Terms & Conditions
1. DEFINITIONS
1.1. “Amount owing” means the price charged by Andrews Property Services Limited for the Goods, together with any other sums which Andrews Property Services Limited is entitled to charge under these Terms that remain unpaid.
1.2. “Andrews Property Services Ltd” shall mean Andrews Property Services Ltd, or any agents or employees thereof.
1.3. “Customer” shall mean the Customer, any person acting on behalf of and with the authority of the Customer, or any person purchasing goods and services from Andrews Property Services Ltd.
1.4. “Delivery” means delivery of the Goods in accordance with clause 7 of these Terms.
1.5. “Force Majeure Event” means any event or circumstance which is beyond the reasonable control of the affected party and which results in or causes the failure of that party to perform any of its obligations under these Terms.
1.6. “Goods” shall mean:
1.3.1 all Goods of the general description specified on the front of this agreement and supplied by Andrews Property Services Ltd to the Customer; and
1.3.2 all Goods supplied by Andrews Property Services Ltd to the Customer; and
1.3.3 all inventory of the Customer that is supplied by Andrews Property Services Ltd; and
1.3.4 all Goods supplied by Andrews Property Services Ltd and further identified in any invoice issued by Andrews Property Services Ltd to the Customer, which invoices are deemed to be incorporated into and form part of this agreement; and
1.3.5 all Goods that are marked as having been supplied by Andrews Property Services Ltd or that are stored by the Customer in a manner that enables them to be identified as having been supplied by Andrews Property Services Ltd; and
1.3.6 all of the Customer’s present and after-acquired Goods that Andrews Property Services Ltd has performed work on or to or in which goods or materials supplied or financed by Andrews Property Services Ltd have been attached or incorporated.
1.3.7 The above descriptions may overlap but each is independent of and does not limit the others.
1.7. “Goods” shall also mean all goods, services and advice provided by Andrews Property Services Ltd to the Customer and shall include without limitation the supply and installation of carpet and flooring, flooring preparation and all charges for labour, hire charges, insurance charges, or any fee or charge associated with the supply of Goods by Andrews Property Services Ltd to the Customer.
1.8. “PPSA” means the Personal Property Securities Act 1999.
1.9. “Price” shall mean the cost of the Goods as agreed between Andrews Property Services Ltd and the Customer and includes all disbursements e.g. charges Andrews Property Services Ltd pay to others on the Customer's behalf subject to clause 4 of this contract.
1.10. “Security Interest” has the same meaning given to it in the PPSA.
2. ACCEPTANCE
2.1. Any instructions received by Andrews Property Services Ltd from the Customer for the supply of Goods shall constitute a binding contract and acceptance of the terms and conditions contained herein.
3. COLLECTION AND USE OF INFORMATION – THE PRIVACY ACT 1993
3.1. The Customer acknowledges that:
3.1.1. Personal information collected or held by Andrews Property Services Ltd (whether contained in this document or otherwise obtained) is provided and may be held, used and disclosed for the following purposes:
(a) Administering, whether directly or indirectly, Andrews Property Services Ltd’s contracts and enforcing their rights, entitlements and interests under such contracts;
(b) Marketing any Goods provided by Andrews Property Services Ltd to any other party;
(c) Ascertaining at any time the Customer’s creditworthiness and obtaining at any time credit statements and/or reports in respect of the Customer;
(d) Enabling Andrews Property Services Ltd to notify any credit agency of any application for credit or default in the observance of any obligation under any agreement(s) of the Customer to Andrews Property Services Ltd and enabling Andrews Property Services Ltd to provide such personal information to any credit agency;
(e) Enabling Andrews Property Services Ltd to communicate with the Customer for any purpose.
3.1.2. Such personal information is collected by and will be held by Andrews Property Services Ltd at its registered office.
3.2. The Customer has the right under the Privacy Act 1993 to obtain access to and request correction of any personal information concerning it held by Andrews Property Services Ltd.
3.3. Where the Customer is a natural person the authorities under clause 3.1.1 are authority or consent for the purposes of the Privacy Act 1993.
4. PRICE
4.1. Where no price is stated in writing or agreed to orally, the Goods shall be deemed to be sold at the current amount as such Goods are sold by Andrews Property Services Ltd at the time of the contract.
4.2. The price may be increased by the amount of any reasonable increase in the cost of supply of the Goods that is beyond the control of Andrews Property Services Ltd or due to a Force Majeure Event between the date of the contract and delivery of the Goods.
5. PAYMENT
5.1. Unless otherwise agreed payment for Goods and services shall be made in full either:
5.1.1. Domestic – On completion;
5.1.2. Commercial - On or before the 20th day of the month following the date of the invoice (“the due date”).
5.2. Interest compounding monthly or part month may be charged on any amount owing after the due date. The rate of interest shall be equal to two times the average monthly interest rate as certified by a chartered accountant or trading bank manager, which is currently payable or which would be payable by Andrews Property Services Ltd for overdraft facilities
5.3. Any expenses, disbursements and legal costs incurred by Andrews Property Services Ltd in the enforcement of any rights contained in this contract shall be paid by the Customer, including any reasonable solicitor’s fees or debt collection agency fees.
