Terms and Conditions - The Flooring Room

The Flooring Room – Terms and Conditions

The Terms and Conditions (“Terms”) set out below apply to and govern the supply of goods and/or services by either Ferris Flooring Limited (its successors and assigns), TFR Nelson Limited (its successors and assigns), or TFR Palmerston North Limited (its successors and assigns), each trading as “The Flooring Room” (“Company”), to you as customer (“Customer”).  Each of The Flooring Room stores is individually owned and operated. As between The Flooring Room and you as Customer, all references in these Terms to “Company” are references to The Flooring Room store you contract with/purchase from.

    1. The following Terms shall be incorporated into all contracts involving goods and services supplied by the Company to the Customer. These Terms shall prevail over any Customer’s terms and conditions to the extent that any sale of goods and services by the Company shall be concluded on these Terms only.If there is any conflict or inconsistency between these Terms and any price list, quotation, invoice or delivery docket issued by the Company, these Terms shall prevail, unless otherwise agreed in writing by the Company. 
    2. Notwithstanding clause 1.1, an authorised signatory of the Company may alter or replace these Terms at any time with effect from the date of notification to the Customer.  All orders placed subsequently by the Customer shall be upon the altered or replaced Terms.No employee, agent or representative of the Company shall have any authority to amend, modify or add to these Terms.
    1. The Company’s prices are subject to alteration without notice. The price that has been agreed as payable by the Customer may be increased by an amount necessary to adjust for:
      1. any increase or decrease in the cost of any items or services affecting the cost of supply, installation and/or delivery of the goods between the date of the Company’s acceptance of the Customer’s order and the date of delivery;
      2. any costs incurred by the Company as a result of the payment method used by the Customer.
    2. Unless stated otherwise, in addition to the price stated, the Customer shall pay any goods and services tax or other taxes, insurance, freight and handling charges in relation to the sale and delivery of the goods.
    3. Unless stated otherwise, in addition to the price stated, the Customer shall pay for any floor preparation, furniture moving, site access etc, in relation to the installation of the goods. 
    4. No order shall be binding on the Company until accepted in writing by the Company or a person authorised on its behalf, and the required deposit being paid by the Customer.  Orders once accepted by the Company may not be cancelled and goods may not be returned for credit. Notwithstanding a credit application, the Company reserves the right to accept or decline acceptance of any order in its absolute discretion. 
    5. The Company shall not be bound by clerical errors or omissions whether in computation or otherwise in any acceptance, acknowledgement or invoice and the same shall be subject to correction. 
    1. Where the Customer has completed a credit application and provided the same to the Company, the Customer warrants that the information provided in the credit application is true and correct and is supplied for the purpose of obtaining credit with the Company. 
    2. The Customer agrees that it is not entitled to any credit facilities until it receives notice in writing from the Company stating that credit facilities have been given. Any credit facility granted is subject to these Terms. Until the Customer receives notice in writing from the Company any goods that are supplied by the Company to the Customer shall be on the basis of cash upon delivery.
    3. The parties agree that, in the event of the Company (prior to approving credit) granting to the Customer time to pay for any goods supplied then such supply shall not amount to a waiver by the Company of any of these Terms nor be construed or taken to be either directly or by implication as a granting by the Company of credit facilities to the Customer and no credit facilities shall be granted unless so stated in the notice (as set out in clause 3.2).
    4. The Company may impose a credit limit at its discretion, and alter that credit limit with effect from the date of notification to the Customer. Where the credit limit is exceeded, the Company reserves the right to refuse to supply goods to the Customer.
