1.1 “Hobeca” means Hobeca Trading Co Limited, its successors and assigns or any person acting on behalf of and with the authority of Hobeca.
1.2 “Customer“ means any person ordering Products from Hobeca and includes any person acting on behalf of the Customer.
1.3 “Guarantor” means those persons or entities that agree to be liable to Hobeca for the debts of the Customer, on a principal debtor basis.
1.4 “Products” shall include:
1.4.1 all products, goods, services and advice provided by or on behalf of Hobeca to the Customer and shall include without limitation the supply of electrical products and all charges for labour, hire charges, insurance charges, or any fee or charge associated with the supply of the same by Hobeca to the Customer;
1.4.2 all products that are marked as having been supplied by Hobeca or that are stored by the Customer in a manner that enables them to be identified as having been supplied by Hobeca; and
1.4.3 all of the Customer’s present and after-acquired products that Hobeca has performed work on or to or in which goods, materials or services supplied or financed by Hobeca have been attached or incorporated.
The above descriptions may overlap but each is independent of and does not limit the others.
2. QUOTATIONS AND TERMS OF CONTRACT
2.1 Where a quotation is given by Hobeca for Products;
2.1.1 any quotation made by Hobeca shall not be construed or operate as an offer or obligation to sell but shall be an invitation to treat only and Hobeca reserves the right to accept or reject in its absolute discretion any orders which may be received by Hobeca;
2.1.2 unless otherwise agreed in writing the quotation shall be valid for thirty days from the date of issue;
2.1.3 unless otherwise agreed in writing the quotation shall be exclusive of GST; and
2.1.4 Hobeca reserves the right to alter the quotation because of circumstances beyond what it considers to be within its reasonable control.
2.2 Any order received by Hobeca from the Customer for the supply of Products shall be treated as incorporating these terms and conditions (as varied from time to time under clause 14.8), notwithstanding anything to the contrary that may be contained in the Customer’s order, terms or other documents, and in the event that there is any inconsistency, these terms and conditions shall take precedence.
2.3 The Customer acknowledges that the Customer is not relying upon any representations undertakings or warranties that may have been made by Hobeca except to the extent that they are expressly set out in these terms and conditions or expressly agreed in writing by Hobeca at the time of accepting the order (and not earlier), to be a variation to these terms and conditions.
2.4 The Customer acknowledges that all descriptive specifications, illustrations, drawings, dates, dimensions or weights furnished by Hobeca or otherwise or contained in catalogues, price lists and other advertising matter of Hobeca are approximate only and are intended to be by way of a general description of the Products, and shall at all times also be subject to recognised tolerances. Where specifications, drawings or other particulars are supplied by the Customer, Hobeca’s price is made on estimates of quantities required. Should there be any adjustments in quantities above or below the quantities estimated by Hobeca and set out in a quotation, then any such increase or decrease shall be adjusted on a unit rate basis according to Hobeca’s unit prices then prevailing.
3.1 The price for the Products shall be as indicated on invoices provided by Hobeca to the Customer in respect of Products supplied. Where no price has been agreed in writing prior to invoice, the Products shall be deemed to be sold at Hobeca’s then current “standard sale price” for the Product (ex Hobeca’s Auckland store) within the relevant territory, at the date of contract.
3.2 Hobeca’s prices include packing and packaging in accordance with Hobeca’s standard practice. The cost of any additional or other form of packing or packaging requested by the Customer or which may be deemed reasonably necessary by Hobeca on account of the nature of the Products shall be for the Customer’s account and shall constitute an additional charge to the Customer payable within the relevant invoice.
3.3 Hobeca reserves the right to pass on to the Customer extra costs due to increases or changes in freight, port clearance charges, duties or other factors or materials affecting the delivered price paid by Hobeca for the relevant Products, where those increases or changes take effect between the date of contract and the date of supply. The contracted price may only be increased by Hobeca to the extent of any increase suffered by Hobeca, and without limitation may for example include any change in exchange rate or import duty.