5.4. Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
5.5. A deposit may be required. Deposits are non-refundable once Goods have been ordered.
6. QUOTATION
6.1. Where a quotation is given by Andrews Property Services Ltd for Goods:
6.1.1. Unless otherwise agreed the quotation shall be valid for thirty (30) days from the date of issue; and
6.1.2. The quotation shall be exclusive of goods and services tax unless specifically stated to the contrary;
6.1.3. Andrews Property Services Ltd reserves the right to alter the quotation because of circumstances beyond its control or a Force Majeure Event.
6.2. Where Goods are required in addition to the quotation the Customer agrees to pay for the additional cost of such Goods.
7. RISK
7.1. The Goods remain at the risk of Andrews Property Services Ltd until delivery to the Customer and/or installation.
7.2. Risk of any loss, damage or deterioration of or to the Goods passes to the Customer on Delivery.
7.3. Delivery of Goods shall be deemed complete when Andrews Property Services Ltd gives possession of the Goods directly to the Customer or possession of the Goods is given to a carrier, courier, or other bailee for purposes of transmission to the Customer.
8. TITLE AND SECURITY - PERSONAL PROPERTY SECURITIES ACT 1999 (PPSA)
The Customer agrees that to the extent permissible under the PPSA:
8.1. Title in any Goods supplied by Andrews Property Services Ltd passes to the Customer only when the Customer has made payment in full for all Goods provided by Andrews Property Services Ltd and of all other sums due to Andrews Property Services Ltd by the Customer on any account whatsoever.
8.2. As security for all obligations that the Customer may owe to Andrews Property Services Ltd from time to time, the Customer hereby grants Andrews Property Services Ltd a security interest under the Personal Property Securities Act 1999 (PPSA) in all Goods supplied by Andrews Property Services Ltd to the Customer from time to time and in the proceeds of all such Goods as well as in any negotiable instrument representing any such proceeds.
8.3. The Customer will provide Andrews Property Services Ltd on request with all information necessary for the registration of the Andrews Property Services Ltd security interest in terms of the PPSA.
8.4. If the Goods are attached, fixed, or incorporated into any property of the Customer, by way of any manufacturing or assembly process by the Customer or any third party, title in the Goods shall remain with Andrews Property Services Ltd until the Customer has made payment for all Goods, and where those Goods are mixed with other property so as to be part of or a constituent of any new Goods, title to these new Goods shall deemed to be assigned to Andrews Property Services Ltd as security for the full satisfaction by the Customer of the full amount owing between Andrews Property Services Ltd and Customer (s.82 PPSA).
8.5. Until payment in full is made or the goods are on sold, Andrews Property Services Ltd must be entitled to retake possession of the goods. To allow the Andrews Property Services Ltd to do that, the Customer grants Andrews Property Services Ltd an irrevocable right to enter at any time any premises or place where the goods are held or thought to be held and to remove the goods upon default by the Customer. Andrews Property Services Ltd may then resell the goods and retain the proceeds of such sale. Any shortfall must be a debt owed by the Customer to Andrews Property Services Ltd, and the costs of and incidental to recovery of the same from the Customer (including solicitor and client costs on an indemnity basis) must be met by the Customer.
8.6. Where Goods are retained by Andrews Property Services Ltd pursuant to clause 8.5 the Customer waives the right to receive notice under s.120 of the PPSA and to object under s.121 of the PPSA.
8.7. Andrews Property Services Ltd shall not be liable for any costs, damages, expenses or losses incurred by the Customer 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.
8.8. The following shall constitute defaults by the Customer:
8.8.1. Non-payment of any sum by the due date.
8.8.2. The Customer expresses or indicates (implicitly or otherwise) that it will not pay any sum by the due date.
8.8.3. Any Goods are seized by any other creditor of the Customer or any other creditor expresses or indicates (implicitly or otherwise) that it intends to seize Goods.
8.8.4. Any Goods in the possession of the Customer are materially damaged while any sum due from the Customer to Andrews Property Services Ltd remains unpaid.
8.8.5. The Customer is bankrupted or put into liquidation or a receiver is appointed to any of the Customer’s assets or a landlord distrains against any of the Customer’s assets.
8.8.6. A Court judgment is entered against the Customer and remains unsatisfied for seven (7) days.
8.8.7. Any material adverse change in the financial position of the Customer.
9. DEFAULT
9.1. If an event of Default occurs:
9.1.1. Andrews Property Services Ltd may suspend or terminate any contract; and
9.1.2. Any amount owing shall immediately become due and payable notwithstanding the due date for payment has not arisen; and
9.1.3. Andrews Property Services Ltd is entitled to recover from the Customer all costs that Andrews Property Services Ltd may reasonably incur in attempting to collect the amount owing (including actual legal costs and expenses and costs of collection) any other moneys owing by the Customer to
Andrews Property Services Ltd, whether in relation to any contract or on any other account whatsoever.