    1. In the event of the Company granting credit facilities to the Customer then the following shall apply: 
      1. the Customer will pay the Company in full the amount specified on each invoice on or before the specified payment date by direct debit, or such other method approved by the Company in writing; 
      2. The Company may at its sole discretion apply any payments it receives from the Customer towards the satisfaction of any indebtedness of the Customer and it shall not be bound by any terms or qualifications that the Customer may make in relation to payments made under this or any other contract with the Company; 
      3. Should the Customer default in the payment of monies under these Terms when due then all monies due to the Company shall immediately become due and payable and shall be paid by the Customer within seven days of the date of demand. The Company shall be entitled to charge interest at a rate then applicable to a bank overdraft on businesses of the same kind as the Company’s plus a margin of 2% per calendar month (accruing monthly and compounding) on all overdue accounts from the date of due payment until the date of actual payment;
      4. Any expenses, costs or disbursements incurred by the Company in the collection of any overdue moneys including debt collection agency fees and/or legal fees (on a solicitor/agent/client basis), shall be recoverable from the Customer; 
      5. If the Customer fails to make any payment for the goods when such payment is due the Company may at its discretion defer deliveries until such breach is remedied by the Customer, or treat such as a repudiation of any supply agreement or arrangement, without being liable to the Customer for any losses (of any kind and whether direct or indirect or consequential) it might suffer. If the Company cancels an order in whole or in part, it may retain as liquidated damages any moneys paid by the Customer (up to a maximum of 10% of the purchase price) and sue the Customer for damages.
      6. The Customer may not withhold payment or make any deductions from or set off any amount against any amount due and owing without the Company’s prior written consent.
      7. The Company may at any time after the goods are made available require immediate payment (without the need to make formal demand) or withhold deliveries if the Company considers the Customer to be a credit risk.
      8. In the case of the Customer tendering payment by a cheque, payment shall not have been made until the cheque is honoured on presentment and the moneys payable under it are received in the Company’s bank account in cleared funds. Until such time receipt of the cheque shall not prejudice or affect the Company’s rights or remedies against the Customer or the goods. 
    2. Where the Company at its sole discretion allows the Customer to return goods other than defective or non-complying goods, the Company reserves the right to charge a return fee of such amount as the Company determines appropriate in the circumstances.
    1. No liability is accepted for loss or damage (in either case, of any kind and whether direct, indirect or consequential) or delay caused by Government order, civil commotion, accidents, fires, strikes, lock-outs or delay in obtaining raw materials whether as a result of shortage or otherwise or any other cause beyond the Company’s reasonable control. 
    1. The Company shall use its best endeavours to deliver and / or install the goods at the time requested by the Customer but will not be responsible for any loss or damage (in either case, of any kind and whether direct, indirect or consequential) arising from any delay in the delivery of the goods from any cause whatsoever nor shall any such delay entitle the Customer to cancel any order or to refuse to accept delivery at any time. 
    2. Where a Customer purchases stock only (without installation), unless otherwise agreed, the Company’s delivery obligations will be satisfied by making the goods available for collection at the Company’s premises.  Where the Company agrees to arrange delivery to other premises stipulated by the Customer, the Customer shall ensure that the Company’s carriers have uninterrupted access to such premises to enable the goods to be delivered. The Customer shall:
      1. authorise the Company to enter and to bring its vehicles on to the Customer’s property (or any property within the Customer’s control) in order to deliver the goods;
      2. take all reasonably practicable steps to ensure the safety of the delivery site and access thereto, at all times in compliance with the Health and Safety at Work Act 2015; and
      3. point out any hazards or other items for anyone effecting the delivery to be aware of.
    3. Where access is not provided or the Customer fails or refuses to take delivery of the goods, the Company’s carriers may leave the goods at the delivery address (and the goods will be deemed to be delivered).  If the Company’s carriers do not leave the goods at the delivery address the Customer shall pay the Company upon demand such amount calculated by the Company as will compensate the Company and the carriers for wasted time and expenditure including any storage charges. 
    4. The Company may deliver the goods by instalments, and each instalment shall be treated as a separate contract under these Terms.
    5. If the Company fails to deliver or makes defective delivery of part of the goods, this does not entitle the Customer to cancel the separate contract for that particular instalment (if applicable), or the contract for all the goods or any other contract or other agreement with the Company. 
    1. The risk of any loss or damage to or deterioration of goods shall pass to the Customer when the goods are delivered and/or installed, and it shall be the Customer’s obligation to insure the goods from that time. 
