Terms and Conditions
GEORGE WALKERS ONLINE AUCTIONS LIMITED Trading As George Walkers
TERMS AND CONDITIONS OF TRADE
- In these terms and conditions:
(a) ‘Customer’ means the person or firm, company or entity (or any person acting on behalf of and with the authority of such person, firm, company or entity) purchasing goods or services from GWOAL;
(b) “GST” means New Zealand Goods and Services Tax;
(c) ‘Goods’ means all good, whether new or second hand sold or to be sold, and/or supplied via the website, showroom, telephone, email, Trade Me Auctions or other written arrangement as part of the provision of services, by GWOAL to the Customer;
(d) ‘GWOAL’ means GEORGE WALKERS ONLINE AUCTIONS LIMITED and (if applicable) its related companies, successors, assigns and authorised agents;
(e) ‘Invoice’ includes any written quotation and other contractual document issued by GWOAL;
(f) ‘Property’ means the combined Goods and Services supplied.
(g) ‘Services’ means all services provided by GWOAL to the Customer at their request including buying, supplying, delivering and installing second-hand office furniture and fittings; and
(h) ‘Website’ means www.georgewalkers.co.nz;
TERMS AND CONDITIONS PARAMOUNT
- Except as expressly agreed in writing, these terms and conditions shall apply to and govern all agreements and other dealings between GWOAL and the Customer, notwithstanding any statement to the contrary, or other document of the Customer.
ORDERS FOR GOODS
- No Customer order or instructions shall bind GWOAL unless accepted by GWOAL in writing. Notwithstanding any arrangement granting credit to the Customer, GWOAL reserves the right to accept or decline any Customer order.
- Where Goods are ordered by description or by reference to a sample, GWOAL will use its best endeavours to supply Goods complying with such description or sample, but GWOAL shall not be liable for any variation in the Goods.
- The Customer shall be responsible for ensuring the accuracy of any order, and/or purchase, and of any applicable specifications. The description and specifications of any Goods and Services shall be those as displayed at GWOAL’s warehouse and/or on the website and any other written representations made by GWOAL. Where there is a GWOAL quotation and a Customer order, the terms of GWOAL’s quotation shall govern.
- Subject to clause 9 below, the Customer shall pay the price stated on GWOAL’s invoice, save for errors which GWOAL reserves the right to correct. All prices are quoted in New Zealand dollars and exclusive of GST unless indicated otherwise. The price stated on GWOAL’s quote shall remain valid for a period of 14 days from the date of the quote. The Customer acknowledges that the price may increase after the expiry of the 14 day timeframe.
- All displayed prices for Goods and for Services, whether in GWOAL’s warehouse and/or the website are subject to alteration without prior notice, and offers for its Goods and Services are only accepted at the prices ruling at the time of acceptance of the offer.
- Services provided by GWOAL shall be charged on the basis of time charged at GWOAL’s rates in force from time-to-time and as quoted to the Customer. The Customer shall pay for all materials used and all other out-of-pocket expenses incurred by GWOAL in connection with the provision of Goods and Services, including (but not only) equipment, hireage costs, travelling expenses, disposal fees, subcontractors’ fees and additional costs in completing the installation incurred by a subcontractor.
- In the event of cancellation or termination of the contract for any reason whatsoever, GWOAL shall be entitled to charge for its Services completed to date, including reimbursement for its labour costs for work completed plus an administration fee, being 5% of the contract price. If the Customer has paid a deposit or any component of the purchase price for the Goods or Services, then GWOAL shall be entitled to deduct such charges and fees from any amount paid to them by the Customer.
- The Customer shall pay in full all accounts and amounts owed to GWOAL by the payment date(s) specified in GWOAL’s invoice(s). If no payment date is specified, then payment in full is due by the 20th day of the month following the date of GWOAL’s invoice.
- Time for payment shall be of the essence. In the event that payment is not received by the due date, default interest may be charged by GWOAL at a rate equivalent to 5% per annum until all moneys, including default interest have been paid in full. All payments received shall be applied first in payment of default interest (if any).
- Any discount offered by GWOAL is contingent upon receipt of all monies owed by the Customer on or before the payment due date(s). If the Customer fails to make full payment by the due date, any discount will immediately be withdrawn and the difference between the discounted amount and the full amount that would have been charged shall be debited to the Customer’s account.
