Terms and Conditions

  1. DEFINITIONS
In this Agreement, unless the context indicates otherwise: Agreement means the agreement for the supply of Products by Laminata to the Purchaser, formed by the signing by Laminata and the Purchaser of a Purchase Order for the Products;
Business Day means any day excluding Saturdays, Sundays and statutory public holidays in Auckland, New Zealand;
Consignment Products means any Products in respect of which the Purchase Order indicates that such Products are supplied on a consignment basis;
Default Rate means Laminata's standard overdraft rate with its bank, plus 5%;
Deliver has the meaning given to that term in clause 4.1 and Delivery and Delivered have corresponding meanings;
Delivery Instructions means, in respect of any specific Products, the delivery instructions specified in the corresponding Purchase Order;
GST means goods and services tax in terms of:
  1. A New Tax System (Goods & Services Tax) Act 1999 (Cth) if the Purchase Order requires payment of the Product Price in Australian Dollars; or
  2. the Goods and Services Tax Act 1985 if the Purchase Order requires payment of the Product Price in New Zealand Dollars,
at the rate prevailing from time to time;
Guarantor means the person (if any) named as such in the Purchase Order (subject to that person having signed the Purchase Order in their capacity as guarantor);
Insolvency Event means, in respect of a party to this Agreement, that it is in liquidation; is in receivership or statutory management; is in administration; has made any assignment to, or has entered into any arrangement for the benefit of, its creditors generally (other than for the purposes of a solvent restructuring which has previously been approved in writing by the other party, such approval not to be unreasonably withheld or delayed); or is the subject of any analogous event under the laws of any relevant jurisdiction;
Intellectual Property means all forms of registered and unregistered intellectual property, which may subsist anywhere in the world;
PMSI means a purchase money security interest as defined in the PPSA;
PPSA means the Personal Property Securities Act 1999;
Products means the products which are described as such in the Purchase Order;
Product Price means in respect of any Product, the corresponding price set out in the Purchase Order;
Product Recall means the withdrawal from the market, and the recovery from any third party premises, of any Product which is no longer saleable;
Purchase Order means a purchase order which is in Laminata's standard form or is otherwise acceptable to Laminata, with all variables completed and signed by Laminata and the Purchaser;
Purchase Price means the total amount payable for the Products, as stated in the Purchase Order;
Specifications means, in respect of any Product, the corresponding specifications set out in the Purchase Order; and
Warranty Period means, in respect of any Product, a period of [how long?] following the date on which that Product is Delivered.
 
  1. SUPPLY of products
Once a Purchase Order has been signed by both parties, Laminata will supply the Products to the Purchaser, as set out in the Purchase Order, in accordance with this Agreement.  If there is any inconsistency between the Purchase Order and any other provision of this Agreement, the Purchase Order will prevail.
 
  1. PRICE / INVOICING / PAYMENT
    1. Invoicing:  Subject to clause 5, Laminata will invoice the Purchaser for the Purchase Price at the time at which, or as soon as reasonably possible after, the Products are Delivered to the Purchaser.  The invoice must be a valid GST invoice and must set out the Purchase Order number.
    2. Payment:  Any invoice issued in accordance with clause 3.1 will be payable by the Purchaser without set-off or deduction, on or before the later of:
      1. the last Business Day of the month in which the invoice is received by the Purchaser; or
      2. the date which is 10 Business Days after the invoice is received by the Purchaser,
whichever is later.
  1. Late Payment:  The Purchaser will pay to Laminata default interest at the Default Rate on any amount which is overdue for payment under this Agreement.
  2. PMSI: Laminata can register a PMSI over any Product supplied under this Agreement until it has received full payment for that Product.
  3. Currency:  Any amount payable by the Purchaser for any Product is payable in the currency in which the Purchase Price is set out in the Purchase Order.
 
  1. DELIVERY / TITLE / RISK
    1. Delivery:  Laminata will deliver the Products to the Purchaser in accordance with the Delivery Instructions specified in the Purchase Order (referred to in this Agreement as Delivery).
    2. Title and Risk: Subject to clause 5, title to and risk in the Products will pass from Laminata to the Purchaser upon Delivery of the Products.
 