    2. Ownership of all goods supplied by the Company shall be retained by the Company until payment in full of all moneys (whether for the goods or installation or otherwise and including default interest) owed by the Customer to the Company.  Until payment is made: 
      1. The Customer shall hold the goods as bailee for the Company; 
      2. The Company may enter any premises where the goods may be located to take possession of the goods at any time after payment is due.  If all or any of the goods are wholly or partially installed, the Company may in its sole discretion deinstall, retrieve or sever the goods in order to remove them without being liable for any loss or damage caused or any liability incurred thereby and the Customer hereby indemnifies the Company for any claims for loss or damage that may be made against the Company as a result of the exercise by the Company of its rights pursuant to this clause. 
    3. If the Customer re-sells the goods either wholly or as part of an associated premises before such payment is made it shall hold the sale proceeds in trust for the Company in a separate bank account such that the sale proceeds are identifiable and traceable and shall account to the Company for all moneys owed by the Customer to the Company.  If the Customer resells the goods or any of them so as to create a debt owed to the Customer, the Customer hereby assigns all legal and equitable title to that debt to the Company and the Customer hereby irrevocably appoints the Company as its attorney with all powers permitted by law for the purpose of effecting any such assignment and recovery of any such debt in the name of the Customer for the benefit of the Company. 
    1. The Customer acknowledges that, for the purposes of the Personal Property Securities Act 1999 (“PPSR”) these Terms create a security interest in all the Customer’s present and after acquired personal property and all proceeds thereof including, without limitation, the goods supplied by the Company to the Customer and any proceeds of the sale of the goods as security for all of the Customer’s obligations to the Company and that the Company may register a financing statement to perfect its security interest in the Customer’s present and after acquired personal property and all proceeds thereof including, without limitation, the goods delivered or to be delivered to the Customer and any proceeds thereof in accordance with the provisions of the PPSA.
    2. The Customer shall provide all information, execute or arrange for execution of all documents and do all other things that the Company may require to ensure that the Company has a perfected first ranking security interest in the goods under the PPSA. 
    3. The Company and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA apply to these Terms. 
    4. The Customer waives its rights as debtor under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA.
    5. Unless otherwise agreed in writing by the Company, the Customer waives its right to receive a verification statement in respect of any financing statement or financing change statement registered by or on behalf of the Company under section 148 of the PPSA. The Customer shall immediately upon request by the Company, procure from any person considered by the Company to be relevant to its security position such agreements and waivers as the Company may at any time require. 
    6. The Customer shall immediately notify the Company of any change in the Customer’s name, address details and any other information provided to the Company to enable the Company to register a financing change statement if required. 
    1. Save for any manufacturers warranties provided or assigned to the Customer and any warranties or conditions conferred in writing by the Company on the Customer in relation to particular goods supplied  by the Company to the Customer, the Company makes no representation and gives no assurance, condition or warranty of any kind to the Customer (including any assurance, condition or warranty implied by law to the extent that the assurance, condition or warranty can be excluded) in relation to the goods. It accepts no liability for any assurance, condition, warranty, representation, statement or term not expressly set out in these Terms or other writing given by the Company to the Customer.  
    2. The Customer specifically acknowledges that where it is acquiring the goods for business purposes the provisions of the Consumer Guarantees Act 1993 are excluded. 
    3. Where the Customer is supplying the goods to a third party for business purposes the Customer shall ensure that in its terms of trade it contracts out of any liability under the Consumer Guarantees Act 1993 and the Customer indemnifies the Company in respect of any failure to do so.
    4. The benefit of any warranties and conditions conferred by the manufacturer or by the Company on the Customer are personal to the Customer and are non-assignable. 
    5. To the extent permitted by law, the Company shall not be liable for any special or consequential damages arising, whether directly or indirectly out of the supply of goods or services, the performance or non-performance by the Company of any obligation under these Terms.
