| 1. |
Orders |
| 1.1 |
Karcher reserves the right to accept or decline, in whole or in part, any order placed by the Purchaser. In such instances, Karcher will refund the Contract Price to the Purchaser by depositing the full amount onto the Purchaser's credit card within one month of the initial purchase.
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| 1.2 |
The Purchaser will pay all relevant freight and delivery charges in respect of delivery of the Goods. This price will be added to the Contract Price prior to purchase.
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| 1.3 |
The website will use a three light system: |
| 1.3.1 |
A green light signals that the item is in stock and available for purchase. |
| 1.3.2 |
An orange light signals that an item can still be purchased but that a delay may exist between purchase and delivery (subject to various factors including the item not currently being in stock). |
| 1.3.3 |
A red light signals that an item is not currently in stock but is however, still available for purchase. |
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If an order relates to any Goods showing an orange or red light, Karcher will supply such Goods when stock becomes available unless the Purchaser specifically instructs otherwise before such Goods are dispatched to the Purchaser.
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| 1.4 |
Subject to clause 7 and stock availability, Karcher will endeavour to dispatch orders received within two Business Days of receiving the order. |
| 1.5 |
The Purchaser must obtain all necessary licences and comply with all applicable laws and regulations relating to the supply of the Goods. |
| 2. |
Export Prohibition
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| 2.1 |
Unless otherwise agreed in writing by Karcher, the Goods are for sale and use only in New Zealand and no Goods will be delivered to any address outside of New Zealand. Without limiting the foregoing, the Purchaser must not at any time, directly or indirectly, sell, use or export the Goods outside New Zealand or sell or give Goods to a person who the Purchaser knows, or should reasonably know, intends to sell, transfer or distribute any of the Goods to any person without requiring such person to be bound by this export restriction. Any breach of this clause will preclude the Purchaser from purchasing any further Goods from Karcher, until such time as Karcher is satisfied, in its sole discretion, that the Purchaser will not further breach this clause. |
| 2.2 |
Should Karcher identify any person who is engaged in the exporting of Goods out of New Zealand, Karcher may preclude the Purchaser from supplying any further Goods to the person by giving written notice to the Purchaser. |
| 2.3 |
Any person who has had their approval to purchase Goods revoked by Karcher may apply for reinstatement of approval to purchase the Goods, given conditions issued by Karcher are met. |
| 3. |
Delivery |
| 3.1 |
Subject to clause 3.2, all Goods will be delivered by the carrier nominated by Karcher at Karcher's absolute discretion to the place nominated by the Purchaser. |
| 3.2 |
Delivery shall be made by the route and method Karcher considers appropriate to the place indicated on the order form or, if no place of delivery is specified, delivery shall be made at Karcher's premises and shall take place at the time when the Goods are made available for despatch at Karcher's premises. If the Purchaser fails or refuses, or indicates to Karcher that it will fail or refuse, to take or accept delivery, then the Goods shall be deemed to have been delivered when Karcher was willing to deliver them. |
| 3.3 |
Any request by the Purchaser for urgent despatch or any request by the Purchaser for a more expensive delivery method or route, will be at Karcher's absolute discretion. Karcher reserves the right to charge an additional fee of an amount determined by Karcher at its sole discretion to meet that delivery request. |
| 3.4 |
Non-receipt of any of the Goods must be notified within seven days of the date of purchase, otherwise credit for such Goods will not be allowed. |
| 3.5 |
Karcher reserves the right to deliver the Goods by instalments and each instalment shall be deemed to be a Contract. Should Karcher fail to deliver or make defective delivery of one or more instalments this shall not entitle the Purchaser to vary its initial order.
