Terms of Trade

All prices charged by Poolwerx are as advised by Poolwerx. Poolwerx may vary its pricing to take account of any additional delivery, or transportation costs and advise the Client in writing of any such change.

The Client will make payment for all Goods or services supplied upon delivery of the Goods or completion of the services. Variation of payment terms may only be by written agreement between Poolwerx and the Client. If the by American Express or Diners Club credit card a service charge of 3.5% will be levied on the payment. 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 and Poolwerx has the right to: (a) engage the services of a debt collector or solicitor to recover the Goods and the Client will indemnify Poolwerx (including without limitation all legal costs and expenses) for all costs incurred by Poolwerx to recover the debt. (b) cease or suspend supply of Goods or services until such time as the debt is repaid.

All implied conditions and warranties in relation to the Goods to be supplied by Poolwerx are excluded to the maximum extent permitted by 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. 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.

The Client must give Poolwerx the opportunity to inspect the Goods and must (at the Client’s cost) store the Goods separately and in the state and condition in which they were supplied by Poolwerx until Poolwerx inspects the Goods.

Poolwerx assigns all of its interest or benefit in any manufacturers warranty in respect of the Goods to the Client upon receipt of full payment for the product.

The Client acknowledges that if the Goods or services acquired from Poolwerx are for the purposes of business, then nothing in the Consumer Guarantees Act 1993 will apply.

Poolwerx will arrange delivery of the Goods to the place specified by the Client (Delivery Addresss). Unless otherwise stated, the Client bears all costs for transportation and delivery of the Goods to the Delivery Address during Poolwerx’s normal delivery hours, provided that the Delivery Address is accurate and suitable for the purposes of delivery. Delivery will be deemed to have occurred once the Goods arrive at the Delivery Address ready for unloading.

If the Client refuses to accept delivery of Goods or delays in doing so, Poolwerx may charge the Client for any additional costs or losses incurred as a result, including storage and transportation costs. The Client will also indemnify Poolwerx for any further costs incurred.

Poolwerx will use reasonable endeavours to fulfil Client orders which have been accepted by Poolwerx but will not be liable for any loss incurred or suffered by the Client as a result of any delay in the delivery of the Goods, including any failure to deliver the Goods.

Any date or time given by Poolwerx for the arrival of the Goods is only an estimate and Poolwerx does not guarantee delivery on that date or at that time.

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: the Client’s use or misuse of any Goods supplied;

(a) a defect advised to Poolwerx if Poolwerx has complied with its obligation to either replace the defective Goods or refund the price paid by the Client for the defective Goods.

(b) a defect that has not been advised to Poolwerx within 14 days of delivery of the Goods.

(c) representations, warranties or agreements purported to be made by an agent or representative of Poolwerx that has not been confirmed by Poolwerx in writing.

(d) late or non-delivery of the Goods, or inability to fulfil the Client’s order, so long as Poolwerx has advised the Client of late or non delivery of Goods, and Poolwerx has advised the Client that it can seek a refund of the monies paid for the Goods.

(e) damage or deterioration to the Goods occurring after delivery of the Goods to the Client.

Poolwerx will not be liable for any claim for loss of profits or consequential damages. 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 price paid by the Client in relation to the Goods.

Risk and Ownership of Goods

Risk and all insurance responsibility for theft or damage in all Goods supplied passes to the Client when Goods are delivered to the Client. 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 and must keep the Goods separate from all other Goods and maintain Poolwerx’s labelling and packaging.

Poolwerx Ecommerce Terms and Conditions

The terms and conditions set out below (Ecommerce Trading Terms) apply to all orders for products placed through the Poolwerx online platform (Poolwerx Platform). The use of the Poolwerx Platform is governed by these Ecommerce Trading Terms.
The Poolwerx Platform is operated by Poolwerx Corporation Pty Ltd ABN 94 061 535 493 (Poolwerx Corporation, Us, We) as a digital marketplace. Transactions that are processed through the Poolwerx Platform will be a contract for sale directly with the relevant Poolwerx franchisee responsible for fulfilling the order (Relevant Franchisee).
Poolwerx Corporation will process the order, including taking payment (via a secure third party payment provider), as agent for the Relevant Franchisee. The Relevant Franchisee will be responsible for fulfilling your order, including any consumer guarantees and warranty claims relating to the products that you order. Poolwerx Corporation is not the seller and is not responsible for supplying or installing any products that you order.
Without limiting the way in which you may become bound by these Ecommerce Trading Terms, you will be deemed to have accepted and will be bound by these Ecommerce Trading Terms by accessing the Poolwerx Platform or placing an order through the Poolwerx Platform.

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.

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.

Poolwerx may also retake possession of the Goods where the Client enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, administrator, receiver or manager or similar functionary appointed in respect of its assets, or any action is taken for, or with the view to, the liquidation, winding up or dissolution of the Client.

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.

For the purposes of the PPSA:

Terms used in this clause that are defined in the PPSA have the same meaning as in the PPSA; These Conditions constitute a security agreement and the Client grants Poolwerx the following security interests: A Purchase Money Security Interest in all present and future Goods supplied by Poolwerx to the Client and all proceeds arising therefrom as security for all Goods supplied by Poolwerx to the Client on a consignment basis; and The security interests referred to above are continuing interests irrespective of whether there are monies or obligations owing by the Client at any particular time; and The Client must do whatever is necessary in order to give a valid security interest over the Goods which is able to be registered by Poolwerx on the Personal Property Securities Register. The Client further agrees and acknowledges that: The security interests granted by it to Poolwerx under these Conditions are deemed to incorporate the memorandum of general terms registered pursuant to section 209 of the Land Transfer Act 2017 under 2018/4344. It will not change its name without first notifying Poolwerx of its new name not less than 7 days before the change takes effect; and It will make payment for all sums owing by it to Poolwerx pursuant to the payment requirements set out in these Conditions.