- GWOAL may at its discretion apply any payments it receives from the Customer in and towards the satisfaction of any indebtedness of the Customer to GWOAL and GWOAL shall not be bound by any conditions or qualifications that the Customer may make in relation to any payment.
- The Customer authorises GWOAL to obtain at any time from any person or entity any information that GWOAL may require for the purpose of assessing the Customer’s creditworthiness and the Customer irrevocably authorises and requests all such persons and entities to release to GWOAL any personal information held concerning the Customer.
- The Customer agrees that, in the event of its default, GWOAL may provide details of that default and personal information relating to the Customer to any credit agency so that such credit agency can maintain effective records.
DELIVERY, RISK AND INSURANCE
- Goods shall be delivered or deemed delivered to the Customer at the time the Goods are delivered to the customer’s site.
- The Customer shall be liable for the cost of delivery of Goods.
- The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged, GWOAL shall be entitled to charge a reasonable fee for storage and redelivery.
- In the event, the Customer anticipates storage will be required for a month and more, the Customer will be required to pay a 50% deposit for the Goods.
- GWOAL will endeavour to deliver Goods and provide Services within any timeframes requested by the Customer, but time for delivery shall not be of the essence and GWOAL shall not be liable for any loss to the Customer caused by any delay or non-delivery.
- GWOAL reserves the right to deliver Goods and provide Services by instalments, and failure by GWOAL to deliver any one or more instalment shall not entitle the Customer to cancel the contract as a whole.
- Any claims for errors or short delivery shall be made in writing within seven days of delivery and shall be accompanied by all supporting evidence in the Customer’s possession or under the Customer’s control.
GOODS ON HIRE
- Any Goods supplied for hire by GWOAL shall be at the Customer’s risk and until such time that the hired Goods are returned to GWOAL in the condition they were hired, the Customer shall be liable for any damage to the Goods.
- In the event Goods supplied on hire are damaged or for any reason whatsoever cannot be returned to GWOAL in the condition they were hired, or are not returned at all, the Customer shall pay GWOAL for the value of the damage to the hired Goods or the cost of replacing the hired Goods if they cannot be repaired.
- The Customer shall be liable for all costs, including legal costs on a solicitor/client basis, associated with any steps taken by GWOAL to recover from the Customer costs for damage to or replacement of hired Goods.
- If the Customer fails to pay any amount owed to GWOAL by the due date, or fails to comply with any other obligation owed to GWOAL, then without prejudice to any of its other rights, remedies and powers, GWOAL may (notwithstanding that GWOAL may have waived any previous default by the Customer):
(a) Cancel any contract and/or suspend further deliveries of Goods or provision of Services to the Customer.
(b) Enter the Customer’s premises or any other premises that the Customer is authorised to enter and retake possession of Goods and sell them without being liable in any way to the Customer. Furthermore, the Customer shall indemnify GWOAL for all costs, including legal costs on a solicitor and own client basis, claims by third parties or whatsoever in retaking possession and selling Goods.
(c) Appoint a receiver pursuant to the Receiverships Act 1993 in respect of the Property (including their proceeds) and any such receiver may take possession of the Property and sell them and otherwise exercise all rights and powers conferred on a receiver by law.
- If the Customer becomes insolvent, bankrupt, calls a meeting of creditors or goes into liquidation (voluntary or otherwise), GWOAL reserves the right to enter, and the Customer irrevocably consents to GWOAL entering, by its servants or duly authorised agents, on to the Customer's premises or on to any premises where the Goods are reasonably thought to be stored, without responsibility for any damage caused, and repossess and subsequently resell the Goods.
- Notwithstanding any other provision of these terms and conditions, GWOAL may at any time by notice in writing suspend or terminate the Customer’s Credit Account or any other agreed trading terms and require immediate payment by the Customer of all amounts owed to GWOAL and GWOAL shall be entitled to exercise the powers set out in the preceding paragraphs 26(a), (b) and (c).
- The Customer will be liable to GWOAL for all costs, charges and expenses, including collection commissions and legal costs on a solicitor and own client basis incurred by GWOAL in collecting or taking action to collect any amount owed by the Customer and in connection with the exercise, enforcement or preservation of any of GWOAL’s rights, powers or interests.