    6. Save as provided for by clause 9.7, the Company shall not be liable for any loss, damage or liability of any kind whatsoever (including consequential loss or lost profit or business) that:
      1. is suffered or incurred by the Customer or another person; and
      2. arises directly or indirectly from, or is any way connected to, the supply of our goods and performance of our services; and
      3. is subject to a claim in tort (including negligence and nuisance), contract or otherwise.
    7. To the extent permitted by law, regardless of the legal basis of any claim of any kind made against the Company, the Company’s maximum liability to the Customer under any circumstances shall not exceed the purchase price paid or payable for the goods and/or services supplied by the Company which gave rise to that claim. 
    1. Notwithstanding any other provision of these Terms or any other rights of the Company:
      1. where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all their joint and/or several interest in the said land, realty or any other asset to the Company or the Company’s nominee to secure all amounts owing on written demand for such amounts owing being made to the Customer and/or Guarantor (if any).  The Customer and/or the Guarantor acknowledge and agree that the Company (or the Company’s nominee) shall be entitled to lodge where appropriate a caveat in support of the mortgage, such caveat shall be released once all amounts owing have been paid.
      2. should the Company elect to proceed in any manner in accordance with this clause 10, the Customer and/or the Guarantor (if any) shall indemnify the Company from and against all the Company’s costs and disbursements including legal costs on a solicitor and own client basis.
      3. the Customer and/or the Guarantor (if any) agree to irrevocably nominate, constitute and appoint the Company or the Company’s nominee as the Customer’s and/or the Guarantor’s true and lawful attorney to perform all acts and execute such documents as are necessary to give effect to the provisions of this clause 10.
    1. The Customer indemnifies the Company, its officers, employees and agents against any claims or losses incurred by the Company arising out of or in connection with the supply of goods (other than by reason of the Company’s negligence).
  12. PRIVACY ACT 2020
    1. For the purposes of compliance with the Privacy Act 2020, the Customer authorises the Company or its agents to access, collect, retain, store securely, and use any necessary personal information provided by the Customer to the Company for the following purposes: 
      1. to determine eligibility and terms for the provision of credit to the Customer; 
      2. supplying goods and/or services to the Customer; 
      3. enforcing debts and other legal obligations owing to the Company by the Customer; and/or 
      4. disclosure to third parties associated with any of the foregoing purposes. 
    2. The Customer has the right to request the Company provide details of all personal information about the Customer retained by the Company and the Customer has the right to request the Company to amend any incorrect information about the Customer held by the Company.  
    1. These Terms are governed by and construed in accordance with New Zealand law, and the parties hereby submit to the nonexclusive jurisdiction of the courts of New Zealand. 
    2. The failure or delay of the Company to enforce any provision of these Terms shall not be treated as a waiver of any provision and shall not affect the Company’s rights to subsequently enforce any provision. 
    3. The rights, powers and remedies provided in these Terms are cumulative and do not prejudice or exclude any rights, powers or remedies provided by law. 
    4. If any provision of these Terms is, or becomes invalid or unenforceable, that invalidity or unenforceability shall not affect the provisions of these Terms, all of which shall remain in full force and effect to the extent permitted by law, subject to any modification made necessary by the deletion of the invalid or unenforceable provision in these Terms. 
    5. The Customer warrants that: 
      1. It is not insolvent and that these Terms create valid and binding legal obligations on it; and 
      2. The person(s) providing instructions to, communicating with, requesting the provision of goods and/or services from the Company and accepting these Terms and/or any quote, for or on behalf of the Customer is duly authorised and/or has the authority to do such things and to grant the security interest created by these Terms on the Customer’s behalf so as to bind the Customer.  
    1. The Company shall not be deemed to have waived or varied any provision of these Terms or any right or remedy which it may have under these Terms or at law or in equity or otherwise unless the waiver or variation is in writing signed by the Company or an authorised person on its behalf.  No waiver of a breach shall be deemed to be a waiver of any other breach or any further breach. 
  15. NOTICE 
    1. Any notice or other document required to be in writing by virtue of these Terms shall only be effective on the part of the Company if signed by a director of the Company. 
    2. Once printed this document is considered an uncontrolled version.