Terms and Conditions
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The terms of trade set out below govern all of the supplies of Products from Harvey Furnishings ("Harvey Furnishings", "we", "us") to the customer ("you"). "Harvey Furnishings" means Harvey Furnishings Ltd or any member of the Harvey Furnishings Group of companies. These terms of trade are effective from December 1, 2010. Your acceptance of any Products from Harvey Furnishings indicates your continuing acceptance of these terms of trade. These terms apply when you acquire any Products from Harvey Furnishings Limited directly or indirectly for the purposes of a business including for rental property.
- In these conditions, "Supplier" means Harvey Furnishings's suppliers; "Products" means furnishing fabrics, curtains, blinds, tracks and shutters, together with accessories and all other products which are supplied by Harvey Furnishings to you; "Installer" means any person who carries out installation of Products, and includes you if you are supplying installation services in association with Products whether or not you have supplied the Products.
- These terms will replace all earlier Harvey Furnishings terms of trade and any conditions contained in any document used by you and purporting to have contractual effect, except that any personal guarantee contained in any earlier terms of trade or separate document is deemed to be a continuing guarantee and incorporated into these terms of trade.
Price and Orders
- Quoted prices are valid for 30 days from date of issue. Prices may be increased by the amount of any increase in our cost which is beyond our reasonable control between the date of quotation and the date of supply.
- You must pay all delivery costs, applicable taxes and duties.
- Harvey Furnishings reserves the right to refuse to accept any order or any part of an order, and to deliver Products by instalments, in which case each instalment will comprise a separate contract and shall be paid for as if it were a separate order.
Risk and delivery
- You are responsible for insurance and risk in the Products from the earlier of the time they are delivered to your designated delivery address for installation, received by a carrier for delivery to you or collected by you or your agent.
- Where goods appear to be damaged or missing you must contact the carrier and Harvey Furnishings immediately and supply to the carrier and to Harvey Furnishings a copy of the proof of delivery with the loss or damage described on it. All claims for shortage or damage during delivery must be confirmed in writing to Harvey Furnishings within 5 days of the date of delivery. Damaged goods must be made available for inspection by the carrier.
- We will make every effort to ensure delivery of Products, or performance of services, is on time, but will not be liable to you for any loss or damage arising in any way from any delay in delivery or performance, except as set out in any special agreement supplied by us. Delay in delivery or performance does not entitle you to cancel any order.
- Where you ask us to deliver goods directly to another person, that person takes possession of the goods for you as your agent, and you are still directly responsible to us under these terms.
- You must pay a deposit of 50% of the quoted price (including GST) on confirmation of order. Payments are made only when funds have fully cleared through the banking system into our bank account.
- Unless we have agreed in writing to extend credit to you, you must pay the balance by direct credit into a bank account nominated by us or by cheque or credit card before delivery.
- Where we have agreed in writing to extend credit to you, you must pay in full by the due date checked under "terms of payment" on your application form (or if no due date is checked, within 7 days of the date of invoice), unless we have agreed in writing to different payment terms. Payments which you make to us will be considered to be applied first to any amount owing in respect of service work, then to payment for any goods which have been purchased as inventory and which have been sold by you, then to payment for goods supplied by us which have not been sold by you. We may allocate your payments in this manner at any time after receipt even if we have sent you a statement which indicates payments are allocated in a different manner.
- We have sole discretion to determine the amount of credit we will extend to you at any time.
- You agree to pay for the Products in full without deduction or setoff and to pay goods and services tax and any other government duties, levies or taxes in respect of the Products. Where we have delivered only part of an order, you must pay for that part on delivery.
- If payment is not made in full by the due date, we are entitled to charge you interest on the unpaid overdue balance at the rate of 5% per annum above the current overdraft rate charged by our bankers, compounding monthly on the unpaid balance owing on the first day of each month until payment in full is received by us, and we may charge you costs (including collection costs and legal costs on a solicitor-client basis) and suspend delivery of further Products or performance of further services until the account is paid.
- Notwithstanding clauses 4.2 and 4.3 above, all payments shall immediately become due to us if you refuse to accept delivery of any Products without reasonable cause, if we reasonably believe that the information which you have given us in your application for credit is incorrect or no longer correct and you have failed to give us correct information satisfactory to us within 5 days of our request, if you sell or otherwise dispose of any goods which have not been paid for without our consent, if you become insolvent, commit any act of bankruptcy, if a receiver, liquidator or statutory manager is appointed over any of your assets or undertaking, if you make or attempt to make an arrangement or composition with creditors, or if you fail to comply with any of the provisions of clause 6.
- Property and ownership in Products, whether in their original form or incorporated in or attached to another product will not pass to you but will remain with us until we receive payment in full of the purchase price of the Products and all other amounts that you owe to us for any reason.
- Until property passes to you, you shall hold any Products in trust as fiduciary bailee for us.