RETENTION OF TITLE
- Notwithstanding delivery and the passing of risk in Goods, or any other provision of these terms and conditions, all Goods (including, where applicable, any resulting product into which the Goods are incorporated, manufactured or commingled, whether or not the original identity of the Goods is lost) supplied by GWOAL shall remain and be the property of GWOAL as legal and equitable owner until GWOAL has received cleared payment in full of all moneys owed by the Customer to GWOAL.
- Until GWOAL has received cleared payment in full of all moneys owed by the Customer to GWOAL, the Customer shall hold the Goods as GWOAL’s fiduciary agent and bailee and shall store the Goods in such a way that it is clear that they are the property of GWOAL. Unless GWOAL directs otherwise, the Customer may use or resell the Goods by way of bona fide sale at market value in the ordinary course of its business.
- Until such time as the property in Goods passes to the Customer, provided the Goods are still in existence and have not been resold, GWOAL shall be entitled at any time to require the Customer to return the Goods to GWOAL, and GWOAL and its agents may at any time without further notice enter the Customer’s premises or any other premises where the Goods are stored and retake possession of the Goods (if required, disconnecting the Goods from any structure or equipment to which they may be attached or installed) or perfect GWOAL’s security interest in the Goods. In so doing GWOAL shall have no liability for any losses, costs or charges suffered or incurred by the Customer and the Customer indemnifies and keeps indemnified GWOAL against all liability GWOAL may have to any third party in so acting.
PERSONAL PROPERTY SECURITIES ACT 1999 (PPSA)
- The Goods and Services shall be the collateral as that term is defined in the PPSA.
- By assenting to these terms and conditions, the Customer also agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA. The Customer also agrees to granting in favour of GWOAL a security interest for the purposes of the PPSA in all present and future acquired property of the Customer. Such security interest shall secure payment of all moneys owed by the Customer to GWOAL including interest and other amounts payable under these terms and conditions and the costs of registering such security interest.
- For the security granted under clause 34 above the following shall apply:
(a) The Customer irrevocably appoints GWOAL as the Customer’s attorney to do anything required to register the security interest on the PersonalProperty Securities Register including the authority to make such inquiries and obtain such information from third parties as is necessary or desirable to register the security interest.
(b) The Customer consents to the collection from any third party of any information necessary or desirable to register the security interest.
(c) The Customer will provide such information and do such acts and execute such further documents as in the opinion of GWOAL may be necessary or desirable to enable GWOAL to register and perfect under the PPSA the security interest as a first priority interest or with such other priority as GWOAL may agree in writing.
- The Customer shall not challenge in any way GWOAL’s right to register the security interest.
- The Customer shall not seek to obtain or register a discharge of the security interest without the prior written consent of GWOAL.
- GWOAL and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
- The Customer waives the right to receive a copy of the verification statement confirming registration of a financing statement or a financing change statement relating to the security interest created by these terms and conditions.
- The Customer must not change its name without first notifying GWOAL of the new name not less than seven days before the change takes effect.
- The Customer must not allow or permit the creation of a lien over any Goods prior to payment in full to GWOAL of all moneys owed by the Customer to GWOAL.
- The Customer will upon demand pay all GWOAL’s expenses and legal costs (on a solicitor and own client basis) in connection with the registration of a financing statement or financing change statement relating to the security interest created by these terms and conditions or of obtaining an order under section 167 of the PPSA.
- No Goods are sold on a sale or return or approval basis.
WARRANTIES – DEFECTS
- It is the responsibility of the Customer to satisfy itself as to the condition, quality, suitability and fitness of Goods and/or Services for any particular purpose and no representation, warranty or undertaking in relation to the Goods or Services has been or is made or given by or on behalf of GWOAL in relation thereto.
- In the event any warranties are to apply, the Customer agrees that the warranties in respect of second-hand goods will not be the same as those for new goods.
- It is the responsibility of the Customer to ascertain the suitability of any proposed site for any installation of Goods or provision of Services, and no representation, warranty or undertaking in relation to the suitability of any such site has been or is made or given by or on behalf of GWOAL in relation thereto.
- All claims for defective Goods or Services must be in writing and delivered to GWOAL for inspection by a designated representative of GWOAL within seven days of receipt of the Goods or provision of the Services. All claims must quote the relevant GWOAL invoice number. Any claims not made within seven days of receipt will be deemed waived by the Customer.
