The terms of trade set out below govern all of the supplies of Products from Acme Supplies Limited (“Acme”, “we”, “us”) to the purchaser (“you”) through this website. They are effective from 1st November 2018 and will replace all earlier Acme terms of trade and any conditions contained in any document used by you and purporting to have contractual effect. Your acceptance of any Product from Acme indicates your continuing acceptance of these terms of trade.
1.1. In these conditions, “Supplier” or “Suppliers” means manufacturers or vendors who supply goods or services to Acme; “Product” or “Products” means goods or services of any kind which are supplied by Acme to you; “Website” means any internet website owned and operated by Acme.
- Price and Orders
2.1. Prices may be altered without notice.
2.2. Prices are GST inclusive.
2.3. Acme reserves the right to refuse to accept any order or any part of an order
2.4 Acme reserves the right to cancel any order where the Product is out of stock and incorrect website information has it showing as available.
- Risk and delivery
3.1. You are responsible for insurance and risk in the Products from the earlier of the time they are received by a carrier for delivery to you or the time they are collected by you or your agent.
3.2. Freight will be charged per the website pricing.
3.3. Where goods appear to be damaged or short-delivered you must contact the carrier and Acme immediately and supply to the carrier and to Acme 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 Acme within 5 days of the date of delivery. Damaged goods must be made available for inspection by the carrier. Invoice numbers must be quoted with such notification.
3.4. 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. Delay in delivery or performance does not entitle you to cancel any order.
3.5. Unless otherwise stated in writing, all Products will be box shipped and it is your responsibility to assemble, configure and install them (where applicable).
3.6. 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 of trade.
4.1. Payment must be made in full at the time of purchase on the website, and deemed completed and approved by the website.
5.1. Property and ownership in Products 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.
5.2. Until property passes to you, you shall hold any Products in trust as fiduciary bailee for us and store them in a manner to enable them to be identified and cross referenced to particular invoices.
5.3. 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 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 replacement inventory, whether from Acme 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.
6.1. You acknowledge and agree that returns shall be accepted by us only in accordance with our returns policy 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 to their return. Documentation must be included with the goods returned explaining the reason for their return and quoting the invoice number(s) the goods were supplied on.
6.2. Where we agree to the return of goods you must return them in new condition in original undamaged packaging. A handling charge of 15% of the value of the goods returned, or such a sum as may be necessary to indemnify the company against further costs and/or losses, will be made on all returns.
- Warranties & Limitation of liability
7.1. Goods are subject to the manufacturers’ warranties only (if any). We will pass on the benefit of those warranties to you, without being directly liable to you under any warranty.
7.2. Where goods are subject to a return to base warranty, you are responsible for returning them to us and you may be responsible for additional costs including (but not limited to) freight.
7.3. Any warranty may be voided by unreasonable use, damage or misuse (including problems caused by misuse or damage after the goods have left Acme’s care), negligent installation or operation, inadequate packaging, cleaning or maintenance, unauthorised repairs, modifications or consumables not supplied by Acme. You will not be entitled to the benefit of any warranty if any sum that you owe Acme for any reason is overdue.
7.4. Generally, a defect in materials or workmanship that leads to a genuine warranty claim will be discovered within the first 90 days of use.
7.5. Acme does not supply quotes on repairs, as they are generally difficult to estimate accurately. Please send in the item and we will notify you if the cost prohibits carrying out the repair. (NB: Products that retail for under $30 are uneconomical to repair due to handling costs).
Please send repairs direct to Acme Supplies Limited, 8 Cooper Street, Havelock North 4130, as all workshop repairs are coordinated in Hastings.
7.6 Where the goods are of a kind ordinarily acquired for personal, domestic or household use or consumption in accordance with the Consumer Guarantees Act 1993 and the Consumer Guarantees Act 1993 applies to this contract:
(a) if any of the goods fail to comply with any guarantee in the Consumer Guarantees Act, Acme will repair or replace those goods;
(b) without excluding Acme’s obligations under the Consumer Guarantees Act 1993, you acknowledge that Acme does not provide any Express Guarantees (as defined in that Act) other than those expressly confirmed by Acme in writing;
(c) if the goods are acquired by you for business purposes, you agree that the Consumer Guarantees Act 1993 does not apply;
(d) if you supply the goods in trade to a person acquiring them for business purposes, it must be a term of your contract that the Consumer Guarantees Act 1993 does not apply in respect of the goods; and
(e) if you supply the goods to any person, you must not give or make any undertaking assertion or representation in relation to the goods without Acme’s prior approval in writing, and you must give the person buying the goods such product information relating to the goods as Acme requires, and you agree to indemnify Acme against any liability or cost incurred by Acme under the Consumer Guarantees Act 1993 as a result of any breach by you of these obligations.
7.7 The following terms apply wherever the Consumer Guarantees Act 1993 does not apply to this contract, or where the following terms are not inconsistent with the Consumer Guarantees Act 1993:
(a) defective goods or goods which do not comply with the contract may at Acme’s discretion be repaired or replaced, or the price refunded.
(b) any right which you may have to reject non-conforming or defective goods will only be effective if:
(i) you notify Acme in writing within fourteen days following delivery and Acme is given the opportunity to inspect the goods; and
(ii) the goods are returned unused, re-saleable and/or in the condition you received them.
(c) Acme will not repair or replace, or refund the price of any goods for so long as you are in default in relation to any amount owing.
(d) Acme accepts no liability for any claim by you or any other person, including without limitation any claim relating to or arising from:
(i) any conditions, warranties, descriptions, representations, conditions as to fitness or suitability for any purpose, tolerance to any conditions, merchantability or otherwise, whether express or implied by law, trade custom or otherwise; or
(ii) any representations, warranties, conditions or agreement made by any agent or representative which are not expressly confirmed by Acme in writing; or
(iii) any services forming part of the supply of the goods which have been performed by any third party;
and you agree to indemnify Acme against any such claim.
(e) in any event, Acme’s liability under any claim shall not exceed the price of the goods.
7.8. Nothing in these terms is intended to have the effect of contracting out of the provisions of the Consumer Guarantees Act 1993 except to the extent permitted by that Act, and these terms are to be modified to the extent necessary to give effect to that intention.
- Obligations to suppliers
8.1. We may impose certain conditions on you from time to time where our suppliers require us to do so.
- Your further obligations
9.1. 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:
(a) 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
(b) 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 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.
9.2. 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.
- Intellectual property and confidentiality
10.1. All intellectual property shall remain the property of Acme or any Supplier entitled to it, and neither Acme nor its Suppliers transfer any right, title or interest in the intellectual property to you.
10.2. You must not use any trade marks which are the property of Acme or its Suppliers, or any similar 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 Acme in writing.
10.3. You agree to dispatch the Products only under the trade marks under which they are supplied by Acme, 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 Acme.
10.4. You must not cause or permit anything which may interfere with, damage or endanger the trade marks or other intellectual property rights of Acme or its Suppliers, or assist or allow others to do so.
10.5. You must advise Acme 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 Acme or its Suppliers.
10.6. You may not register a trademark or use any business name incorporating the word “Acme”.
10.9. This clause 12 shall survive the termination of the Agreement.
11.1. Acme reserves the right to change these terms of trade from time to time.
11.2. If Acme fails to enforce any terms or to exercise its rights under these terms of trade at any time, Acme has not waived those rights.
11.3. 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.
11.4. 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.