1. Definitions (Applicable over all Terms relating to iStore New Zealand Limited)
1.1 ”iStore” means iStore New Zealand Limited or any agents, employees, franchises or subcontractors of iStore New Zealand Limited.
1.2 “Customer” means the party or parties receiving Goods and/or Services from iStore.
1.3 “Client” means the party or parties receiving Goods and/or Services from iStore.
1.4 ‘Due Date” means in respect to each invoice issued to the customer by iStore, the date that is seven days after the invoice date or some other date agreed in writing by the director of iStore New Zealand Limited.
1.5 “Event of Default” means an event specified in clause 6.1.
1.6 “Goods” means any items and/or materials provided to the Customer by iStore.
1.7 “Invoice” means a invoice or other such document issued by iStore to the Customer.
1.8 “Property” means the land owned by the Customer (either legally or beneficially) where iStore provides Goods and/or Services.
1.9 “Quote” means a quotation from iStore to the Customer for the supply of Goods and/or Services.
1.10 “Services” means services provided to the Customer by iStore.
1.11 “Terms and Conditions” means these terms of trade or other documentation iStore may have the customer accept when providing a quote, Service and/or providing goods.
1.12 “Loan Product” refers to any equipment and/or product that iStore is the sole owner of and has been loaned to the Customer for a temporary period.
2. Acceptance of Terms and Conditions
2.1 Any of the following done by or on behalf of the Customer shall constitute a binding contract and acceptance of these Terms and Conditions:
(a) express or implied acceptance of any Quote;
(b) acceptance of any Goods or Services;
(c) the giving of any instructions to iStore that are acted upon; or
(d) any express or implied authority given iStore to provide Goods or Services to the Customer.
3. Customer Information
3.1 The Customer authorises iStore to collect such commercial, financial and personal information about the Customer as is necessary for assessing the credit worthiness of the Customer or enforcing iStore’s right under these Terms and Conditions and further authorises iStore to disclose such information to other parties for those purposes.
3.2 Where the Customer is a natural person, the authority given pursuant to clause 3.1 shall constitute sufficient authority for the purposes of the Privacy Act 1993 and the Customer acknowledges that he or she has a right to access the information and request corrections to it.
4. Reservation of Title and Liability for Payment
4.1 Payment of Goods and Services supplied by iStore is due on the Due Date unless otherwise approved in writing by a director of iStore New Zealand Limited. iStore may in its sole discretion decide that no Goods or Services shall be supplied to the Customer until payment in received by iStore in advance of supply of the Goods of Services.
4.2 Property and ownership of any Goods and any services related to those Goods will not pass to the Customer until payment has been received in full for the total purchase price invoiced and all Goods shall be subject to a purchase security interest. iStore may require payment any owing amounts before releasing any Goods to the Customer.
4.3 Risk in the Goods shall pass at the time of delivery.
4.4 If payment for any Goods or Services is not made by the Customer to iStore in full by the Due Date, the following provisions shall apply:
(a) The Customer shall deliver the Goods to iStore on demand. In the event that the Customer does not comply with a demand immediately upon receipt or deemed receipt of the demand, iStore shall be entitled to enter upon the Customer’s premises at any time and do all things necessary to take possession of the Goods. The Customer hereby grants permission and an irrevocable licence to iStore to enter upon the premises where the Goods shall be for the purpose of doing anything necessary to take possession of the Goods;
(b) The Customer will pay interest on all the amounts owing to iStore from the Due Date to the date or dates of payment at the rate of iStore’s then current bank overdraft rate plus 5% or such lesser rate as iStore may accept in lieu thereof; and
4.5 The Customer will be responsible for all costs incurred by iStore in exercising its rights under the Terms and Conditions including, but not limited to, debt collection costs and legal fees properly incurred by iStore in seeking or obtaining recovery of amounts owing by the Customer to iStore.
4.6 Notwithstanding any request the Customer, any payment received by iStore may be appropriated by iStore to discharge such liability of the Customer to iStore as iStore sees fit.
