Terms and Conditions

These terms and conditions apply to all our Sale of Goods Contracts. Any order placed with Raj Enterprises Limited T/A Kelvin's ("Our", "Us", "We", or "Kelvin's") by you ("You" or "Customer") constitutes your agreement to be bound by these terms. Any additional or different terms you stipulate or state in any communication with Kelvin's (including an order) are hereby objected to and will not bind Kelvin's unless Kelvin's agrees in writing. No sales person, representative or agent is authorised by Kelvin's to give any guarantee, warranty or representation in addition to, or contrary to these terms. In any event, receipt of goods by you (or another as you direct) upon delivery constitutes your agreement to be bound by these terms.

1. Sales and Purchase

1.1 Your placement of an order with us ("Order") constitutes an offer by you to purchase goods from us on these terms. The Order is placed when it is submitted to us.

1.2 The Order is accepted only when we notify you that we accept your Order. Delivery of goods constitutes notice of our acceptance of the order.

1.3 If we accept the Order, a binding contract between you and us will arise on these terms (the Contract). The Contract may be amended only by written agreement between us and you.

2. Price and price variation

2.1 Prices quoted are excluding GST unless otherwise stated. Unless otherwise agreed in writing, the price of the goods will be the current price on the day of order. We may change our prices from time to time without notice. Prices do not include any delivery fees, and we do not provide any delivery services. You must collect your order from our physical address.

2.2 Kelvin's shall be entitled to adjust any price quoted from time to time and the Customer agrees to pay any such adjusted price to take account of variations in the cost of Kelvin's of carrying out the whole or any part of the contract arising from any of the following:

(a) delays in arranging the goods or any of them as a result of instructions or lack of instructions from the Customer, the Customer's failure or inability to fulfil the obligations under the contract or any action or inaction by the Customer or other circumstances beyond Kelvin's' control;

(b) variation in the cost of Kelvin's acquiring the goods directly or indirectly;

3. Payment

3.1 Kelvin's reserves the right to suspend delivery of further goods if the terms of payment are not strictly adhered to by the Customer.

3.2 Interest may be charged on overdue accounts at a rate of 2.5% over bank rate.

3.3 Any expenses, costs or disbursements incurred by Kelvin's in recovering any outstanding monies including debt collection agency fees or solicitor's costs shall be paid by the Customer.

3.4 You must pay us any fees or costs imposed on us if any payment you make to us is dishonoured or reversed.

Special Terms Applying to Business Account Holders Only

3.5 Unless otherwise agreed, the purchase price shall be paid to Kelvin's at its address within 14 days of receiving the invoice. Payment will not be accepted by any means other than cash, direct credit or direct debit.

3.6 If any account is in dispute, the undisputed portion shall be payable in accordance with the normal terms of payment as provided in 3.5. Payment of the disputed portion may be withheld provided the matter is brought to Kelvin's attention immediately it is discovered and a letter of explanation setting out the particulars of the dispute is sent to Kelvin's within seven days of the dispute arising.

3.7 The Business Account Customer shall not be liable for any indebtedness arising from the fraudulent use of the account provided that the Customer must on discovering fraudulent use of the account immediately notify Kelvin's of such fraudulent use. The burden of proving such use was fraudulent shall lie with the Customer.

3.8 The Business Account Customer shall endeavour to return all goods acquired by fraudulent use.

4. Delivery

4.1 Unless otherwise arranged, the Customer must collect goods from Kelvin's at the address stated. The current site address for Kelvin's is 8 Mahia Road, Manurewa, Auckland 2102, New Zealand.

5. Privacy Act 2020

5.1 The Customer authorised Kelvin's to collect, retain, and use personal information about the Customer (including the information collected in this document) for the following purposes only:

(a) assessing the Customer's creditworthiness.

(b) disclosed to a third party details of this application and any subsequent dealings it may have with Kelvin's for the purpose of recovering amounts payable by the Customer and providing credit references.

5.2 The Customer, if an individual, has a right of access to information about the Customer held by Kelvins'. The Customer may request correction of that information and may require that the request be stored with that information. Kelvin's may charge reasonable costs for providing access to that information.