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| 3.6 |
Without prejudice to any other rights and remedies which it may have, Karcher may charge storage and transportation expenses if the Purchaser fails or refuses to take or accept delivery or indicates to Karcher that it will fail or refuse to take or accept delivery at the time specified in the Contract or at any other times that Karcher is able to deliver the Goods. |
| 4. |
Price |
| 4.1 |
Unless otherwise agreed in writing by Karcher, payment shall be made by the Purchaser at the time of purchasing the Goods on the Website using a visa or mastercard. For the avoidance of doubt, payment will be processed by Karcher and/or the relevant credit card payment solution provider at the time of purchase of the Goods. |
| 4.2 | All prices are in New Zealand dollars and are subject to change by Karcher without notice to the Purchaser. |
| 4.3 | Karcher shall only be responsible for compliance with regulations, bylaws, codes and standards specified in the Contract and Karcher shall be under no liability whatsoever to the Purchaser for any failure to meet any other regulations, bylaws, codes and standards. In the event of there being any changes in any regulations, bylaws, codes or standards with which Karcher is obliged to comply after the date of the Contract, then any additional costs in meeting such changes shall be to the account of the Purchaser. |
| 4.4 | Karcher may at various times offer promotions which carry special conditions for qualification. These may include, among other things, quantity of purchase, time periods or the quoting of special codes when ordering. If the conditions are not satisfied, normal pricing will apply. |
| 4.5 | Any additional payments due by the Purchaser pursuant to any other provisions of the Contract shall be paid at the time provided in the Contract or, if no time is provided, within seven days of payment being demanded in writing by Karcher. |
| 5. | Returns |
| 5.1 | The terms of this section 6 shall apply wherever the Consumer Guarantees Act 1993 or the Sale of Goods Act 1908 do not apply to the Contract, or where the terms are not inconsistent with those Acts. |
| 5.2 | Subject to clauses 5.3 and 5.4, and provided the Purchaser is not in default under these terms and conditions of sale, Goods will only be accepted for return (for credit or for replacement) if they come under any of the following categories:
(a)
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Goods which Karcher is satisfied were damaged in transit between the distribution warehouse used to store Karcher's products and the place of
delivery specified by the Purchaser. In such instances, Karcher must be notified by the Purchaser no later than seven days after receipt of the
consignment that the Goods have been damaged, and the Purchaser should also indicate on the carrier's consignment docket that Goods are 'damaged'. |
| (b) |
Goods supplied which were not ordered. |
(c)
| Goods supplied which, to the satisfaction of Karcher, are rendered unsaleable by a manufacturing or packaging fault. |
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| 5.3 | The following items will not be accepted for return (either for credit or replacement) except at Karcher's sole discretion:
(a)
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Goods damaged on the Purchaser's premises.
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(b)
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Goods sold on a non-return basis.
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(c)
| Goods from a line of stock that has been deleted.
| (d)
| Goods that have not been purchased directly from Karcher.
| (e)
| Goods involved in a fire sale or a bankruptcy sale.
| (f)
| Damaged Goods, except as specified in clause 5.2(a) above.
| (g)
| Goods that have been incorrectly ordered by the Purchaser or which are no longer required by the Purchaser.
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| 5.4 | The Purchaser agrees to pay any and all fees (including freight charges) associated with the return of any Goods which Karcher in its sole discretion accepts for return. |
| 5.5 | All Goods being returned to Karcher must be sent in accordance with the procedure for the return of Goods in clauses 5.6 and 5.7. Karcher's sales representatives are not authorised to approve Goods for return. |
| 5.6 | Any requests for return (either for credit or replacement) must be made within seven days of receipt of the Goods except in respect of Goods referred to in clauses 5.2(a). All Goods returned to Karcher must be accompanied by a copy of the packing slip. |
| 5.7 | In respect of Goods to be returned, the Purchaser must comply with the following procedures:
(a)
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Contact Karcher within seven days of receipt of the Goods to advise of the fact that the Goods will be returned and the reason for return.
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(b)
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Pack the Goods to be returned securely and attach a return label to the largest side of the package to be returned. Ensure the package is addressed correctly. All returns should be delivered to: |
(c)
| Arrange and pay for the transportation of the Goods except where Karcher has arranged to collect the Goods from the Purchaser.
