Terms and Conditions
- DEFINITIONS AND INTERPRETATIONS
In these Terms of Trade:
(a) Credit Account means the account for purchasing Goods on credit held by the Customer with Lacklands
(b) Customer means the purchaser or intended purchaser of the Goods (and includes any agent, contractor or representative of such purchaser);
(c) Order Confirmation means a Purchase Order that has been acknowledged as ‘accepted’ by Lacklands on the relevant Website page or otherwise accepted in writing by Lacklands;
(d) Delivery means Lacklands making the Goods available at Lacklands nominated pick-up point or Lacklands delivering the Goods to the Customer’s nominated address (for which delivery charges will apply);
(e) Goods means products supplied to the Customer by the Lacklands as a result of a Order Confirmation;
(f) Purchase Order means an order made by the Customer via the Website for Goods (that complies with the Lacklands ordering procedures) (as notified by the Lacklands to the Customer);
(g) Lacklands means Lacklands LP being a limited partnership registered in New Zealand under number 2582162 (and any related party) and its successors and assigns;
(h) PPSA means the Personal Property Securities Act 1999.
(i) Terms means these Terms of Trade;
(j) Website means Lacklands website www.lacklands.co.nz
- GENERAL / CREDIT ACCOUNT
2.1 Unless otherwise agreed, all sales of Goods by Lacklands to the Customer via the Website will be subject to these Terms. By placing a Purchase Order with Lacklands, the Customer agrees to be bound by these Terms, provided that any specific terms or conditions included in an Order Confirmation will take precedence over these Terms to the extent of any inconsistency.
2.2 Lacklands reserves the right to change these Terms at any time by notice to the Customer. The amended Terms will apply to all orders for Goods placed by the Customer after receipt of such notice.
2. 3 In relation to Credit Account holders:
(a) Lacklands reserves the right to refuse credit to a Credit Holder without being obliged to provide reasons for such refusal;
(b) Lacklands may, at any time (at its sole discretion) cancel, alter or suspend any credit terms, having consideration to the financial condition of the Customer or the status of the Customer’s Credit Account.
- PRICE AND PAYMENT
3.1 The Price for any Goods ordered by the Customer will be as set out on the Website (where relevant) or otherwise set out in writing by an authorised Lacklands representative. Prices are quoted in New Zealand dollars excluding GST unless stated otherwise.
3.2 Lacklands will not supply Goods to the Customer unless Lacklands has received a Purchase Order from the Customer (which comprises an offer to purchase Goods subject to these Terms) and Lacklands has accepted such Purchaser Order in the form of an Order Confirmation. No Purchase Order is binding on Lacklands unless and until Lacklands has accepted such Purchase Order by way of an Order Confirmation.
3.3 The payment terms relating to the purchase of the Goods will be as set out on the Website upon receiving an Order Confirmation. Lacklands will not deliver the Goods until it receives payment in full unless otherwise agreed by Lacklands in writing.
3.4 In the event Goods are purchased on a Credit Account, unless requested otherwise, invoices will be sent electronically and must be paid by the 20th of the month following invoice. If any item or part of any item in an invoice is disputed, the Customer shall notify Lacklands prior to the last business day of the month in which the invoice is submitted specifying the item disputed. Payment of a disputed invoice may be deferred only in respect of the disputed part of that invoice.
3.5 Lead-times are subject to order and will be specified in the Order Confirmation.
4.1 At the option of the Customer, Delivery of the Goods shall be made by Lacklands delivering the Goods to the Customer’s nominated address for which delivery charges will apply. Delivery charges will be quoted on confirmation of delivery address by the Customer.
4.2 Lacklands is not responsible for installation of Goods unless a specific request is made by the Customer. Installation charges will be quoted on receipt of directions and is subject to approval by Lacklands (at its sole discretion).
4.3 The Customer should inspect all Goods at the time of delivery. Any claims for damage to the Goods in delivery must be recorded and notified to Lacklands as at the time of delivery (“Alleged Defects”). If the Customer does not notify the Lacklands of any claim in relation to damage of the Goods within 24 hours of delivery, then the Customer shall be deemed to have accepted the Goods in their condition.
4.4 For any Alleged Defect which Lacklands has agreed in writing that the Customer is entitled to reject, Lacklands’ liability is limited to either (at Lacklands’ discretion) replacing or repairing the relevant Goods or providing the Customer with a credit note.
- RISK AND TITLE / SECURITY INTEREST
5.1 Risk in all Goods passes to the Customer at the time of Delivery even though title may not.
5.2 Title in all Goods remains with the Lacklands until such time as full payment is made in cleared funds for all amounts owing by the Customer to the Lacklands for all Goods Delivered by Lacklands from time to time.
