1.1 “HHL” means Hurrell Holdings Ltd, its successors and assigns or any person acting on behalf of, and with the authority of, Hurrell Holdings Ltd.
1.2 “Client” means the person/s purchasing the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 “Goods” means all Goods or Services supplied by HHL to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Goods as agreed between HHL and the Client in accordance with clause 4 below.
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for Goods, or accepts Delivery.
2.2 These terms and conditions may only be amended with HHL’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and HHL.
2.3 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 22 of the Electronic Transactions Act 2002 or any other applicable provisions of that Act or any Regulations referred to in that Act.
2.4 The Client acknowledges and accepts that orders for the supply of Goods may be subject to availability and if, for any reason, Goods are not, or cease to be, available, HHL will notify the Client offering the option of postponing the order until the Goods become available (on back-order), or to adjust the order with substitute Goods (as per clause 4.2), or cancelling the order entirely. HHL also reserves the right to place the Client’s order on hold until such time as the Client notifies HHL of its decision.
3. Change in Control
3.1 The Client shall give HHL not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by HHL as a result of the Client’s failure to comply with this clause.
4.1 At HHL’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by HHL to the Client; or
(b) the Price as at the date of Delivery, according to HHL’s current price list; or
(c) HHL’s quoted price (subject to clause 4.2) which:
(i) will valid for the period stated in the quotation or otherwise for a period of thirty (30) days; and
(ii) may be subject to a visual inspection by HHL of the items and/or products supplied by the Client as per clause 7.9.
(a) if a variation to the Goods which are to be supplied is requested (including any applicable designs and/or specifications); or
(b) in the event of increases to HHL in the cost of labour or materials, fluctuations in foreign currency rates of exchange or international freight and insurance charges for foreign sourced materials, which are beyond HHL’s control; or
(c) for all digitalisation or design work carried out, whether experimentally, speculatively, or otherwise at the Client’s request.
4.3 At HHL’s sole discretion, a non-refundable deposit may be required.
4.4 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by HHL, which may be:
(a) on, or before Delivery; or
(b) by way of instalments in accordance with HHL’s specified payment schedule; or
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is twenty (20) days following the end of the month of the date of any invoice given to the Client by HHL.
4.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to three percent (3%) of the Price), EFTPOS, or by any other method as agreed to between the Client and HHL.
4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to HHL an amount equal to any GST HHL must pay for any supply by HHL under the contract, or any other agreement, for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties (including custom duties or foreign taxes) that may be applicable in addition to the Price, except where they are expressly included in the Price.
5. On-Line Ordering
5.1 The Client acknowledges and agrees that:
(a) HHL does not guarantee its website’s performance; and
(b) the display of Goods on its website does not guarantee the availability of those Goods; therefore, all orders placed through HHL’s website shall be subject to order confirmation by HHL; and
(c) on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades of HHL’s website; and
(d) there are inherent hazards in electronic distribution, and as such, HHL cannot warrant against delays or errors in transmitting data between the Client and HHL, including orders, and the Client agrees that, to the maximum extent permitted by law, HHL will not be liable for any losses which the Client may suffer as a result of online-ordering not being available, or for delays or errors in transmitting orders; and
(e) when making a transaction through HHL’s website, the Client’s personal (and confidential) information will pass through a secure server using SSL (secure sockets layer) encryption technology. The encryption process ensures that the such information cannot be read, or altered, by outside influences; and
(f) if the Client is not recorded as being cardholder for any credit card being used to pay for the Goods, HHL shall be entitled to reasonably assume that the Client has received permission from the cardholder for use of the credit card for the transaction.
5.2 HHL reserves the right to terminate the Client’s order if it learns that the Client has provided false or misleading information, interfered with other users of HHL’s website, or the administration of HHL’s business, or violated these terms and conditions.
6.1 Delivery of the Goods (“Delivery”) is deemed to occur at the time that:
(a) the Client (or the Client’s nominated carrier) collects the Goods from HHL’s premises; or
(b) HHL (or HHL’s nominated carrier) delivers the Goods to the Client’s nominated address, even if the Client is not present at that address.
6.2 At HHL’s sole discretion, any costs of Delivery are in addition to the Price.
6.3 The Client must take Delivery, by receipt or collection of the Goods, whenever they are tendered for Delivery. In the event that the Client is unable to take Delivery, as arranged, then HHL shall be entitled to charge a reasonable fee for any redelivery and/or storage of the Goods.
6.4 HHL may supply the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.5 HHL estimates a timeframe of between five (5) to ten (10) working days for the completion of any order, and an additional two (2) working days for any Delivery by HHL. However any timeframe (or date) given by HHL to the Client is an estimate only, and the Client must still accept Delivery, even if late, without HHL being liable for any loss or damage incurred by the Client as a result of Delivery being late.