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| 5.8 | Karcher reserves the right to dispose of, without recourse, any Goods which are returned and not accompanied by the matters, or in accordance with the procedure, specified in clauses 5.6 and 5.7. |
| 5.9 | Once received, Karcher will contact the Purchaser to advise whether the Goods will be accepted for credit or replacement or to obtain further information from the Purchaser ie evidence of handling procedures. |
| 5.10 | Subject to section 8 of these terms and conditions, Karcher reserves the right in its absolute discretion to decline any request for return. |
| 6. | Risk and Insurance
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| 6.1 | The risk in Goods purchased shall, unless otherwise agreed in writing, pass to the Purchaser upon delivery to the Purchaser or to its agent or to a carrier commissioned by the Purchaser. |
| 7. | Delay |
| 7.1 | If any time for the delivery of the Goods or completion of the Contract or any part thereof shall be stated in the Contract, such time shall be approximate only and shall not be deemed to be of the essence of the Contract. |
| 7.2 | Karcher shall not be liable for failure to process orders or failing to deliver the Goods or for any delay in delivery of the Goods where such failure or delay is caused by a Force Majeure event or any cause beyond Karcher's reasonable control. |
| 7.3 | If the manufacture, supply or delivery of the Goods is delayed by reason of or as a result of any act, omission, default or request by or on behalf of the Purchaser, Karcher may, without prejudice to its other rights and remedies, require payment by the Purchaser of such portion of the Contract Price as represents the extent to which Karcher has performed the Contract or carried out work required by the Contract up to the date such payment is required together with any expenses or additional costs incurred by Karcher as a result of such delay. In the event of such delay continuing beyond a reasonable time, Karcher may, without prejudice to its other remedies, terminate the Contract.
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| 8. | Guarantees |
| 8.1 | Where the Consumer Guarantees Act 1993 applies to the Contract:
(a)
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if the Goods are acquired by the Purchaser for business purposes, the Purchaser agrees that the Consumer Guarantees Act 1993 does not apply;
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(b)
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if the Goods are not acquired by the Purchaser for business purposes, Karcher reserves the right to replace any Goods which fail to comply with any guarantee contained in the Consumer Guarantees Act 1993; and
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| (c) | should Karcher elect to repair any defective Goods, such repair shall be effected at such place as Karcher may specify and the Purchaser shall be responsible for delivery of the defective Goods to and from the place or places so specified. |
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| 8.2 | The Purchaser acknowledges that Karcher does not provide any Express Guarantees (as defined in the Consumer Guarantees Act 1993) other than those expressly confirmed by Karcher |
| 8.3 | The Purchaser agrees to indemnify Karcher against any liability or cost incurred by Karcher under the Consumer Guarantees Act 1993 as a result of any breach by the Purchaser of the obligations contained in this clause 8. |
| 8.4 | The following terms apply wherever the Consumer Guarantees Act 1993 does not apply to the 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 shall at Karcher's discretion be replaced in accordance with section 6, or the price refunded. |
| (b) |
Karcher accepts no liability to repair, replace or refund any defective Goods:
| (i) |
if any attempt to repair the defective Goods is made by any person or persons not authorised by Karcher to effect such repairs; |
| (ii) |
if the defective Goods have been modified without the approval of Karcher; or |
| (iii) | if the defective Goods have not been stored, maintained, installed or operated in a proper manner. |
Karcher shall not be obliged to carry out repair work or to replace or refund any defective Goods for so long as the Purchaser is in default in relation to any payment or in the performance of any obligation under the Contract.
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(c)
| If the Goods or any component or components thereof are not manufactured by Karcher, then the warranty contained in 8.4(a) shall not apply to such Goods, component or components as are not manufactured by Karcher and no warranties are given by Karcher in respect of such Goods, component or components. In the case where the manufacturer or supplier of any such Goods, component or components provides any warranty, then Karcher (to the extent that it is able to do so) shall make such warranty available to the Purchaser.
| (d)
| Other than as warranted in clause 9.1, Karcher accepts no liability for any Claim by the Purchaser or any other person, including without limitation any Claim relating to or arising from:
(i)
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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
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(ii)
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any representations, warranties, conditions or agreement made by any agent or representative, which are not expressly confirmed by Karcher in writing,
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and the Purchaser agrees to indemnify Karcher against any such Claim by any other person.
| (e)
| Where the Contract provides for any testing or commissioning procedure or any other acceptance procedure in respect of the Goods, no claim shall be made by the Purchaser if the Goods fail to comply with the requirements of the Contract at any time after the successful completion of such testing, commissioning or acceptance procedures, subject however to the warranty in respect of defective Goods contained in clause 8.4(a).
| (f)
| In any event, Karcher's liability under any such Claim, or for any breach of those terms and conditions or any Contract shall not exceed the Contract Price of the Goods.
| (g)
| No Claim shall be brought by the Purchaser against Karcher unless brought within one year from the date of delivery of the Goods to the Purchaser or from the date of the alleged breach of the Contract whichever is earlier.
