Terms & Conditions of Sale

Payment

  1. The Client will make payment in New Zealand Dollars for all Goods or services supplied upon delivery of the Goods or completion of the services.
  2. Variation of payment terms may only be by written agreement between Poolwerx and the Client.
  3. Prices for Goods may be varied by Poolwerx at any time and such prices include GST.
  4. Where Goods or services are provided on credit, payment must be made within the time agreed between Poolwerx and the Client.  Where a payment is overdue, the balance outstanding may be charged interest at the rate of 15% per annum.
  5. If Poolwerx needs to engage the services of a mercantile agent, debt collector or solicitor for collection of outstanding sums, the Client will be liable for the costs of debt collection.

Warranty for Products

  1. All implied conditions and warranties in relation to the Goods to be supplied by Poolwerx are excluded to the maximum extent permitted by the CGA and other applicable New Zealand law, to the extent that so far as legally possible these Conditions will comprise the entirety of both Poolwerx’ and the Clients’ rights and obligations.
  2. Subject to any rights conferred on the Client by the CGA or other applicable New Zealand law, if the Client wishes to make a claim in respect of a warranty or any other claim in respect of the Goods, the Client must give written notice of the claim to Poolwerx within 14 days of delivery of the Goods, time being of the essence. Poolwerx is not liable for any claim if the Client does not comply with this time limit.
  3. Poolwerx assigns all of its interest or benefit in any manufacturer's warranty in respect of the Goods to the Client upon receipt of full payment for the product.

Limitation of liability

  1. To the maximum extent permitted by law, Poolwerx excludes, for itself and for any supplier all liability for all claims, expenses, losses, damages and costs made against or incurred or suffered by the Client directly or indirectly (including without limitation lost costs and profits) arising out of:
    a)    the Client’s use or misuse of any Goods supplied;
    b)    the negligence of Poolwerx, its servants or agents and any supplier of Goods in the supply of Goods and services to the Client.
  2. Poolwerx’ liability to arising from the delivery of any defective Goods or Goods which do not comply with any warranty implied by the CGA or other applicable New Zealand law, or any other claim is limited to any one or more of the following (at Poolwerx’ option): 
    a)    replacement of the Goods or the supply of equivalent goods;
    b)    payment in lieu of replacing the goods or acquiring equivalent goods;
    c)    repair of the Goods; or
    d)    payment in lieu of having the Goods repaired.
  3. In any event, Poolwerx will not be liable for any claim for loss of profits or consequential damages.
  4. The liability of Poolwerx to the Client for loss or damage of any kind (including loss or damage caused by negligence) is reduced to the extent that the Client caused or contributed to that loss or damage.

Purchase of chlorinator – Possible rusting of pool structure

  1. Poolwerx expressly discloses and the Client confirms receiving prior notice from Poolwerx that in some instances chlorinators have caused rusting of the pool structure.  The Client acknowledges that rusting occurs for reasons completely beyond the control of Poolwerx.
  2. Purchase of the chlorinator is made by the Client on the express understanding that Poolwerx will not be responsible for any rusting of the pool structure which subsequently may occur and the Client releases Poolwerx from any loss or damage or claim arising out of or in relation to the rusting of the Client’s pool caused by the chlorinator purchased.

Risk and ownership of Goods

  1. Risk in all Goods supplied passes to the Client when Goods are delivered to the Client.
  2. Ownership of all Goods delivered to the Client remains with Poolwerx until payment is made for the Goods.  The Client holds all Goods delivered to the Client as fiduciary bailee.
  3. Repossession of Goods where full payment has not been received
  4. If the Client fails to pay for the Goods on the due date, the Client irrevocably authorises Poolwerx to enter the Client’s premises (or any other premises under the Client’s control if the Goods are stored at such premises) and use reasonable force to retake possession of the Goods without liability for trespass or any resulting damage.
  5. The Client agrees to indemnify Poolwerx and keep Poolwerx harmless for all claims by causes of action which may arise by Poolwerx retaking possession and the Client agrees to pay Poolwerx’ costs of retaking possession. Poolwerx will be entitled but not obligated to resell any Goods repossessed pursuant to the provisions of this clause.