3.4 All prices are exclusive of GST, and are quoted ex Hobeca’s Auckland store.
4.1 Payment for Products shall be made in full on or before the 20th day of the month following the date of the invoice (“the due date”) without counterclaim, setoff or deduction.
4.2 Interest may be charged on any amount owing after the due date at a rate equal to 5% above Hobeca’s trading bank’s base commercial overdraft lending rate (as varied from time to time), accruing on a daily basis and calculated from the date the payment is first due until the date payment plus interest is received in full by Hobeca.
4.3 Any collection costs, disbursements and legal expenses (including solicitor/client costs) incurred by Hobeca in the enforcement of any rights contained in these terms and conditions shall be paid on a full indemnity basis by the Customer upon demand by Hobeca.
4.4 Payment shall not be treated as having been made until it is received by Hobeca in cleared funds.
4.5 Hobeca may in its discretion allocate any payment received from the Customer towards any invoice that Hobeca 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 Hobeca payment shall be deemed to be allocated in such manner as preserves the maximum value of Hobeca’s purchase money security interest in the Products.
4.6 Hobeca may from time to time vary the Customer’s credit limit. If a purchase of Products would exceed the Customer’s current credit limit, Hobeca may require payment in cash of the excess before delivery of Products.
4.7 Equipment ordered on an indent basis cannot be cancelled without prior written agreement from Hobeca. Payment terms for indent items are payment in full to be received within seven days of the goods arriving at a New Zealand port.
5. DELIVERY AND RISK
5.1 All risk in the Products passes to the Customer on delivery.
5.2 Delivery of Products shall be treated as having been completed when Hobeca gives possession of the Products directly to the Customer or possession of the Products is given to a carrier, courier, or other bailee for purposes of transmission to the Customer or its nominee. Unless otherwise agreed in writing or where possession has been given directly to the Customer, delivery will be given from Hobeca’s Auckland store.
5.3 If any of the Products are damaged or destroyed following delivery but prior to title passing to the Customer, Hobeca is entitled to receive such amount of the insurance proceeds payable for the Products as is required to apply towards monies owing from the Customer to Hobeca. The production of these terms and conditions by Hobeca is sufficient evidence of Hobeca’s rights to receive the insurance proceeds without the need for any person dealing with Hobeca to make further enquiries.
5.4 Any time or date of delivery is an estimate only and while every reasonable effort will be made by Hobeca to tender delivery on or before the estimated delivery date Hobeca does not guarantee that delivery will take place on such estimated delivery date. Failure to deliver by the estimated delivery date shall not entitle the Customer to subsequently refuse to take delivery or to cancel any order or render Hobeca liable to the Customer for any damages.
6.1 Notwithstanding that risk may have already passed to the Customer, title to the Products shall not pass to the Customer until:
6.1.1 the Customer has paid all amounts owing for the particular Products, and
6.1.2 the Customer has met all other obligations due by the Customer to Hobeca in respect of all contracts between the Customer and Hobeca.
7. PERSONAL PROPERTY SECURITIES ACT 1999
7.1 The Customer acknowledges and agrees that:
7.1.1 these terms and conditions constitute a “security agreement” for the purposes of the Personal Property Securities Act 1999 (“PPSA”);
7.1.2 a security interest is taken in all Products previously supplied by Hobeca to the Customer (if any) and all Products that will be supplied in the future by Hobeca to the Customer;
7.1.3 the Customer shall sign any further documents and/or provide any further information that Hobeca may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register (“PPSR”);
7.1.4 the Customer shall upon demand reimburse Hobeca for all expenses incurred in registering a financing statement or financing change statement on the PPSR in relation to any Products;
7.1.5 nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions or the security interest granted, and the Customer waives its rights under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA;
7.1.6 the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA; and
7.1.7 if any Products become 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 Products shall remain with Hobeca until the Customer has made payment for all Products, and where those Products are mixed with other property so as to be part of or a constituent of any new Products, title to those new Products shall deemed to be assigned to Hobeca as security for the full satisfaction by the Customer of the full amount owing between Hobeca and the Customer.