6. Intellectual Property

6.1 Where Kelvin's has followed an instruction given by the Customer, the Customer shall indemnify Kelvin's against all damages, penalties, costs and expenses of Kelvin's or in respect of which Kelvin's may become liable through any work required to be done in accordance with these instructions involving an infringement of a patent, trademark, registered design or common law right.

6.2 All information prepared by Kelvin's including, without limitation, customised pricing, proposals, reporting, electronic catalogues, website content, and details of improvements or cost reductions, is the intellectual property of Kelvin's and cannot be copied, altered or distributed without Kelvin's' prior written consent. Kelvin's will not be liable for any alterations made by you.

7. Return of Goods

7.1 Kelvin's will not accept the return of goods for credit or any other purpose unless Kelvin's agrees to accept the return of the goods. Return of goods will only be accepted if Kelvin's is notified within 24 hours of delivery, unless due to Kelvin's' error. Kelvin's reserves the right to charge for returned goods, excepting for when there has been an error on Kelvin's' part.

7.2 No returned goods shall be accepted by Kelvin's (even if Kelvin's agree to do so) if they have been tampered with by you or any other person and are not as new, if they are goods expressly sold on a non-return basis, or if they are not accompanied with a proof of purchase from Kelvin's. Where goods are returned to Kelvin's but not accepted as above, they shall be returned to you at your expense.

7.3 Receipt by Kelvin's or by any of our agents or representatives of any goods returned other than in accordance with clauses 7.1 and 7.2 shall not constitute nor be deemed to constitute Kelvin's' acceptance of the return of the goods for credit or any other purpose.

8. Risk

8.1 Risk in the goods shall pass to you at the time when our obligations under the contract are deemed under clause 4 to be completed.

9. PPSA Security Interest

9.1 The Customer grants to Kelvin's a Security Interest in the goods and their Proceeds to secure the obligation of the Customer to pay the purchase price of the goods and any other obligations of the Customer to Kelvin's under this contract (together "the Indebtedness") and, where the goods and/or Proceeds are not readily identifiable and/or traceable or their recoverable value is insufficient to pay the indebtedness, the security interest shall also extend to all the Customer's present and after acquired goods to the extend required to secure the Indebtedness.

9.2 As and when required by Kelvin's the Customer shall, at its own expense, provide all reasonable assistance and relevant information to enable Kelvin's to register a Financing Statement or Financing Change Statement and generally to obtain, maintain, register and enforce Kelvin's Security Interest in respect of the goods supplied, in accordance with the Personal Property Securities Act 1999 ("PPSA"). Customer hereby waives its right under section 148 of the PPSA to receive a copy of any Verification Statement.

9.3 The Customer shall not change its name without first notifying Kelvin's of the new name not less than 7 days before the change takes effect.

9.4 Where the Customer is a Business Account Customer, the Customer warrants that the goods are not purchased for use primarily for personal, domestic or household purposes.

9.5 Notwithstanding any reference to a particular invoice/order, where any sum remains outstanding by the Customer on more than one invoice/order, any payments received from the Customer shall be deemed to be made by the Customer and applied by Kelvin's in respect of each unpaid invoice/order on a pro rata basis PROVIDED THAT where Kelvin's applies payments in this manner it shall not charge interest on overdue balances that would have been cleared if the payments were not allocated pro rata.

9.6 Until the Customer has paid all money owing to Kelvin's the Customer shall at all times ensure that:

(a) the goods supplied by Kelvin's, while in the Customer's possession, can be readily identified and distinguished; and/or

(b) all Proceeds (in whatever form) that the Customer receives from the sale of any of the goods are readily Identifiable and Traceable.

9.7 Where the goods are purchased by the Customer as stock in trade for sale in the ordinary course of the Customer's business, nothing in this clause shall prevent the Customer from selling and delivering the goods in the ordinary course of the Customer's business. Otherwise, until the Customer has paid all money owing to Kelvin's, the Customer shall not sell or grant a Security Interest in the goods without Kelvin's' written consent.