5.1 Quotes are valid for 14 days from the date of the Quote.
5.2 iStore reserves the right by notice to the Customer to alter or amend any Quote before receipt by iStore of acceptance of the Quote by the Customer.
5.3 iStore reserves the right, by notice to the Customer, to alter any Quote at any time prior to the supply of Goods and/or Services where the alteration is due to a increase in the cost to iStore of any Goods or Services that is beyond the control of iStore.
6.1 The following events shall constitute an Event of Default:
(a) The failure to make payment by the Due Date;
(b) The Customer enters into an agreement for the sale or proposed sale of its business or assets;
(c) The Customer commits a breach of any of the Terms and Conditions and the Customer fails to remedy the breach within 7 days of receiving notice from iStore specifying the breach; and
(d) The Customer is adjudicated bankrupt, or a receiver, liquidator or offical assignee, administrator or statutory manager is appointed to the Customer or its business or assets, or any part of its assets, or the Customer is unable to pay its debts when due within the meaning of the Companies Act 1992, or iStore, acting reasonably, believes the Customer is likely to become unable to pay its debts when due, or execution of judgments for amounts over the sum of $10,000 is levied against it and not discharged within thirty (30) days or within the terms of any arrangement made with the judgement creditor, whichever is the later.
6.2 Upon the occurrence of an Event of Default any amounts currently outstanding shall become immediately due and the Due Date for all amounts shall be deemed to the earlier of the actual Due Date or the date that the Event of Default occurs.
7. Cancellation and Withdrawal of Orders
7.1 The Customer may not defer or cancel an order once accepted by iStore or once a Quote has been accepted without iStore’s consent in writing and with any request for an amendment, deferment or cancellation, the Customer must provide iStore with seven days notification in advance.
7.2 The Customer shall be responsible for and agrees to indemnify iStore for all costs incurred by iStore as a result of the Customer cancelling an order or the suspension of the provision of Goods or Services as a result of the occurrence of an Event of Default.
7.3 In the event that the provision of Goods and/or Services to the Customer is cancelled, suspended or terminated for any reason iStore shall have no responsibility whatsoever for any loss or damage of any kind which may result directly or indirectly from such cancellation or suspension or from any recovery of Goods pursuant to the provisions of these Terms and Conditions.
8. Limitations on Liability
8.1 Any description of the Goods and/or Services is given by way of identification and shall not constitute the contract a sale by description. The Customer shall take the Goods at the Customer’s own risk as to their quality, conditions or suitability for any purpose.
8.2 iStore’s liability for damages arising out of or in connection with any contract for the sale of Goods or the supply of Services to the Customer will be limited to claims in relation to faulty Goods as set out in clause 8.4, and all conditions and warranties expressed or implied by statute the common law. Equity, trade custom or usage or otherwise are hereby expressly excluded to the maximum extent permitted by law.
8.3 Any claims for the faulty Goods must be fully documented and referred to the iStore representative with whom the Customer has customary contact. Acceptance of any items will not constitute acceptance of claims. All items will be subject to inspection by iStore before credit will be considered.
8.4 To the extent permitted by law, iStore shall have the sole right to decide whether Goods are capable of repair and iStore’s liability (if any) in respect of claims under any contract arising hereunder shall be limited as follows:
(a) Where the Goods are capable of repair, to the repair of the Goods or the payment of the cost of having the Goods repaired, or
(b) Where the Goods are incapable of repair to the replacement of the Goods or the supply of equivalent Goods or the payment of the cost of replacing the Goods or of acquiring equivalent Goods.
8.5 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Goods and/or Services from iStore for business purposes in terms of sections 2 and 43 of that act.
8.6 So far as the law permits, iStore shall not be liable in any way whatsoever for any indirect or consequential loss or loss of profit arising from contract or otherwise including in particular, but not limited to, any loss by reason of delay, defective or faulty materials or workmanship, negligence or any act of matter or thing done, permitted or omitted by iStore and the Customer shall have no rights to off-set claims against the invoiced prices for Goods under any circumstances.
8.7 The Customer shall indemnify iStore against all claims and loss of any kind however caused or arising and without limiting the generality of the foregoing whether caused or arising as a result of the negligence of iStore or otherwise, brought by any person in connection with any matter of act, omission, or error by iStore in connection with the Goods and/or Services.