5.3 The Customer grants to Lacklands a security interest in the Goods as security for all amounts owing to Lacklands and the performance of the Customer’s obligations under these Terms.
5.4 The Customer acknowledges and agrees that it will execute all documents required by Lacklands to maintain, register and enforce Lacklands security interest in respect of the Goods and will indemnify Lacklands for any costs Lacklands incurs in doing the aforementioned.
5.5 If Lacklands registers the security interest created by these Terms under the PPSA, the Customer waives its right to receive a copy of verification statement(s) under the PPSA and agrees that as between Lacklands and the Customer, the Customer will have no rights under (or by reference to) sections 114(1)(a), 116, 120(2), 121, 125, 126, 127, 129, 131, 132, 133 and 134 of the PPSA, and where Lacklands has rights in addition to those in Part 9 of the PPSA, those rights shall continue to apply.
5.6 The Customer must:
(a) In addition to any other obligation, indemnify Lacklands for any cost it incurs in registering or maintaining, and/or in enforcing or attempting to enforce the security interest created by these conditions of sale;
(b) Immediately upon request by Lacklands, procure from any person considered by Lacklands to be relevant to is security position such agreement and waivers (including as equivalent to those above) as Lacklands may at any time require; and
(c) Immediately notify Lacklands of any change in the Customer’s name.
5.7 The Customer hereby irrevocably grants Lacklands and its agents authority to enter any premises owned or occupied by the Customer or on which Goods are situated at any reasonable time after a default by the Customer or before a default if Lacklands believes that a default is likely and to remove and repossess any Goods and any other property to which the Goods are attached or in which the Goods are incorporated. Lacklands shall not be liable for any costs, damages, expenses or losses suffered or incurred by the Customer or any third party as a result of this action, nor will Lacklands be liable to the Customer or such third parties in contract, tort or otherwise in any way unless by statue such liability cannot be excluded. Lacklands may (at its sole option) either resell any repossessed Goods and credit the Customer’s account with the net proceeds of sale (after deduction of all repossession, storage and selling costs) or may retain any repossessed Goods and credit the Customer’s account with the invoice value thereof less such sum as Lacklands reasonably determines on account of wear and tear, depreciation, obsolescence, loss or other costs.
5.8 The Customer undertakes to sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Lacklands may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register in respect of the security interest granted to Lacklands under this clause 5.
- WARRANTIES AND LIABILITY
6.1 Notwithstanding any provision to the contrary in these Terms, these Terms do not exclude or limit the application of any law applying to the subject matter of these Terms with respect to any Goods where to do so would either contravene that law or cause any part of this clause 6 to be void.
6.2 Unless otherwise expressly provided by Lacklands in writing in relation to the specific Goods, the Customer agrees that all statutory or implied conditions and warranties in relation to the Goods are excluded to the fullest extent permitted by law.
6.3 Lacklands liability in respect of all claims for loss, damage or injury arising from a breach of any of Lacklands obligations under these Terms or from any act or omission of Lacklands is limited, in each case, to the less of:
(a) refunding the price of the Goods (or offering credit where payment has not been made); or
(b) replacing or repairing the Goods or paying for someone else to do so.
6.4 In no circumstances will Lacklands be liable to the Customer or any other person for:
(a) any loss or damage arising or resulting (directly or indirectly) from a delay in Delivery, failure to Deliver or change in location or method of Delivery or part or multiple Deliveries;
(b) consequential, special, punitive, incidental, indirect or economic loss or damage or loss of profits, revenue or opportunity arising out of the Lacklands Delivering Goods or otherwise providing or supplying any other goods in connection with these Terms, or in respect of breach of contract, tort (including negligence) or defect in manufacturing/processing, design or information and regardless of whether the Customer has advised the Lacklands of the possibility of such losses or damages.
6.5 Lacklands will not be liable for any failure or delay in complying with any of its obligations to the Customer under the Terms if such failure or delay results from a cause beyond Lacklands reasonable control.
- RETURNS AUTHORISATION
7.1 The customer acknowledges that returns shall only be accepted by Lacklands once a request has been made by the dealer and an approval number has been given. The dealer acknowledges that they may receive a full or partial credit for goods that have been returned to Lacklands. This credit will depend on the condition of the goods, if goods have been opened and or if packaging damaged.
7.2 Returns submitted where the incorrect product has been ordered, the product is returned due to a cancelled order or the packaging is damaged and or opened, the authorised return will attract a minimum restocking fee of $25 to cover costs associated with the return.
- CONSUMER GUARANTEES ACT 1993
8.1 Where the Goods are being supplied for the purposes of a business, the Customer agrees that the Consumer Guarantees Act 1993 will not apply.