- GWOAL will not be responsible for any damage suffered to Goods while in transit, whether caused by GWOAL or any other party.
- GWOAL shall have no liability in respect of any defect in Goods arising as a consequence of the Goods being second-hand, and/or from misuse, wilful damage, negligence, failure to follow instructions, unauthorised alteration or modification, abnormal working conditions or fair wear and tear.
- GWOAL shall have sole right to decide whether Goods or Services are capable of repair and GWOAL’s liability (if any) in respect of Goods or Services shall be limited as follows:
(a) Where Goods or Services are capable of repair, to the repair of the Goods or Services or the payment of the cost of having the Goods repaired, or re-provision of the Services or;
(b) Where Goods are incapable of repair or the Services cannot be re-provided, the payment of the original cost of acquiring the Goods and Services.
- No guarantee or warranty is given, and no obligation incurred, by GWOAL in respect of Goods or components not manufactured by GWOAL, in respect of which the Customer shall only be entitled to the benefit of any guarantee or warranty given to GWOAL by the manufacturer or supplier provided that GWOAL shall not be required to pay or incur any cost in relation thereto.
- GWOAL and their subcontractors shall have no liability in respect of damage caused to the Customer’s property or any other property.
- All Services provided by GWOAL are provided in good faith on the basis of the information provided by the Customer. Where GWOAL is requested by the Customer to provide casual advice in conjunction with the sale of Goods but not constituting the formal provision by GWOAL of Services, then GWOAL shall have no liability whatsoever in relation to any such advice given and the Customer shall rely solely on its own judgment in connection with all such matters.
- If the Customer alleges defects in GWOAL’s workmanship then the Customer shall forthwith after becoming aware of same notify GWOAL in writing. Failure to so notify GWOAL in writing shall constitute a waiver by the Customer of its rights against GWOAL in respect of any such alleged defect. GWOAL shall only be liable to rectify defects in its workmanship arising during the period of three months after completion of provision of Services.
- GWOAL shall have no liability where any Services performed or Goods supplied have been re-installed, modified, not maintained or improperly maintained or improperly used. Any rectification work required to be carried out by GWOAL shall be carried out at a place and at a time stipulated by GWOAL and the Customer shall be responsible for delivering the Goods, as the case may be, to that place by that time.
- No guarantee, warranty, representation or statement shall be binding on GWOAL unless made in writing by a director of GWOAL. Except as expressly set forth in these terms and conditions, all warranties and conditions, whether implied by law or otherwise, are excluded and GWOAL shall have no liability whatsoever to the Customer.
- GWOAL shall not be liable to the Customer for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise) even if such loss were reasonably foreseeable or GWOAL had been advised of the possibility of the Customer incurring same. If it shall be held that GWOAL has any liability to the Customer then, except as expressly set forth in these terms and conditions, the liability of GWOAL to the Customer shall not exceed the lesser of:
(a) the value of the Goods or Services the subject of any claim; or
(b) the contract price;
and GWOAL and its employees, contractors, agents, suppliers or manufacturers will not be liable to the Customer for loss or damage of any kind.
- GWOAL shall have no liability arising from, and may correct at any time, any typographical, clerical or other error or omission in any sales literature, price list, quotation, invoice, communication or other document or information issued by it.
- Nothing in these terms and conditions shall affect the rights of the Customer under the Consumer Guarantees Act 1993 or legislation in substitution thereof, provided that if the Customer is, or holds itself out to be, acquiring the Goods for the purposes of a business then the guarantees under the Consumer Guarantees Act 1993 are excluded.
- These terms record the entire understanding and agreement relating to the matters dealt with in these terms. These terms supersede all previous understandings or agreements (whether written, oral or both).
- These terms and conditions remain in force notwithstanding any neglect, forbearance or delay in enforcement. GWOAL shall not be deemed to have waived any term or condition unless such waiver shall be in writing and signed by a director of GWOAL and any such waiver shall apply only to the particular transaction to which it refers.
- If any clause or provision of these terms and conditions shall be held illegal or unenforceable by any judgment of any Court or Tribunal having competent jurisdiction, such judgment shall not affect the remaining provisions hereof which shall remain in full force and effect as if such clause or provision held to be illegal or unenforceable had not been included herein.
- These terms contract shall be governed by the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the Courts of New Zealand.