted to employees of the Supplier or of our Subcontractors; or

     3. acts or threats of terrorism.

• General

  1. If we fail to enforce any terms or to exercise our rights under these terms and conditions at any time, we have not waived those rights.

  2. If any term of this agreement is illegal, invalid or unenforceable for any reason whatsoever including, but without limitation, legislation or other provisions having the force of law or any decision of any court or other body or authority having jurisdiction, such term will be deemed to be deleted from this agreement and all other terms and conditions will remain in full force and effect.

  3. Unless any provision in this agreement expressly provides otherwise, these terms and conditions are not intended to confer a benefit on any person or class of person who is not a party to this agreement.

  4. We reserves the right to vary these terms and conditions by written notice to you whereupon such variations will thereafter apply to subsequently ordered Goods.

  5. The terms of this agreement as detailed in these terms and in our Order Confirmation constitute the entire agreement between you and us for the sale of the Goods and supersede any previous verbal or written agreement. To the extent there are any inconsistencies, the terms in the Order Confirmation take precedence over these standard terms. Any usage of trade, special agreement, or course of dealing between the parties at variance with the terms of this agreement are excluded.

  6. The law of New Zealand shall apply to this agreement and the parties submit to the exclusive jurisdiction of the New Zealand Courts.

  7. If we grant you any time, release or other indulgence, we reserve the right to later enforce that obligation or any other term or condition.

  8. In these terms, the following terms have the following meanings:

     1. “Goods” means the Goods we have agreed to sell to you as detailed in the Order Confirmation;

     2. “We” or “Us” means Winderen Australasia Limited together with our staff, agents and people acting on our behalf;

     3. “You” means the customer as detailed in the attached Order Confirmation.