8.2 Where the supply of Goods is to a Customer who is a supplier (as defined in the Consumer Guarantees Act 1993) the Customer covenants with Lacklands that it will not make or allow to be made in respect of the Goods supplied any statements or representations as to quality or description other than those made by Lacklands. The Customer hereby indemnifies and will keep indemnified Lacklands against any claims, losses, damages and costs which may be made against Lacklands in respect of statements or representations which are contrary to the provision of this clause.
- INTELLECTUAL PROPERTY
9.1 The Customer acknowledges that Lacklands (or its licensors) is the sole owner of all intellectual property (including all trade marks (whether registered or unregistered), designs (whether registered or unregistered), brands, trade names, business know how, ideas, methodologies, routines, systems and processes) which:
(a) Relates to or arises, directly or indirectly, out of the Goods supplied by Lacklands;
(b) Is developed or contributed to by Lacklands in relation to any information, or documentation supplied by Lacklands to the Customer;
(c) Includes all information and materials on the Website; and
(d) Arises as a result of Lacklands performing any other work for the Customer.
9.2 The Customer acknowledges that the intellectual property referred to in clause 8.1 is to remain the sole property of the Lacklands (or its licensors) and that the Lacklands does not give the Customer any ownership of, or any other intellectual property interest in the same except where otherwise expressly agreed in writing by Lacklands.
10.1 All outstanding monies (including any credit arrangement for Credit Account holders) shall become immediately payable from the Customer, and Lacklands reserves the right to immediately cancel any Order and/or the Customer’s right to hold a Credit Account, if the Customer:
(a) shall cease trading;
(b) becomes insolvent;
(c) goes into receivership or liquidation or become bankrupt;
(d) permit the Goods or the Customer’s goods to be taken in execution or compound or pursuant to an arrangement with the Customer’s creditors, without prejudice to and without restricting any other rights or remedies which Lacklands may have whatsoever.
11.1 The Customer authorises Lacklands to collect, retain and use personal information about the Customer for the following purposes:
(a) Assessing the Customer’s creditworthiness;
(b) Administrating the Customer’s Orders;
(c) Receiving information from one or more credit reference agencies, concerning the credit history of the Customer;
(d) Disclosing credit-related information to, and using the credit services of, one or more credit agencies in order to assess the Customer’s creditworthiness;
11.2 The Customer has a right of access to all personal information provided to Lacklands by the Customer held by Lacklands and may request correction of that personal information.
12.1 Governing Law: New Zealand law will govern these Terms, all Purchase Orders and all transactions between the Customer and the Lacklands arising out of the supply of Goods by Lacklands to the Customer via the Website.
12.2 Disputes: The parties will use all reasonable endeavours to resolve any dispute between them. If the parties cannot resolve a dispute between themselves then they shall refer the dispute between themselves then they shall refer the dispute to mediation within seven working days of the dispute arising, to be conducted by LEADR New Zealand Limited.
12.3 Waiver: Lacklands failure or delay to exercise or enforce any right it has under these Terms shall not operate as a waiver of Lacklands right to exercise or enforce such right or any other right in the future.
12.4 Severance: Should any part of these Terms be unenforceable such part shall be severed and the remainder of these Terms shall remain binding.
12.5 Costs/Default Interest: If the Customer breaches these Terms or defaults in any amount when due:
(a) Lacklands reserves the right to charge penalty interest at 2% per month (calculated daily) on any amount owing from the date it is outstanding until payment; and
(b) The Customer shall indemnify Lacklands from and against all costs and disbursements incurred by Lacklands (including solicitor/client costs on a full indemnity basis and collection agency costs), arising from, or consequent on, enforcement and/or collection of the overdue amount.
12.6 Confidentiality: Except as required by law both parties shall preserve as confidential any information of a confidential nature that they acquire in relation to the other.
12.7 No Partnership: Notwithstanding any provision of these Terms, the parties agree that the relationship between them is not and shall not be construed to be a partnership.
12.8 Further Acts: The Customer shall execute all documents and do all acts and things as may reasonably be required by Lacklands to carry into effect the matters contemplated by these Terms.
12.9 Entire Agreement: Except as otherwise agreed in writing these Terms constitute the entire agreement between the parties.
12.10 Notice: Any letter or notice given under these Terms will be validly and sufficiently given if sent by pre-paid post, email, or by hand to the address details notified by one party to the other from time to time. A notice sent by post shall be deemed to have been received on the third working day following the day of posting. A notice sent by facsimile or electronic mail shall be deemed to have been received on the date specified on the facsimile transmission receipt or email delivery receipt.
Updated: 20th January 2019