Re-performance of service

  1.  If the Client is not satisfied with the service performed by Poolwerx and notifies Poolwerx within 7 days of the service being performed, Poolwerx will repeat the service at no additional cost to the Client.

Personal Property Securities Act 1999 (PPSA)

  1. The Client acknowledges that these Conditions constitute a security agreement under the PPSA which creates a security interest in favour of Poolwerx in all the Goods previously supplied (if any) and all Goods supplied thereafter by Poolwerx to the Client to secure the payment from time to time and of all money owing by the Client to Poolwerx.
  2. The Client acknowledges and agrees:
    a)    that by agreeing to these conditions, the Client agrees to grant a security interest (by virtue of the retention of title clause) to Poolwerx in respect of all Goods previously supplied (if any) and all Goods supplied thereafter by Poolwerx to the Client and these conditions will apply notwithstanding anything express or implied to the contrary contained in the any other agreement or document.
    b)    the Client agrees to grant the security interest to Poolwerx (as that term is defined in the PPSA) in respect of all of the Client's right, title and interest in the Goods.
  3. The Client undertakes to:
    a)    sign any further documents and/or provide any further information (which information the Client warrants to be complete, accurate and up-to-date in all respects) which Poolwerx may reasonably require to enable registration of a financing statement or financing change statement on the Personal Property Securities Register (PPSR);
    b)    not register a financing change statement as defined in Section 135 of the PPSA or make a demand to alter the financing statement pursuant to section 162 of the PPSA in respect of the Goods without Poolwerx’ prior written consent;
    c)    give Poolwerx not less than 14 days prior written notice of any proposed change in the Client’s name and/or any other changes in the details (including but not limited to facsimile number, email address, trading name or business practice);
    d)    pay all costs enforcing or attempting to enforce the security interest created by these conditions including executing subordination agreements; and
    e)    do all things necessary to assist Poolwerx in perfecting its security interest.
  4. Pursuant to Section 148 of the PPSA, unless otherwise agreed in writing by Poolwerx, the Client waives the right to receive a verification statement in respect of any financing statement or financing change statement relating to the security interest.
  5. To the maximum extent permitted by law, the Client waives the Client’s rights under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA.
  6. All terms used in clauses 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24, unless otherwise provided, have the same meaning as given to those terms in the PPSA.

Privacy Act 1993

  1. The Client authorises Poolwerx to collect, retain and use any information about the Client for the purpose of assessing the Client's creditworthiness or for the marketing of products and/or services; and to disclose information about the Client, whether collected by Poolwerx from the Client directly or obtained by Poolwerx from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.

Miscellaneous

  1. If any provision of these Terms and Conditions is invalid, void or illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired.
  2. These Terms are governed by and must be construed in accordance with the laws of New Zealand, and each party irrevocably submits to the jurisdiction of the courts in New Zealand.
  3. Poolwerx will not be liable for any default due to any act of God, war, strike, lock out, industrial action, fire, flood, drought, storm, pandemic or other event beyond the reasonable control of Poolwerx.
  4. The Client will not set off against a payment due and payable any amount due from Poolwerx.
  5. Poolwerx may amend these Terms and Conditions from time to time but such amendments will not take effect until Poolwerx has notified the Client in writing of those amendments or if earlier the date of appearance of the amendments on the Website and thereafter any orders placed with Poolwerx will be deemed to be offers by the Client to purchase Goods on the amended Terms.

Definitions

Client means any person who purchases Goods from Poolwerx and includes such person's agents, employees, executors, administrators, successors and permitted assigns;
Conditions means these terms and conditions of sale including any amendment or variation.
CGA means the Consumer Guarantees Act 1993 of New Zealand and any amendment, re-enactment or replacement of it.
Goods means goods supplied by Poolwerx to the Client.
GST means and and services tax levied under the Goods and Services Tax Act 1985 and any similar tax imposed subsequently.
Poolwerx includes Poolwerx Corporation Pty Ltd, Poolwerx NZ Pty Ltd, its franchisees, servants, agents and contractors