  1. CONSIGNMENT PRODUCTS
The following terms apply to Consignment Products (notwithstanding any contrary provision in this Agreement):
  1. Use of Product: In this clause 5, references to any Product being Used include any sale by the Purchaser of that Product to a third party, any loss or destruction of, or any damage to, any Product while in the possession or under the control of the Purchaser, and any use by the Purchaser of that Product for display or demonstration purposes.
  2. Notification of Use and Invoicing/Payment: The Purchaser must notify Laminata by email of any Use by it of any Product, within 5 Business Days after such Use occurs. As soon as reasonably possible after such notification, Laminata will invoice the Purchaser for the Purchase Price of the corresponding Used Products. This invoice will be payable within 10 Business Days following its receipt by the Purchaser.
  3. Title: Title to any Consignment Products passes from Laminata to the Purchaser at the time at which those Products are Used (and, until that time, title remains with Laminata).
  4. Risk: All Consignment Products will, from the time of their Delivery to the time at which they are either Used or are returned, undamaged, to Laminata, will be held at the risk of the Purchaser and must be insured by the Purchaser for their full replacement value (equivalent to the Purchase Price for those Products).
  5. Purchaser's Obligations: The Purchaser must, until title passes to the Purchaser under clause 5.3:
    1. clearly designate all Consignment Products as Laminata's property;
    2. keep accurate records of the physical location and ownership of all Consignment Products; and
    3. maintain the Consignment Products in the condition in which they are Delivered, at a secure location.
  6. Audit:  Laminata is entitled to audit at any time the Consignment Products held by or on behalf of the Purchaser, and the Purchaser's records under clause 5.5(b). The Purchaser agrees to co-operate with Laminata in relation to any such audits, including allowing representatives of Laminata to enter the Purchaser's premises.
 
  1. INSPECTION / ACCEPTANCE / REJECTION
    1. Inspection:  Within a period of 5 Business Days following Delivery (Inspection Period), the Purchaser will perform a visual inspection of a sample of the Products which have been Delivered, to identify any visible defects (including any failure to Deliver the quantity of Products required under the Purchase Order).
    2. Rejection/Acceptance:  
      1. The Purchaser may, during the Inspection Period, give written notice to Laminata of any defect in the Products Delivered to it (Defect Notice).
      2. Upon receipt of a Defect Notice, Laminata will remedy the defect at the earliest available opportunity.
      3. Except to the extent set out in a Defect Notice received by Laminata within the Inspection Period, Laminata will be deemed, at the expiry of the Inspection Period, to have complied with its obligation to supply and Deliver the Products set out in the relevant Purchase Order (but this does not relieve Laminata from any breach of a warranty given by Laminata under this Agreement, where that breach is unable to be detected by the visual inspection required under clause 6.1).
 
  1. PRODUCT DEFECTS/RECALLS
    1. Notice:  If either party becomes aware of any failure of any Product, Delivered to the Purchaser under this Agreement, to meet the Specifications for that Product (except where this is due to an act or omission of the Purchaser), then that party must immediately notify the other party in writing, giving details of the failure.
    2. Recalls:  If a notice is given under clause 7.1, the parties will promptly discuss what further steps (if any) are appropriate to take in the circumstances, including whether any Product Recall should be initiated.  Product Recalls will only be undertaken where required by a regulatory authority or where authorised by Laminata.  If a Product Recall is initiated:
      1. Laminata will immediately notify the Purchaser which Products have been or are intended to be recalled;
      2. the Purchaser must comply with Laminata's reasonable requests and directions relating to the Product Recall;
      3. each party must use reasonable efforts to mitigate both the costs of the Product Recall and any resulting damage to the reputation of each party; and
      4. the Parties must consult with each other on a regular basis during the course of the Product Recall.
    3. Costs:  The costs of carrying out a Product Recall will be borne by Laminata (including the cost of supplying replacement Products to the Purchaser, or refunding the Purchase Price paid by the Purchaser for those Products, and any out-of-pocket expenses reasonably incurred by the Purchaser in relation to the Product Recall).
 
  1. WARRANTIES
    1. Laminata Warranties:  Laminata warrants to the Purchaser that:
      1. the Products will meet or exceed the Specifications at all times during the Warranty Period, except as a result of any:
        1. alteration to the Products following their Delivery;
        2. improper storage of the Products by or on behalf of the Purchaser; or
        3. use of the Products for any purpose for which they are not intended to be used (whether or not this is stated in the Specifications); and
      2. clear title to the Products will pass to the Purchaser when those Products are Delivered or Consignment Products are Used (in accordance with clause 5).
The warranties given under this clause are separate from any end user warranty given by Laminata in respect of any Product (as set out on the Product or its packaging). The Purchase must not remove or alter any such end user warranty.
  1. Purchaser Warranties:  The Purchaser must not make any representations or give any warranties to any third party about the Products (including on the Purchaser's website) that are inconsistent with any such end user warranty or with the Specifications of any Product description provided to the Purchaser by Laminata.
  2. Exclusions:  Other than as expressly provided for in this Agreement, all warranties and guarantees, whether express or implied, by statute or otherwise, in relation to the Products, are expressly excluded. The parties agree that, to the extent permitted by law:
    1. sections 9, 12A, and 13 of the Fair Trading Act 1986;
    2. the provisions of the Consumer Guarantees Act 1993;
    3. the provisions of the Sale of Goods Act 1908; and
    4. the United Nations Convention on Contracts for the International Sales of Goods,
will not apply to any Products supplied under this Agreement.
 