7.1 Risk of damage to or loss of the Goods passes to the Client on Delivery, and the Client must insure the Goods on, or before, Delivery.
7.2 If any of the Goods are damaged or destroyed following Delivery, but prior to ownership passing to the Client, HHL is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by HHL is sufficient evidence of HHL’s rights to receive the insurance proceeds without the need for any person dealing with HHL to make further enquiries.
7.3 If the Client requests HHL to deliver the Goods to an unattended address, or leave Goods outside HHL’s premises for collection, then such Goods shall be left at the Client’s sole risk.
7.4 The Client acknowledges that variations of colour and shade are inherent in fabric dye lots. While every effort will be taken by HHL to match colour and shade of the Goods, HHL shall not be liable for any loss, damage or costs, howsoever arising resulting from any variation in colour and shading between batches of the Goods or sale samples and the final Goods supplied.
7.5 While every effort will be taken by HHL to match PMS colours, HHL will take no responsibility for any variation due to substrates, half tones and/or detailed graphics between samples (including but not limited to virtual or physical samples) and the final Goods.
7.6 HHL is under no obligation to provide samples of Goods ordered other than by virtual (computerised) sample. Should a physical sample be required this will be provided on request by the Client and will be charged for as additional to the Price.
7.7 HHL shall not be held liable for inks wearing off through general wear and tear.
7.8 Prior to the production of the Goods (including any branding or embroidery of any items and/or products supplied by the Client), a pre-production approval form will be sent to the Client for sign-off approval via email, fax or post, which must be completed and returned to HHL in writing. Whilst every care is taken by HHL to carry out the instructions of the Client, it is the Client’s responsibility to undertake a final proof of designs, via the pre-production approval form, before production of the Goods can commence. Any changes that may be required must be provided to HHL in writing, and a new pre-production approval form will be provided to the Client. HHL shall be under no liability whatsoever for any errors not corrected by the Client via the pre-production approval form.
7.9 Any items and/or products supplied by the Client must be of an acceptable quality and quantity as determined by HHL. The Client acknowledges that it accepts responsibility for the suitability of purpose, quality and any faults inherent in those items and/or products. HHL:
(a) shall not be responsible for any defects, any loss or damage to the items and/or products (or any part thereof), howsoever arising from the use of items and/or products supplied by the Client; and
(b) will take reasonable care of the items and/or products, however all risk for the items and/or products will remain with the Client and HHL will not be responsible for insuring the items and/or products.
7.10 Where the Client is purchasing multiple Goods in a range of different sizes, it is the responsibility of the Client to ensure it has appraised the Goods (via a sample thereof) as sizes can vary between suppliers.
(a) the Client has paid HHL all amounts owing to HHL; and
(b) the Client has met all of its other obligations to HHL.
8.2 Receipt by HHL of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised, and until then HHL’s rights and ownership in relation to the Goods, and the contract, shall continue.
8.3 It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 8.1:
(a) the Client is only a bailee of the Goods and must return the Goods to HHL on request; and
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for HHL and must pay to HHL the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed; and
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for HHL and must pay or deliver the proceeds to HHL on demand; and
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of HHL and must sell, dispose of or return the resulting product to HHL as it so directs; and
(e) the Client irrevocably authorises HHL to enter any premises where HHL believes the Goods are kept and recover possession of the Goods; and
(f) HHL may recover possession of any Goods in transit, whether or not Delivery has occurred; and
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of HHL; and
(h) HHL may commence proceedings to recover the Price, notwithstanding that ownership of the Goods has not passed to the Client.
9. Personal Property Securities Act 1999 (“PPSA”)
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Goods, and/or any monetary obligation of the Client to HHL for Services, that have previously been supplied (if any), and that will be supplied in the future, by HHL to the Client.
9.2 The Client undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which HHL may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register; and
(b) indemnify, and upon demand reimburse, HHL for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any registration made thereby; and
(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of HHL; and
(d) immediately advise HHL of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
9.3 HHL and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
9.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
9.6 The Client shall unconditionally ratify any actions taken by HHL under clauses 9.1 to 9.5.
10.1 In consideration of HHL agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
10.2 The Client indemnifies HHL from and against all HHL’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising HHL’s rights under this clause.
10.3 The Client irrevocably appoints HHL and each director of HHL as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Client’s behalf.