- Unless otherwise notified in writing, where goods are supplied to you as inventory or otherwise for resupply (including by way of attachment to or incorporation into buildings or other manufactured or assembled goods) you are authorised to sell the Products in the ordinary course of your business, but you must hold any accounts receivable or other proceeds for our benefit. If you use any money proceeds to purchase other products, whether from Harvey Furnishings or a third party, you hold that replacement inventory and its proceeds as collateral for our benefit until all sums owing to us are paid.
- Where you acquire any Products for your own use, you must tell us immediately in writing and you must not resell or part with possession of those Products before you have paid for them in full, unless we have given you written consent.
- Where Harvey Furnishings reasonably believes you are or will be in breach of any part of clauses 4, 5 or 6 of these terms of trade:
- Harvey Furnishings or its agent may without notice enter any premises under your control to remove any Products which are the property of Harvey Furnishings, including Products installed in or attached to any buildings or to other goods, using such force as is necessary, and without prejudice to any other of Harvey Furnishings' rights;
- Harvey Furnishings may appoint a receiver of all or any part of the collateral (being Products supplied by Harvey Furnishings together with proceeds in any form) in accordance with clause 25 of the Auckland District Law Society Memorandum of General Terms and Conditions 6302, as amended from time to time. That clause is incorporated into these terms of trade in its entirety, together with any other clauses necessary for its operation.
You indemnify Harvey Furnishings against all costs and claims in respect of its exercise of rights under this clause 5.
- If we already have a perfected security interest in the products we supply to you together with their proceeds of all kinds that security interest is continued under these terms of trade. Otherwise, you grant us a security interest in the Products that we supply to you. Our security interest covers the Products together with all proceeds (including, without limitation, accounts receivable and goods purchased with proceeds), whether or not those Products have become accessions to other goods or processed or commingled into or mixed with other goods. The goods and services subject to the security interest will be described on our invoices. Where Products that we supply to you have become mixed with other similar goods supplied by other persons, you grant us a security interest in the mixed goods to the value of the Products in the mixture that we have supplied to you but which have not yet been paid for.
- You agree that you will do all acts necessary and provide to us on request all information we require to register a financing statement over the Products and their proceeds of all kinds, and that you will advise us immediately in writing of any changes to that information. You waive all rights to receive a copy of any verification statement of a financing statement.
- You agree that you will supply us, within 2 business days of our written request, with copies of all security interests registered over your personal property, and you authorise us as your agent to request information from any secured party relating to any security interest which is held in any personal property which is or has been in your possession or control.
- You agree that we may require you to pay all reasonable costs, including legal costs on a solicitor-client basis, associated with the discharge or amendment of any financing statement registered by us, whether or not the change was initiated by you.
- If we repossess goods under this agreement, we may retain those goods or dispose of them, and, after deducting reasonable costs of sale, we may credit any surplus by way of setoff against any sums owing to us. We shall not be obliged to pay to any person other than you or your receiver or liquidator any sum in excess of the total amount you owe us at the time we credit your account. We will not be obliged to reinstate this agreement or supply any goods that we have not yet delivered.
- You authorise us to search the Personal Property Securities Register at any time for any information about you or (if you are a company) your parent or associated companies.
- You acknowledge and agree that returns shall only be accepted by us in accordance with our returns policy as notified to you from time to time in writing, and that you may receive a full or partial credit for goods that have been returned to us only if, and to the extent that, we have consented in writing. You are responsible for the cost of returning any uncut faulty goods.
Compliance with samples and specifications
- Textile goods may vary in colour quality, pattern repeats and widths. Natural and natural-look fabrics are likely to have slight imperfections including slubs, seeds, colour and weave variances. You agree to accept the goods subject to these variations, provided they are within normal industry practice and standards. In particular, you acknowledge that goods may not be identical to samples or to goods previously supplied.
- Where you specify the colour, design, construction, pattern or other property of goods, you warrant that you have the right, including copyright and other intellectual property rights, to ask us to make goods to that specification, and you agree to indemnify us against all costs, losses, damages and expenses and claims which may arise as a result of our use of that specification.
- Where we deliver Products to you in uncut form, you must check, before cutting or hanging, that all goods delivered are correct with respect to the colour and quantity. Goods, including faulty goods cannot be returned after they have been cut.
- Where we provide you with pre-delivery samples, you must notify us of any incorrect colour or pattern within 24 hours.
- Harvey Furnishings warrants the Products against faulty workmanship or materials for 2 years after the date of supply to you.
- You must make any claim relating to delivery or non-delivery, installation, size or non-compliance with order within 7 days of installation or you will be deemed to have accepted the Products.
- Any warranty may be voided by damage to, misuse (including failure to line curtains hung in sunny locations), or use to an unreasonable extent of goods, negligent specification or application, inadequate packaging, cleaning or maintenance, failure to comply with care labels, unauthorised repairs, modifications or the use of unauthorised textile treatments.