  1. GUARANTEE
    1. Guarantor's Obligations: The Guarantor unconditionally and irrevocably guarantees to Laminata the due and punctual payment by the Purchaser of any amount which the Purchaser is required to pay under the Agreement and the due and proper performance by the Purchaser of all of its obligations under this Agreement.
    2. Guarantor's Liability: The Guarantor's liability under this Agreement constitutes a principal obligation of the Guarantor. This liability is continuing and will not be released, or in any way affected in a manner prejudicial to Laminata, by anything else that occurs. This guarantee may be enforced against the Guarantor without first having recourse to, or without first taking any action against, the Purchaser.
    3. Joint Liability: If more than one person is named as the Guarantor, their liability is joint and several.
 
  1. INTELLECTUAL PROPERTY
    1. Ownership of Intellectual Property: The Purchaser agrees that, as between the Purchaser and Laminata, Laminata owns all of the Intellectual Property rights (whether registered or unregistered) relating to the Products (and the Purchaser will not make any claim to the contrary).
    2. Licence to Use:  Laminata grants the Purchaser a non-exclusive licence to use Laminata's Intellectual Property relating to the Products for the purposes of promoting the Products to buyers and end users (including on the Purchaser's website) subject to any conditions or restrictions notified by Laminata to the Purchaser.
 
  1. LIABILITY
    1. Cap:  Subject to clause 7.3, the maximum liability of Laminata to the Purchaser in relation to any Products supplied or ordered under this Agreement will be limited at Laminata's sole option to:
      1. replacement of the Products or the supply of equivalent Products; or
      2. the refund of any amount actually paid by the Purchaser for the Products.
    2. Exclusions: Nothing expressed or implied in this Agreement will confer any liability on Laminata for any consequential, indirect or special loss, damage or expense suffered or incurred by the Purchaser as a result of any breach by Laminata of any of its obligations under this Agreement.
 
  1. FORCE MAJEURE
Neither party (First Party) will be liable for any act, omission or failure by it under this Agreement if that act, omission, or failure results directly from an event or circumstances beyond the reasonable control of the First Party, provided that:
  1. Notification of Event/Circumstances: whenever the First Party becomes aware that such a result has occurred or is likely to occur, the First Party will promptly notify the other party by written notice;
  2. Best Endeavours to Perform Obligations: each party will continue to use its best endeavours to perform its obligations as required under this Agreement; and
  3. Costs: neither party will be deemed to have accepted any liability to pay or share any extra costs which may be incurred by the other party in complying with this clause or otherwise resulting from such act, omission, or failure.
 
  1. TERMINATION
    1. Termination for Cause:  Either party may terminate this Agreement, with immediate effect, by written notice to the other party:
      1. where the other party fails to remedy a material breach by it of this Agreement within the period (being at least 10 Business Days) specified by written notice from the other party; or
      2. where the other party suffers an Insolvency Event.
    2. Consequences of Termination:  On termination of this Agreement, Laminata may:
      1. elect to cancel, in whole or in part, any Purchase Order under which the relevant Products have not been Delivered as at the time of termination;
      2. enter into any premises where any Consignment Products (title to which is held by Laminata) are located and repossess such Products; and
      3. require that all monies invoiced to the Purchaser under this Agreement become immediately due and payable.
 
  1. DISPUTE RESOLUTION
    1. Escalation:  Where there is a dispute between the parties in relation to this Agreement, a dispute notice may be issued by one party to the other party.  Where the dispute cannot be resolved within 10 Business Days, the dispute will be escalated to senior representatives of the parties.
    2. Mediation:  Where the dispute has still not been resolved by the senior representatives within a further 10 Business Days, the dispute will be referred to mediation.
    3. Arbitration:  Where the parties cannot resolve the dispute through mediation, the dispute will be referred to arbitration to take place in Auckland, New Zealand in accordance with New Zealand law.
    4. No Proceedings:  Neither party is entitled to issue any legal proceedings in relation to any such dispute (except for the purpose of seeking interim or interlocutory relief).
 