8.8 If, contrary to the disclaimer of liability contained in these Terms and Conditions iStore is forced or deemed to be liable, following or arising from the supply of Goods or Services to the Customer, then such liability is limited in aggregate to $100.00 inc GST
9.1 The Customer acknowledges that they have received, read and understood a copy of these Terms and Conditions.
9.2 In the event that at any time due to any circumstance including, but limited to, pressures of trading, adverse marketing conditions, financial pressure from lenders, failure to pay rent, the failure to pay taxation, internal conflicts or any other cause, there is a reason for the Customer or any of its officers or others being signatories to this form, to suspect that the Customer may be or may become unable to pay its debts when due within the meaning of the Companies Act 1993, or may be adjudicated bankrupt or have a receiver, a liquidator or official assignee, administrator or statutory manager appointed to the Customer then the Customer will notify iStore immediately.
10. Exclusions and Variations
10.1 iStore shall have the right to vary or amend any of the provisions of these Terms and Conditions from time to time. The most current version of these Terms and Conditions shall be kept on iStore’s website at http://www.istorenz.com and the Customer acknowledges that it shall be bound by the most current version of the Terms and Conditions.
11. Personal Property Securities Act 1999 ("PPSA")
11.1 The Customer grants a security interest under the Personal Property Securities Act 1999 (“PPSA”) over any Goods supplied by iStore to the Customer. The Customer shall at iStore’s request, promptly execute any document, contract, agreement, deed or other action as iStore may require to ensure that any security interest created constitutes a perfected security interest over the Goods.
11.2 The Customer waives any right to receive a verification statement in respect of any financing statement or financing change statement relating to the security interest under PPSA.
11.3 Nothing in sections 114(1)(a), 117(1), 133 and 134 of the PPSA shall apply to these Terms and Conditions. The Customer’s rights as a debtor in sections 116, 119, 120(2), 121, 125-127, 129 and 132 of the PPSA shall not apply to these Terms and Conditions.
12.1 All notices authorised or required to be made under these Terms and Conditions shall be sent by email, delivered personally or sent by prepaid mail at such address as each party may from time to time notify the other parties. All notices shall be deemed to have been received the day they are sent except where sent by post. Posted notices shall be deemed to have been received two (2) days after the date of postage.
12.2 Save as specifically and expressly contemplated in these Terms and Conditions no provision hereof shall be changed, waived or modified without the express written agreement of iStore.
12.3 These Terms and Conditions embody the entire agreement of the Customer and iStore in respect of the ordering, supply, delivery of and payment for Goods or Services, and any order received by iStore from the Customer notwithstanding any purported change to the Terms and Conditions specified by the Customer.
12.4 Any waiver or failure to execute any rights by iStore shall not be deemed a waiver of any further or other right of iStore in respect to the Customer.
12.5 The Customer shall not be entitled to rely upon any statement of any kind made by a person including a representative or agent of iStore, which include a representation of any kind, which contradicts or is contrary to these Terms and Conditions.
12.6 iStore and the Customer agree that:
(a) All the provisions of these Terms and Conditions are reasonable in all the circumstances and each provision is and will be deemed to be severable and independent; and
(b) If any provision hereof is found by any Court of competent jurisdiction to be invalid, illegal or unenforceable in any respect the validity, legality and enforceability of the remaining provisions will not be affected and the invalid, illegal or unenforceable provision shall be severed from this document.
12.7 The Customer hereby irrevocably appoints each of the directors of iStore New Zealand Ltd at any time and from time to time jointly and severally as its attorney in the event of default by the Customer in the payment of any monies due and owing by the Customer to iStore and that default continuing for more than 14 days after due date for payment for the purpose of:
(a) Taking possession of the Goods of iStore held by the Customer or on the Property and disposing of such Goods owned by it;
(b) Enforcing its rights pursuant to clause 6.2, to the extent necessary to recover any monies owing to iStore by the Customer and any costs incurred by iStore in connection with such recovery.