11.1 The Client shall inspect the Goods on Delivery and shall within three (3) days of such time (being of the essence) notify HHL of any alleged defect, shortage in quantity, damage or failure to comply with the description or quotation. The Client shall afford HHL an opportunity to inspect the Goods within a reasonable time following such notification if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which HHL has agreed in writing that the Client is entitled to reject, HHL’s liability for any defect or damage to the Goods is:
(a) limited to the value of the express warranty (as specified in clause 11.3) provided to the Client by HHL (at HHL’s sole discretion); or
(b) limited to any warranty to which HHL is entitled, if HHL did not manufacture the Goods. HHL shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods; or
11.2 Subject to this clause 11, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 11.1; and
(c) the Goods (in their entire batch as was delivered) are returned:
11.3 Subject to the conditions of warranty set out in clause 11.4, HHL warrants that if any defect in any workmanship of HHL becomes apparent and is reported thereto within three (3) months from the date of Delivery (time being of the essence), then HHL will either (at HHL’s sole discretion) replace or remedy the workmanship. However, in respect of all claims, HHL shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship, or in properly assessing the Client’s claim.
(a) the Client failing to properly maintain or store the Goods; or
(b) the Client using the Goods for any purpose other than that for which they were designed; or
(c) the Client continuing the use of the Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user; or
(d) the Client failing to follow any instructions (including care instructions) or guidelines provided by HHL or manufacturer of the Goods; or
(e) fair wear and tear, any accident, or act of God.
11.5 HHL may, in its absolute discretion, accept non-defective Goods for return, in which case, the Client must return the Goods as per sub-clauses 11.2(c)(i) and11.2(c)(ii), and where the Goods are branded or embroidered the Client shall be required to pay a handling fee equal to:
(a) fifteen dollars ($15.00) – for orders with a quantity of less than ten (10) items; or
(b) ten percent (10%) of the Price – for bulk ordered Goods with a quantity of ten (10) items or more.
12. Intellectual Property
12.1 Where HHL has designed Goods for the Client, then the copyright in any designs shall remain the property of HHL. The Client agrees that HHL may (at no cost) use, for the purposes of marketing, or entry into any competition, any designs or digital media of the Goods which HHL has created for the Client.
12.2 The Client warrants that all designs, specifications or instructions given to HHL will not cause HHL to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify HHL against any action taken by a third party against HHL in respect of any such infringement.
12.3 The Client agrees that HHL may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which HHL has created for the Client.
13.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at HHL’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
13.2 If the Client owes HHL any money the Client shall indemnify HHL from and against all costs and disbursements incurred by HHL in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, HHL’s collection agency costs, and bank dishonour fees).
13.3 Further to any other rights or remedies HHL may have under the contract, if the Client has made payment to HHL by credit card, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by HHL under this clause 13 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under the contract.
13.4 Without prejudice to any other remedies HHL may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions HHL may suspend or terminate the supply of Goods to the Client. HHL will not be liable to the Client for any loss or damage the Client suffers because HHL has exercised its rights under this clause.
13.5 Without prejudice to HHL’s other remedies at law HHL shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to HHL shall, whether or not due for payment, become immediately payable if:
(a) any money payable to HHL becomes overdue, or in HHL’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
14.1 HHL may cancel any contract to which these terms and conditions apply, or cancel Delivery at any time before the Goods are delivered, by giving written notice to the Client. On giving such notice HHL shall repay to the Client any money paid by the Client for the Goods. HHL shall not be liable for any loss or damage whatsoever arising from such cancellation.
14.2 In the event that the Client cancels the contract, or Delivery, the Client shall be liable for any and all loss incurred (whether direct or indirect) by HHL as a direct result of the cancellation (including, but not limited to, any loss of profits). Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
15. Privacy Act 1993
(a) access, collect, retain and use any information about the Client:
(i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Client.
(b) disclose information about the Client, whether collected by HHL from the Client directly or obtained by HHL from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.
15.2 Where the Client is an individual the authorities under clause 15.1 are authorities or consents for the purposes of the Privacy Act 1993.
15.3 The Client shall have the right to request HHL for a copy of the information about the Client retained by HHL and the right to request HHL to correct any incorrect information about the Client held by HHL.
16.1 The failure by HHL to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect HHL’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
16.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of the Canterbury District in New Zealand.
16.3 HHL shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by HHL of these terms and conditions (alternatively HHL’s liability shall be limited to damages which under no circumstances shall exceed the Price).
16.4 The Client hereby disclaims any right to rescind, or cancel any contract with HHL or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by HHL and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgment.
16.5 If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by HHL to the Client.
16.6 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by HHL nor to withhold payment of any invoice because part of that invoice is in dispute, and all disputes must be provided to HHL within the time parameters as specified in clause 11.1.
16.7 HHL may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
16.8 The Client agrees that HHL may amend these terms and conditions at any time. If HHL makes a change to these terms and conditions, then that change will take effect from the date on which HHL notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for HHL to provide Goods to the Client.
16.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
16.10 The Client warrants that it has the power to enter into the contract and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that the contract creates binding and valid legal obligations on it.