  1. NOTICES
    1. Method of Delivery:  Any written notice required under this Agreement must be signed by a duly authorised representative of the party giving that notice and (without limiting the means by which notice may be given under this Agreement) will be deemed validly given if:
      1. delivered by hand to the intended recipient's address set out in this Agreement; or
      2. sent by email to the intended recipient's email address set out in this Agreement, and if the recipient acknowledges receipt (whether by way of an automated message or otherwise).
    2. Time of Delivery:  Any notice transmitted by email or delivered after 5.00 pm on a Business Day, or at any time on a non Business Day, will be deemed received at 9.00 am on the next Business Day (being, in each case, the time of day at the intended place of receipt of that notice).
 
  1. COLLECTION AND USE OF INFORMATION
    1. Authorisation: The Purchaser (and, if applicable, the Guarantor) authorises Laminata to:
      1. collect, retain and use any information provided by the Purchaser (and, if applicable, the Guarantor) to Laminata for the purpose of supplying Products to the Purchaser, enforcing any rights under this Agreement, marketing any Products supplied by Laminata, debt collection or assessing the Purchaser's (and, if applicable, the Guarantor's) credit worthiness; and
      2. disclose any information held about the Purchaser (and, if applicable, the Guarantor) to any persons for the purposes set out in clause 16.1(a). The Purchaser (and, if applicable, the Guarantor) acknowledges the Purchaser's (and, if applicable, the Guarantor's) information provided to a credit reporting agency, including any payment default information, may be made available to other persons who use the credit reporting agency's services.
    2. Where Purchaser/ Guarantor is an Individual: Where the Purchaser (and, if applicable, the Guarantor) is an individual, the authorisations given under clause 15.1 are authorisations or consents for the purposes of the Privacy Act 1993 and the Credit Reporting Privacy Code 2004.
    3. Access To/ Correction of Information:  The Purchaser (and, if applicable, the Guarantor) has a right of access to and correction of any personal information held by Laminata in relation to the Purchaser (or, if applicable, the Guarantor).
 
  1. GENERAL
    1. Amendment:  No amendment to this Agreement will be effective unless it is in writing and signed by a duly authorised representative of each party.
    2. Assignment:  The Purchaser must not assign or otherwise transfer any of its rights or obligations under this Agreement to any other person without Laminata's prior written consent.  Consent must not be unreasonably withheld or delayed.
    3. Copies:  Any copy of this Agreement that is received via email in PDF or other document reproduction format (including any copy of any document evidencing a party's signature to this Agreement) may be relied on by any party as though it were an original copy of this Agreement.  
    4. Costs:  Unless otherwise stated in this Agreement, each party will bear its own costs and expenses incurred in connection with the negotiation, preparation and implementation of this Agreement.
    5. Entire Agreement:  This Agreement (including the Purchase Orders) records the entire understanding and agreement of the parties relating to the matters dealt with in this Agreement.  This Agreement supersedes all previous understandings or agreements (whether written, oral or both) between the parties relating to these matters.
    6. Further Assurances:  Each party will do all things and execute all documents reasonably required to give effect to the provisions and intent of this Agreement.
    7. Incoterms: References to any Incoterms in the Delivery Instructions are to those terms as defined in the 2010 edition of Incoterms, published by the International Chamber of Commerce (Incoterms).
    8. Partial Invalidity/Severance:  If any provision of this Agreement is or becomes invalid or unenforceable, that provision will be deemed deleted from this Agreement.  The invalidity or unenforceability of that provision will not affect the other provisions of this Agreement, all of which will remain in full force and effect to the extent permitted by law, subject to any modifications made necessary by the deletion of the invalid or unenforceable provision.
    9. Governing Law and Jurisdiction:  This Agreement is governed by the laws of New Zealand. The parties submit to the exclusive jurisdiction of the New Zealand courts in respect of all matters relating to this Agreement.
    10. Remedies:  The rights, powers and remedies provided in this Agreement are cumulative and are in addition to any rights, powers or remedies provided by law (except to the extent to which these are expressly excluded in this Agreement).
    11. Waiver:  Any waiver by a party of any of its rights or remedies under this Agreement will be effective only if it is recorded in writing and signed by a duly authorised representative of that party.  If the waiver relates to a breach of any provision of this Agreement, this will not (unless stated otherwise) operate as a waiver of any other breach of that provision.  No waiver of any breach, or failure to enforce any provision, of this Agreement at any time by either party will in any way affect limit or waive that party's right to subsequently require strict compliance with this Agreement.