9.8 The parties agree to contract-out of the PPSA in accordance with Section 107 of the PPSA to the extent that Section 107 applies for the benefit of, and does not impose a burden on, Kelvin's. 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 Kelvin's in respect of the Security Interest created by these terms and conditions of trade.

9.9 For the purpose of this clause words and phrases starting with a capital letter shall have the respective meanings given to them under, or in the context of, the PPSA.

10. Guarantees

Defective / non-conforming goods

10.1 Where the goods are of a kind ordinarily acquired for personal, domestic or household use or consumption in accordance with the Consumer Guarantees Act 1993 and the Consumer Guarantees Act 1993 applies to this contract:

(a) if any of the goods fail to comply with any guarantee in the Consumer Guarantees Act, Kelvin's will repair or replace those goods;

(b) without excluding Kelvin's' obligations under the Consumer Guarantees Act 1993, the Customer acknowledges that Kelvin's does not provide any Express Guarantees (as defined in that Act) other than those expressly confirmed by Kelvin's in writing;

(c) if the goods are acquired by the Customer for business purposes, the Customer agrees that the Consumer Guarantees Act 1993 does not apply;

(d) if the Customer supplies the goods in trade to a person acquiring them for business purposes, it must be a term of the Customer's contract that the Consumer Guarantees Act 1993 does not apply in respect of the goods; and

(e) if the Customer supplies the goods to any person, the Customer must not give or make any undertaking assertion or representation in relation to the goods without Kelvin's' prior approval in writing, and the Customer must give the person buying the goods such product information relating to the goods as Kelvin's requires, and the Customer agrees to indemnify Kelvin's against any liability or cost incurred by Kelvin's under the Consumer Guarantees Act 1993 as a result of any breach by the Customer of these obligations.

10.2 The following terms apply wherever the Consumer Guarantees Act 1993 does not apply to this 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 may at Kelvin's discretion be repaired or replaced, or the price refunded.

(b) any right which the Customer may have to reject non-conforming or defective goods will only be effective if:

(i) the Customer notifies Kelvin's in writing within 24 hours following delivery and Kelvin's is given the opportunity to inspect the goods; and

(ii) the goods are returned unused, re-saleable and/or in the condition the Customer received them.

(c) Kelvin's will not repair or replace, or refund the price of any goods for so long as the Customer is in default in relation to any amount owing.

(d) Kelvin's accepts no liability for any claim by the Customer or any other person, including without limitation any claim relating to or arising from:

(i) 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

(ii) any representations, warranties, conditions or agreement made by any agent or representative which are not expressly confirmed by Kelvin's in writing; or

(iii) any services forming part of the supply of the goods which have been performed by any third party;

and the Customer agrees to indemnify Kelvin's against any such claim.

(e) in any event, Kelvin's' liability under any claim shall not exceed the price of the goods.

10.3 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 are to be modified to the extent necessary to give effect to that intention.

11. Customer's Liability & Default

11.1 If the Customer shall:

(a) fail to make any payment due under the contract or commit any other breach of any of the Customer's obligations under the contract; or

(b) suffer execution under any judgment; or

(d) make any composition or arrangement with any creditor; or

(e) being a company, pass a resolution for winding up or have a receiver appointed over any of its property or have a winding up petition presented against it,

Kelvin's (in addition to any other remedies hereby or by statute conferred) may treat the contract as terminated and any part of the purchase price then unpaid, together with any other monies owing hereunder, whether or not due under the terms of the contract shall forthwith become due and payable. Any such termination shall be without prejudice to any claim or right Kelvin's may otherwise possess.

12. Variations to Terms and Conditions of Trade

12.1 Kelvin's may from time to time and in its sole discretion amend, add to or delete any of the terms of these terms and conditions of trade with immediate effect by giving notice to the Customer PROVIDED THAT Kelvin's shall not make any variation to the nature or extent of the Security Interest granted by the Customer in clause 9.1 without the written agreement of the Customer.

13. Governing Law

13.1 These terms of trade are governed by the laws of New Zealand.

13.2 Kelvin's and the Customer shall submit to the non-exclusive jurisdiction of the courts of New Zealand in respect of any dispute or proceeding arising out of these terms and conditions of trade.