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| 8.5 | 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 and conditions of sale are to be modified to the extent necessary to give effect to that intention. |
| 8.6 | The implied conditions and warranties contained in the Sale of Goods Act 1908 are excluded to the maximum extent permitted by law. |
| 9. | Warranties |
| 9.1 | Karcher warrants that any Goods supplied by it, will on the date of dispatch be of merchantable quality and fit for the purpose notified by the Purchaser to Karcher. All other warranties, descriptions, representations and conditions whether express or implied and whether statutory or otherwise are expressly excluded and Karcher shall not be liable in any way whatsoever to any person, whether in tort or contract, for any indirect, special or consequential loss or damage. |
| 10. | Information |
| 10.1 | The Purchaser authorises Karcher to:
| (a) |
collect information about the Purchaser from any person; |
| (b) |
use any information it holds, now or in the future, about the Purchaser; and |
| (c) | disclose information about the Purchaser to any person; |
for any purpose associated with Karcher's business, including for the purpose of marketing. The Purchaser authorises any third party to release any information about the Purchaser to Karcher. |
| 10.2 | Information collected from, or about the Purchaser, will be held at [insert address where information will be held]. |
| 10.3 | If the Purchaser is an individual, the Purchaser may be entitled under the Privacy Act 1993 to request access to and correction of any personal information which Karcher holds about the Purchaser. |
| 11. | Default |
| 11.1 | If an Event of Default occurs, Karcher shall have the right, without prejudice to any other remedies:
| (a) |
to require the Purchaser not to resell or part with possession of any Goods in the possession of Karcher until the Purchaser has paid in full all sums owed by it to Karcher; |
| (b) |
to withhold delivery of any undelivered Goods and stop any Goods in transit; |
| (c) | to suspend or terminate the Contract;
| (d)
| to repossess Goods without being responsible for any damage thereby caused, and the Purchaser shall be liable for all the costs and expenses in relation to any such repossession;
| (e)
| to resell any or all of the Goods or otherwise dispose of them as it sees fit, and any moneys payable shall immediately become due and payable notwithstanding that the due date has not arisen.
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| 11.2 | In any of the foregoing events, Karcher also reserves the right, as the agent of the Purchaser, to enter upon the premises where any of the Goods are situated during reasonable business hours and subject to prior consultation with the Purchaser and take possession of and remove the same without being responsible for any damage; thereby caused, and Karcher may resell any or all of those Goods and apply the proceeds in or towards payment of the Contract Price and all other moneys owing to Karcher by the Purchaser. All costs and expenses of or incurred by Karcher as a result of any such action together with transportation and storage charges shall be payable by the Purchaser upon demand. Any suspension of the Contract by Karcher shall not prevent it terminating the Contract during the period of suspension. |
| 12. | Intellectual Property
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| 12.1 | The contents of this website is the intellectual property of Karcher and all rights are reserved. Documents published by Karcher may not be copied, reproduced or otherwise redistributed.
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| 12.2 | The brand names, logos and related tag lines appearing on this website are trade marks of Karcher. The use or misuse of these trade marks or any other materials, except as permitted in these terms and conditions, is expressly prohibited. |
| 13. | Contract |
13.1
| The Contract forms the basis on which Karcher supplies and sells the Goods to the Purchaser. Each such supply and sale shall be effected pursuant to the terms of the Contract (unless in any specific case agreed otherwise in writing). Any invoice or other document evidencing or describing any Goods is incorporated into and forms part of the Contract. |
| 14. | Conflict
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| 14.1 | These terms and conditions of sale are paramount, and, to the extent that there is any conflict between any provision of them and any invoice or other document evidencing or describing any Goods, the terms and conditions of sale will prevail. Further, if there is any other document or arrangement which conflicts with the Contract, the Contract shall prevail. However, nothing in this clause shall be taken to affect any special terms or arrangements which are specifically agreed to in writing between Karcher and the Purchaser and which are intended to take effect notwithstanding anything else contained in the Contract.