10. PAYMENT ALLOCATION
10.1. Andrews Property Services Ltd may in its discretion allocate any payment received from the Customer towards any invoice that Andrews Property Services Ltd determines and may do so at the time of receipt or at any time afterwards and on default by the Customer may reallocate any payments previously received and allocated. In the absence of any payment allocation by Andrews Property Services Ltd, payment shall be deemed to be allocated in such manner as preserves the maximum value of Andrews Property Services Ltd’s purchase money security interest in the Goods.
11. DISPUTES
11.1. No claim relating to Goods will be considered unless made in writing within seven (7) days of delivery and/or installation.
11.2. Any disputes by the Customer relating to an invoice issued by Andrews Property Services Limited for Goods supplies must be received in writing within thirty (30) days from the date of the invoice.
12. LIABILITY
12.1. The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon Andrews Property Services Ltd which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on Andrews Property Services Ltd, Andrews Property Services Ltd’s liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.
12.2. Except as otherwise provided by clause 12.1 Andrews Property Services Ltd shall not be liable for:
12.2.1. Any loss or damage of any kind whatsoever, arising from the supply of Goods by Andrews Property Services Ltd to the Customer, including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Goods provided by Andrews Property Services Ltd to the Customer; and
12.2.2. The Customer shall indemnify Andrews Property Services Ltd against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of Andrews Property Services Ltd or otherwise, brought by any person in connection with any matter, act, omission, or error by Andrews Property Services Ltd, its agents, or employees in connection with the Goods.
12.3. Force Majeure:
12.3.1. Notwithstanding any other provisions of these Terms, neither Andrews Property Services Limited nor the Customer shall be liable for any delay or failure in the performance of any obligation or the exercise of any right under these Terms or for any loss or damage if such performance or exercise is prevented or hindered by a Force Majeure Event. Nothing in this clause shall excuse payment of the amount owing as it becomes due under these Terms.
12.3.2. The rights and obligations of either party which are affected by a Force Majeure Event shall be suspended during the continuance of the event with either party claiming to be affected by the event giving immediate notice to the other party containing full particulars of the event. The party giving notice under this clause shall take all reasonable steps to mitigate the effects of the event.
13. WARRANTY
13.1. All work will be done as per the best trade practices, using only premium trade products and comes with our standard three-year workmanship warranty.
14. CONSUMER GUARANTEES ACT
14.1. The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Goods from Andrews Property Services Ltd for the purposes of a business in terms of section 2 and 43 of that Act.
15. PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES
15.1. If the Customer is a company or trust, the director(s) or trustee(s) signing this contract, in consideration for Andrews Property Services Ltd agreeing to supply Goods and grant credit to the Customer at their request, also sign this contract in their personal capacity and jointly and severally personally undertake as principal debtors to Andrews Property Services Ltd the payment of any and all monies now or hereafter owed by the Customer to Andrews Property Services Ltd and indemnify Andrews Property Services Ltd against nonpayment by the Customer. Any personal liability of a signatory hereto shall not exclude the Customer in any way whatsoever from the liabilities and obligations contained in this contract. The signatories and Customer shall be jointly and severally liable under the terms and conditions of this contract and for payment of all sums due hereunder.
16. ENITRE AGREEMENT
16.1. These Terms (together with any documents expressly referred to in these Terms) contain the entire agreement and understanding between the parties and supersede all prior agreements, arrangements and understandings (both oral and written) between the parties relating to the subject matter of these Terms. No other terms contained in any order or document submitted by the Customer (whether in writing, verbally or by Electronic Data Interchange (EDI)) or any other arrangement between the parties, shall apply unless otherwise expressly agreed in writing by the parties.
16.2. The Customer acknowledges and agrees that the Customer:
16.2.1. does not purchase the Goods on the basis of, and does not rely upon, any statement or representation (whether negligent or innocent) or warranty made or given by Andrews Property Services Limited, except as expressly set out in these Terms or confirmed in writing; and
16.2.2. shall be responsible for ensuring that all and any instructions, recommended uses, applications and installation methods are followed for the Goods and any cautions and/or warnings observed.
17. REVIEW OF TERMS
17.1. Andrews Property Services Limited reserves the right to review and amend any of these Terms at any time. Any change will take effect on order placed after the date on which Andrews Property Services Limited publishes the revised Terms on the Andrews Property Services website (www.apsltd.co.nz/about-us/termsand-conditions/) , except where the amended Term is found by any court or administrative body of competent jurisdiction, or otherwise considered by Andrews Property Services Limited, to be invalid, unenforceable or illegal (whether it is as between the parties to these Terms or in relation to any third party), in which case the last previously valid, enforceable and legal Term shall continue to apply.
18. MISCELLANEOUS
18.1. Failure by Andrews Property Services Ltd to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations Andrews Property Services Ltd has under this contract.
18.2. If any provision of this contract shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
18.3. The Law of New Zealand must apply to our terms of trade and building and other contracts.