These terms and conditions of trade were last updated on 6 December 2018.
The following general terms and conditions are applicable to all orders of kitchens and its components/accessories/appliances (“the Kitchen”) manufactured and sourced by Trends Kitchens Limited (“Trends”). No other terms, conditions or deviations from these general terms and conditions shall be binding unless accepted in writing by an authorised representative of Trends.
The meaning of the word 'Customer' includes an individual authorized to act on their own behalf or on behalf of a partnership, company, trust, incorporation and government agency. In all cases the Customer must provide evidence of the source of their authority to purchase any product(s)/service(s) from Trends. The customer consents to Trends to obtain supporting information from third parties about that evidence.
In the event that the Customer is a building company or tradesman, both the building company or tradesman and the individual homeowner agree to be bound by, and shall execute a copy of the within terms and conditions of trade to the intent that both the building company or tradesman and the individual homeowner shall be "Customers" for the purposes of the within terms of trade.
Trends shall engage one of its kitchen designers to work with the Customer to design a Kitchen that meets with the requirements of the Customer. The plans and specifications produced by the designer shall remain the property of Trends unless and until an order for the manufacture and/or installation of the Kitchen has been received by Trends and payment has been made in full in accordance with these general terms and conditions.
Any variation as to addition of any Product(s) to an existing signed order shall:
be recorded in writing and signed by both parties by electronic or manual means,
update any existing invoice to include the addition of these Product(s);
be binding from the date of signing;
No variation or alteration to the kitchen design shall be binding on the parties unless recorded in writing and signed by both parties, including any adjustment to the price.
The Customer loses the right to reject any product(s)/service(s) from Trends as a result of ‘a simple change in mind’ on signing the order. At the time of signing the full price becomes payable as a lump sum or by way of payment schedule. In the event that the Customer wishes to cancel the order Trends shall return the deposit less all actual and reasonable costs and expenses incurred by Trends, including an administration fee of 5% of the contract price, provided that the Customer shall not be entitled to cancel the order where Trends has placed binding orders for the other components for the Kitchen or once the manufacturing has begun. In the event of cancellation Trends shall retain ownership of the design plans and specifications.
The price of the Kitchen shall be the price stated in the quotation together with all extras selected by the Customer and subject to variation in accordance with clause 5.
In signing the order the Customer has accepted the price of the product(s) ordered.
In the case the Customer is a Building Company or Tradesman in the Building Sector the full payment is due on the 20th of the following month after invoicing of this agreement. Notwithstanding Sections 22 & 24 of the Construction Contracts Act 2002, Trends reserves the right to stop manufacture, delivery and installation of the Kitchen until the Customer makes sufficient and timely payments to the satisfaction of Trends.
In other cases, upon signing the quotation Customers will receive an invoice for each of the following payments listed below:
For the avoidance of doubt, if Trends is unable to complete installation of the Kitchen due to any act or omission of the Customer or the Customer's contractors, the final payment of up to 20% of the total cost shall be immediately payable.
The customer is liable to pay the invoiced amount within the times specified or the payment events listed above unless the Customer provides Trends Kitchens Ltd a payment schedule within the times specified in the contract and it is consented to by Trends Kitchens Ltd subject to Sections 22 & 24 Construction Contracts Act 2002.
The Customer after signing this agreement must notify Trends Kitchens Ltd in writing to info@trendskitchens.co.nz about the payment schedule proposed.
In the event that the product(s) supplied by Trends are part or full fulfillment of a residential or commercial construction contract and any variation by the Customer then the adjudicating provisions of the Construction Contracts Act 2002 shall apply including the provisions relating to payment of schedular payments and the collection of these payments.
Trends reserve the right to charge interest on any amount owing after the Due Date at the rate of 15% per month or part month. Any expenses, disbursements and legal costs incurred by Trends in the enforcement of any rights contained in this contract shall be paid by the Customer, including, but not limited to, any solicitor’s fees on a solicitor/client basis or debt collection agency fees.
Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
The Kitchen supplied by Trends shall remain the sole and absolute property of Trends as the legal and equitable owner until such time as the Customer makes payment in full to Trends of all amounts owing in respect of the Kitchen. If the Customer fails to make full payment by the Due Date, Trends shall be entitled to any time thereafter to enter into the premises where the Kitchen is being held or has been installed and retake possession of the same and hold the Kitchen until full payment is made or to resell the Kitchen to cover any deficiency on the resale. Trends shall not be liable for any costs, damages, expenses or losses incurred by the Customer or any third party as a result of this action, nor liable in contract or tort or otherwise in any way whatsoever unless by statute such liability cannot be excluded. Trends may either re-sell the repossessed Kitchen then credit the Customer’s account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs) or may retain the Kitchen and credit the Customers account with the invoice value thereof less such sum as Trends reasonably determines on account of obsolescence, loss of profit and costs.
So as not to defeat the objectives of the foregoing provisions of this clause, the Customer agrees that should the Kitchen supplied be affixed or installed in a property such as to rend it a fixture of that property, the Customer agrees that in considerations of Trends allowing the Kitchen to be so affixed or installed, the Customer shall upon demand being made by Trends at any time but before payment in full is made to Trends, execute a mortgage over the property in which the Kitchen has become a fixture in favour of Trends (to be prepared by Trends solicitors at the Customer’s costs), for the amount equivalent to the unpaid balance of the purchase price plus any interest owing thereon and any additional extras ordered by the Customer. The terms of such mortgage shall be collateral to the terms hereof and payment in full of the amounts owing to Trends hereunder shall operate as a full discharge of the mortgage. Trends agrees not to make demand on the Customer to execute such a mortgage unless any of the following occur:
The Memorandum of Mortgage referred to in this clause 12 hereof shall be the ADLS form approved by the Registrar General of Land 2007/4237, and the covenants of the said form whether executed by the Customer or not shall be deemed to be included in these terms and conditions of sale. The Customer hereby authorises Trends to lodge and maintain a Caveat against the title to the property in which the Kitchen has been affixed or installed for the protection of the agreement to mortgage described above should Trends in its absolute discretion consider it necessary to lodge such a Caveat.
The Customer hereby grants to Trends an irrevocable power of attorney in relation to the property in which the Kitchen has been affixed or installed to enable Trends to execute the mortgage referred to in this clause 12 hereof should the mortgage not be executed by the Customer for any reason whatsoever PROVIDED THAT Trends will not execute a mortgage as attorney for the Customer unless Trends has requested in writing that the Customer execute the mortgage pursuant to the terms of this agreement and the Customer has failed to execute such a mortgage within five working days of such request.
The Kitchen remains at Trends risk until delivery to the Customer. Subject to the availability of materials, delivery and installation of the Kitchen shall be completed within approximately 4 to 8 weeks from the later of the date of the site measure being completed by Trends and the Customer signing the final plans and specifications for the Kitchen. Trends shall not be liable for insurance of the Kitchen after delivery has been made. The burden of responsibility shall rest with the customer. The Customer acknowledges that the time frames specified in this clause are approximate time frames only. Trends will use all reasonable endeavours to ensure delivery and installation within the time frame specified but shall not be liable for any delay or failure to deliver and install the kitchen within that time frame. The Customer acknowledges that the timing of delivery of the solid bench top is subject to colour and availability and is outside of the control of Trends.
Trends shall at its sole cost rectify any defects in the materials or workmanship which are notified to Trends within 7 days of installation of the Kitchen and within a reasonable time of receiving notification of those defects in writing by email to info@trendskitchens.co.nz Trends shall not be liable under this clause to remedy:
The Consumer Guarantees Act 1993, the Fair Trading Act 1986, and other statutes may imply warranties or conditions or impose obligations upon Trends which cannot by law (or which apply only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on Trends, Trends liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.