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15.
| General |
| 15.1 | Any terms or conditions put forward by the Purchaser, whether in a purchase order or otherwise, shall not be binding on Karcher insofar as they purport to amend, annul or augment any of these terms and conditions of sale unless specifically agreed in writing by Karcher.
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16.
| Waiver or variation
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16.1
| If Karcher exercises or fails to exercise any right or remedy available to it, this shall not prejudice Karcher's rights in exercising that or any other right or remedy.
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16.2
| Karcher reserves the right to vary or add to these terms and conditions of sale at any time without notice.
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17.
| No Assignment or on sale
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17.1
| The Purchaser must not transfer or assign its rights under the Contract to anyone else without Karcher's prior consent in writing.
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17.2
| In addition, the Purchaser must not on sell the Goods to anyone else without Karcher's prior consent in writing.
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18.
| Law and jurisdiction
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18.1
| The Contract shall in all aspects be deemed to be a Contract made in New Zealand and the construction, validity and performance of the Contract shall be governed by New Zealand law. The exclusive jurisdiction of the New Zealand courts to entertain all claims and actions arising out of the Contract is accepted and acknowledged by the Purchaser provided however that Karcher shall be entitled to commence any action arising out of or in respect of the Contract in any other court.
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19.
| Interpretation
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19.1
| 'Business Day' means a day other than Saturday or Sunday on which all banks are open for business generally in Auckland, New Zealand.
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19.2
| 'Contract' means these terms and conditions of sale themselves together with any and every invoice or other document evidencing or describing, whether by item or kind or otherwise, any Goods.
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19.3
| 'Contract Price' means the price of the Goods as set out in Karcher's invoice inclusive of GST.
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19.4
| 'Claim' includes any claim:
(a)
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for loss of profits; or
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(b)
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for any consequential, indirect or special loss, damage or injury of any kind suffered by any person arising directly or indirectly from:
(i)
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any breach of Karcher's obligations under the Contract; or
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(ii)
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any negligence, misrepresentation or other act or omission by Karcher or its employees, agents or contractors; or
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(c)
| for compensation, demand, remedy, liability or action.
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19.5
| 'Event of Default' means an event where:
(a)
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the Purchaser fails to comply with the terms of the Contract or any other contract with Karcher; or
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(b)
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the Purchaser commits an act of bankruptcy; or
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(c)
| the Purchaser enters into any composition or arrangement with its creditors; or
| (d)
| if the Purchaser is a company:
(i)
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the Purchaser does anything which would make it liable to be put into liquidation; or
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(ii)
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any steps are taken to put the Purchaser into liquidation; or
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(iii)
| a receiver or statutory or official management is appointed over all or any of the Purchaser's assets; or
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| (e)
| any Goods are at risk.
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19.6
| 'Force Majeure Event' includes an act of God, strike, lockout, other industrial disturbance or labour difficulty, war, act of public enemy, blockade, revolution, riot, insurrection, civil commotion, lightning, storm, flood, fire, earthquake, explosion, embargo, unavailability of any essential equipment or materials, unavoidable accident, lack of transportation, or anything done or not done by or to a person, except the party relying on force majeure.
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19.7
| 'Goods' means all Karcher products available for purchase on the Website including, but not limited to cleaning equipment for home, garden and cars and products for professional applications such as cleaning tasks.
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19.8
| 'GST' means goods and services tax imposed under the Goods and Services Tax Act 1985.
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19.9
| 'Karcher' means Karcher Limited, Company Number 883232 of c/- BDO Auckland, Level 2, 116 Harris Road, East Tamaki, Auckland and includes Karcher's successors and assignees.
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| 19.10 | 'Purchaser' means the person purchasing the Goods from Karcher pursuant to the Contract, including that person's successors and assigns.
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| 19.11 | 'Website' means http://www.karcher.co.nz.
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19.12
| References to the Consumer Guarantees Act 1993, the Privacy Act 1993 or the Sale of Goods Act 1908 include such legislation from time to time amended, re-enacted or substituted and any statutory instruments, regulations and orders issued under such legislation.
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