- Any warranty may be voided by unreasonable use, damage or misuse (including problems caused by misuse or damage after the goods have left Harvey Furnishings' care), dampness, humidity, or other environmental causes, failure to follow care or use instructions, unauthorised repairs, modifications or the addition of accessories or consumables not supplied by Harvey Furnishings. You will not be entitled to the benefit of any warranty if any sum that you owe Harvey Furnishings for any reason is overdue.
Limitation of liability
- The provisions of the Consumer Guarantees Act 1993 ("CGA") shall not apply to any supply of Products to you, and the conditions, warranties and guarantees set out in the Sale of Goods Act 1908 or otherwise implied by statute or common law will not apply and are excluded from these terms of trade.
- Harvey Furnishings maximum liability to you (if any) shall be limited to the value of any faulty Products or services supplied, and none of Harvey Furnishings and its employees, contractors and agents, and any manufacturers of the Products will be liable to you for loss or damage of any kind however that loss or damage is caused or arises. This exclusion of liability includes, but is not limited to, costs (including costs of uninstalling and reinstalling or returning Products to Harvey Furnishings or to any manufacturer), consequential loss, loss of profits, damage caused by or arising from delays in manufacturing or delivery, faulty or delayed installation, unreasonable use, negligence (including a failure to do something which should have been done or to prevent something from happening), faulty specifications and design, and faulty materials, components, manufacture, compilation, or assembly of the Products.
- We will not be liable to you for any losses caused by events beyond our reasonable control. We will not be required to settle a strike or lockout or other industrial disturbance against our wishes in order to benefit from this clause.
Consumer Guarantees Act and other warranties
- Where you purchase any Products from us for resupply as, or incorporation into, goods or services ordinarily acquired for personal household or domestic use or consumption ("Consumer Products") you warrant that:
- if you supply the Consumer Products directly to an end user/consumer you will do so using terms and conditions of supply which exclude liability for any claims under the CGA; and
- if your customer acquires any Products for resupply, you will ensure that your customer and each person in the distribution chain will exclude liability in its contract for supply for any claims under the CGA,
but in each case only where the end user/consumer acquires Consumer Products for business purposes. You indemnify us and our installers and suppliers against any failure by you, your customers or any person in the distribution chain to properly contract out of liability to business end users/consumers under the CGA.
2. You indemnify us against all costs (including legal costs on a solicitor and own client basis) expenses, losses, damages or claims arising in any way as a result of your failure to comply with any part of these terms of trade.
- 3. Consumers who acquire Products for their personal, domestic or household use may other have rights under the Consumer Guarantees Act 1993 and the Credit Repossessions Act 1997.
Intellectual property and confidentiality
- All intellectual property shall remain the property of Harvey Furnishings or any Supplier entitled to it, and neither Harvey Furnishings nor its Suppliers transfer any right, title or interest in the intellectual property to you.
- You must not use any designs or trade marks which are the property of Harvey Furnishings or its Suppliers, or any similar designs, words or marks, or any combination of words which includes any of those trade marks or any similar words or marks, except to the extent authorised by Harvey Furnishings in writing.
- You agree to dispatch the Products only under the trademarks under which they are supplied by Harvey Furnishings, and under no circumstances shall you apply any of the trade marks to any product which is not a genuine branded product supplied to you by Harvey Furnishings.
- You must not cause or permit anything which may interfere with, damage or endanger the trade marks or other intellectual property rights of Harvey Furnishings or its Suppliers, or assist or allow others to do so.
- You must advise Harvey Furnishings immediately when you become aware of any unauthorised use or attempted use by any person of the trade marks or other intellectual property rights of Harvey Furnishings or its Suppliers.
- If your account with Harvey Furnishings is terminated, you must immediately discontinue use of any of the trade marks which are the property of Harvey Furnishings or its Suppliers in any sign, or advertising and thereafter you shall not use those trade marks directly or indirectly in connection with your business.
- You agree to ensure that all Confidential Information given by Harvey Furnishings to you is made available to your employees only on the basis that those employees at all times maintain strict confidentiality.
- This clause 12 shall survive the termination of the Agreement.
- Harvey Furnishings reserves the right to change these terms of trade from time to time.
- The Customer may not assign or purport to assign any contract with Harvey Furnishings without the written consent of Harvey Furnishings, which consent may be given at Harvey Furnishings' entire discretion.
- If Harvey Furnishings fails to enforce any terms or to exercise its rights under these terms of trade at any time, Harvey Furnishings has not waived those rights.
- If any provision of these terms of trade is held to be invalid or unenforceable for any reason, the remaining provisions shall remain in full force and effect and the parties shall adjust their respective rights and obligations in accordance with the spirit and intent of the parties as shown by these terms of trade.
- This agreement is governed by the laws of New Zealand and any dispute under it shall be subject to the exclusive jurisdiction of the Courts of New Zealand.