The Customer grants to Trends a security interest in the Kitchen. The Customer acknowledges that Trends may, at the costs of the Customer, register a financing statement in respect of any security interest created by this agreement and do all such other acts and things as may be reasonably required by Trends for the purposes of ensuring that at all times Trends holds a perfected security interest under the Personal Property Securities Act 1999 (“PPSA”) in respect of the Kitchen supplied to the Customer under this agreement. For the purposes of Section 148 of the PPSA, the Customer agrees that Trends does not have to provide a verification statement to the Customer when Trends registers a financing statement in respect of any security interest created by this agreement.
The Customer shall pay Trends costs of any discharge or amendment of any financing statement. The Customer shall supply Trends within two business days of written request, copies of all documents granting security interests registered over the Customer’s personal property. The Customer authorises Trends as an agent to request any information from any secured party relating to any security interest which is held in any personal property which is or has been in the Customer’s possession or control. The Customer agrees that nothing in Sections 114(1) (a), 117(1) (c), 133 and 134 of the PPSA shall apply to these terms and conditions. The Customer agrees that its rights as a debtor in Sections 116, 119, 120(2), 121, 126, 127, 129, 131 and 132 of the PPSA shall not apply to these terms and conditions.
Title in any Products supplied by Trends passes to the Customer only when the Customer has made payment in full for the Kitchen and of all other sums due to Trends by the Customer on any account whatsoever. Until all sums due to Trends by the Customer have been paid in full, Trends has a security interest in all Products and proceeds of sale thereof and Trends may register such security interest under the PPSA. The Customer gives irrevocable authority to Trends to enter any premises occupied by the Customer or on which the Kitchen is situated at any reasonable time after default by the Customer or before default if Trends believe a default has occurred or is likely to occur. Trends shall not be liable in contract or in tort or otherwise in any way whatsoever unless by statute such liability cannot be excluded. Trends may either re-sell any repossessed Kitchen then credit the Customer’s account with the net proceeds of sale (after deduction of all reposession, storage, selling and other costs) or may retain the Kitchen and credit the Customer’s account with the invoice value thereof less such sum as Trends reasonably determines on account of obsolescence, loss of profit and costs. Where the Products are retained by Trends pursuant to this clause the Customer waives the right to receive notice under Section 120 of the PPSA and to object under Section 121 of the PPSA.
The following shall constitute defaults by the Customer:
In consideration of Trends entering into this contract, the Customer irrevocably agrees to provide Trends with a registerable mortgage between the Customer as mortgagor and Trends as mortgagee, on the current Auckland District Law Society all obligations mortgage form, secured over the land on which the kitchen work is to be completed or any land owned by the Customer. The Customer irrevocably appoints Trends as the Customer’s attorney to execute the registerable mortgage as referred to in the clause above in the event that the Customer fails to provide the said security to Trends.
The Customer acknowledges that Trends Kitchens Ltd reserves the right to any legal means to secure and recover any unpaid amounts owing to it as a result of this contract. These means may include registration of charges against land titles and/or mortgages; and engagement of a debt collection agency.
Any information generally relating to Trends products contained in the advertising, catalogue, price lists, illustrations or other similar matter submitted to the Customer whilst given in good faith shall be regarded only as approximate and intend to present to the Customer a general guide, the accuracy of which the Customer must test for itself. In particular the Customer acknowledges that colour samples for a number of the products may vary.
In the event of any materials being unprocurable then Trends may substitute any permissible materials as are of a value and quality as near as practicable to the specified materials. Any difference in the cost of such substitute materials shall be treated as an extra or a deduction of the contract price.
The Customer authorises Trends to obtain, collect, retain and use any information about the Customer for the purpose of assessing the Customer's creditworthiness, enforcing any rights under this contract. The Customer authorises Trends to disclose any information obtained to any person for the purposes set out in this clause. Where the Customer is a natural person, the authorities under this clause are authorities or consents for the purposes of the Privacy Act 1993.
Trends shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control. Failure by Trends to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations Trends has under this contract. If any provision of this contract shall be invalid, void or illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or implied.
The within general terms and conditions shall be governed by and construed in accordance with the laws of New Zealand and the parties shall submit to the exclusive jurisdiction of the New Zealand Courts.