8.1 The following shall constitute defaults by the Customer:
8.1.1 non payment of any sum by the due date;
8.1.2 the Customer intimates that it will not pay any sum by the due date;
8.1.3 any Products are seized by any other creditor of the Customer or any other creditor intimates that it intends to seize Products;
8.1.4 any Products in the possession of the Customer are materially damaged while any sum due from the Customer to Hobeca remains unpaid;
8.1.5 the Customer is bankrupted, becomes insolvent or is put into liquidation or voluntary administration or a receiver is appointed to any of the Customer’s assets;
8.1.6 a Court judgment is entered against the Customer and remains unsatisfied for more than seven (7) days;
8.1.7 the Customer is in breach of any of its obligations under these terms and conditions;
8.1.8 Hobeca has reasonable grounds to believe that the Customer will be in breach of any of its obligations under these terms and conditions; or
8.1.9 there is any material adverse change in the financial position of the Customer.
8.2 If the Customer is in default under these terms and conditions then (without prejudice to any other right or remedy of Hobeca):
8.2.1 Hobeca may give written notice cancelling or suspending delivery of or performance of all, or any part of any contract to deliver Products at any time before the Products are delivered. On giving such notice Hobeca shall repay to the Buyer any sums prepaid in respect of the Products, after first deducting all monies owing to Hobeca. Hobeca shall not otherwise be liable for any loss or damage whatever arising from such cancellation;
8.2.2 Hobeca may give written notice requiring the Customer to return the Products or any of them to Hobeca. Upon such notice the rights of the Customer to obtain title or any other interest in the Products shall cease; and
8.2.3 the Customer gives irrevocable authority to Hobeca to enter any premises occupied by the Customer or on which Products are situated at any reasonable time after default by the Customer, and to remove and repossess any Products and any other property to which Products are attached or in which Products are incorporated. Hobeca 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. Hobeca may either resell any repossessed products and credit the Customer’s account with the net proceeds of sale (after deduction of all monies owing to Hobeca) or may retain any repossessed Products and credit the Customer’s account with the invoice value less such sum as Hobeca reasonably determines on account of wear & tear, depreciation, obsolescence, loss of profit & costs
9.1 Hobeca may cancel these terms and conditions at any time by giving written notice to the Customer.
9.2 Where Hobeca cancels these terms and conditions, then unless the Customer is in default of these terms and conditions, Hobeca will use reasonable efforts to complete delivery of any Products for which Hobeca has accepted orders from the Customer. Hobeca shall not otherwise be liable for any loss or damage whatever arising from such cancellation.
9.3 In the event that the Customer cancels delivery of Products, the Customer shall be liable for any loss incurred by Hobeca (including, but not limited to, any loss of profits) up to the time of cancellation.
10. DISPUTES AND RETURN OF PRODUCTS
10.1 No claim relating to the Products will be considered unless made in writing within seven days of delivery.
10.2 Products returned for credit will be accepted only with prior written authorisation from Hobeca. Authorised returns will be subject to a handling charge of 15% (fifteen percent) and a minimum charge of $25.00 (twenty five dollars) will be levied. Any freight charges paid by Hobeca on the original shipment of Products will be deducted from the amount of credit. Merchandise returned must be unused and in the original packing or a reconditioning charge may be made. Freight on returned Product must be pre-paid.
11.1 The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statues may imply warranties or conditions or impose obligations upon Hobeca 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 Hobeca, Hobeca’s liability shall where it is allowed, be excluded or if it is not able to be excluded only apply to the minimum extent required by the relevant statute.
11.2 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires products from Hobeca for the purposes of a business in terms of sections 2 & 43 of that statute.
11.3 Except as otherwise provided by clause 11.1, for Products not manufactured by Hobeca, the only warranty given shall be the current warranty provided by the manufacturer of the Products and the Customer accepts that warranty in place of any warranty from Hobeca. Hobeca shall be entitled to manage that warranty claim process but shall not otherwise be bound by nor be responsible for the manufacturer’s warranty. If any Products are found to have been dismantled, re-assembled or had repair work carried out by any other person or organisation, the manufacturer’s warranty will automatically be cancelled and repairs and rectification from that point on will be charged to the Customer.
11.4 Except as otherwise provided by clause 11.1, Hobeca shall not be liable for any loss or damage of any kind whatsoever, arising from the supply of Products by Hobeca 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 other. In the event that Hobeca is found liable however, then Hobeca’s liability is limited to (at Hobeca’s option):
11.4.1 the replacement of such Products with products of comparable or superior quality; or
11.4.2 damages not exceeding the invoice value of such Products.
12. LOSS OR DAMAGE IN TRANSIT
12.1 Where delivery takes place at a place other than from Hobeca’s Auckland store, and only where Hobeca has agreed in writing to be responsible for carriage to the place of delivery, Hobeca agrees to repair or at its sole option to replace free of charge any Products lost or damaged in transit to the place of delivery provided always that written notice of such loss or damage is given to Hobeca no later than 3 days after the date of delivery or within such other period of time as will enable Hobeca to reasonably comply with the carrier’s conditions of carriage (if any) concerning loss or damage in transit (whichever period is the longer). In addition it is agreed and declared that;
12.1.1 Hobeca is not a common carrier; and
12.1.2 this condition limits the nature and extent of the liability of Hobeca to the Customer or to any other person that provides the sole and exclusive remedy of the Customer against Hobeca for or on account of such loss or damage.
13. COLLECTION AND USE OF INFORMATION
13.1 The Customer and Guarantor authorise Hobeca to:
13.1.1 collect, retain and use any information about the Customer and Guarantor (as the case may be), for the purpose of assessing their creditworthiness or marketing products and services; and
13.1.2 to disclose information about the Customer and Guarantor, whether collected by Hobeca from the Customer or Guarantor directly or obtained by Hobeca from any other source, to any other credit provider or and credit reporting agency for the purpose of providing or obtaining a credit reference, debt collection or notifying a default by the Customer or Guarantor.
13.2 Where the Customer or Guarantor is a natural person the authorities under clauses 13.1 and 13.2 are authorities or consents for the purposes of the Privacy Act 1993.
14.1 Hobeca reserves the right to make partial deliveries of any Products to the Customer and to invoice such partial deliveries separately. Partial deliveries shall not entitle the Customer to cancel its order.
14.2 Notwithstanding that a sample of the Products may be exhibited to and inspected by the Customer, such sample will be exhibited and inspected solely to enable the Customer to judge for itself the quality of the bulk and not so as to constitute a sale by sample.
14.3 If any provision of these terms and conditions 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.
14.4 All Products supplied by Hobeca are supplied subject to the laws of New Zealand and jurisdiction of the Courts of New Zealand.
14.5 Hobeca shall not be liable for any delay or other default due to any act of God, terrorism, war, strike, lock out, industrial action, flood, storm or other event beyond the reasonable control of Hobeca.
14.6 Failure by Hobeca to enforce any of these terms and conditions shall not be deemed to be a waiver of any of the rights or obligations Hobeca has under these terms and conditions and any obligation not to do anything shall be deemed to include an obligation not to suffer, permit or cause that thing to be done.
14.7 Where more than one Customer or Guarantor has entered into these terms and conditions, the Customer(s) and Guarantor(s) will be jointly and severally liable.
14.8 Hobeca reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Hobeca notifies the Customer of such change. That change shall be deemed to have been accepted upon the Customer ordering further Products.