The Client undertakes to: Promptly do all things, sign any further documents and/or provide any information which Poolwerx may reasonably require to enable Poolwerx to perfect and maintain the perfection of its Security Interest. Give Poolwerx not less than 14 days prior written notice of any proposed change in the Client’s name and/or any other change in the Client’s details (including, but not limited to, changes in the Client’s address, facsimile number, trading name or business practice). Indemnify (and if requested by Poolwerx reimburse) Poolwerx for all expenses that Poolwerx incurs in registering a financing statement or financing change statement. The Client warrants and agrees that any transfer or on-sale of Goods will be for fair and reasonable value and the proceeds of sale or transfer of the Goods by the Client will be retained by the Client and held separately and on trust for Poolwerx pursuant to the terms of Poolwerx’s Security Interest until Poolwerx has been paid for the Goods in full.

To protect Poolwerx’s Security Interest, the Client agrees to notify Poolwerx in writing before making supplies to connected entities of Goods purchased from Poolwerx on credit where the purchase price remains unpaid. Connected entities include any company associated with the Client or any of its shareholders or directors.

Default and termination Poolwerx may terminate any contract between the Poolwerx and the clinet immediately in writing under the following circumstances:

(a) The Client fails to comply with these Conditions or any other agreement with Poolwerx; (b) The Client is subject to any actual or threatened dissolution, winding up, bankruptcy, liquidation, statutory management, insolvency or receivership or any event which generally precedes such an event; and (c) An event occurs or information becomes known to Poolwerx, which in Poolwerx’s opinion might materially affect the Client’s credit worthiness, the value of the Goods the subject of the Security Interest or the Client’s ability or willingness to comply with its obligations under these Conditions or any other agreement with Poolwerx. Consequences of Default:

(a) All amounts owing will immediately become due and payable notwithstanding that the due date has not arisen. (b) Poolwerx may enforce the Security Interest; and Poolwerx may (without the consent of the Client) appoint a receiver in respect of any Goods and their proceeds and any receiver is authorised to do anything referred to in these Conditions and otherwise as may be necessary to exercise all rights and powers conferred on a receiver by law (including, without limitation, the sale of the Goodsand collection of proceeds and accounts receivable in respect of those Goods). The Client agrees that, at any time after an event above has occurred or at any time if any Goods are at risk, Poolwerx may:

(a) Take possession of any Goods (b) and/or sell or otherwise dispose of any Goods and in each case Poolwerx will act in such manner and on such terms and conditions as it thinks fit, and, in each case, otherwise do anything the Client could do in relation to those Goods… Poolwerx may and is irrevocably authorised to, without prior notice, enter any land or premises where the Goods are kept in order to take possession of and/or remove them and for the purpose of facilitating the collection of proceeds and accounts receivable in connection with the Goods, without being responsible for any damage caused in doing so. The Client agrees to procure all other rights (including consents) necessary to enable, and to indemnify Poolwerx (and its employees, agents or appointed receiver) against any liability incurred in connection with, such entry, taking of possession and removal. Poolwerx (and its employees, agents or appointed receiver) may resell any of the Goods, collect the proceeds from the Client and apply the proceeds in reduction of any amount owing.

Should any of the events above occur, Poolwerx may (in addition to all amounts owing) charge an interest rate of 15% per annum for the period from the due date until the date of payment in full by the Client. The Client will pay all costs, incurred by Poolwerx, including legal costs and expenses and debt collectors’ costs, in the recovery or attempted recovery of outstanding money and the enforcement of these Conditions. Information About Client and Privacy Act 2020 The Client must notify Poolwerx of any change in circumstances that may affect the accuracy of the information provided by the Client to Poolwerx or any company related to Poolwerx. Any personal or credit information provided by the Client or obtained by Poolwerx will be held by Poolwerx and may be used by it for any of the following purposes: determining eligibility and terms for the provision of credit to the Client, supplying the Client with Goods, enforcing debts and other legal obligations owing to Poolwerx and disclosure to third parties associated with any of those purposes (including a credit reporting agency). The Client irrevocably authorises all persons, companies, credit reporting agencies and other entities to provide Poolwerx with such information as it may at any time request about the Client (including where applicable, its principals and directors) in relation to any of the purposes listed here and or any directly related purposes. Disputes If any dispute arises between the parties, the parties must aim to resolve the dispute within 20 working days of the dispute arising.

The party alleging the dispute must write to the other party detailing the dispute within 5 working days of the dispute occurring. The other party then has 5 working days to reply with the aim of resolving the dispute. The party alleging the dispute then has 5 working days after the receipt of the reply to accept the proposed action to resolve the dispute. If however, after the reply has been received and not accepted by the party alleging the dispute, the following provisions will apply. In the case of any unresolved disputes the parties agree to appoint an expert as a mutually acceptable third party to mediate upon the dispute and the parties agree to comply with the recommendation of such mediator. Such experts will act as a mediator and not as an arbitrator. Time will be of the essence in resolving any disputes. Unless otherwise determined by the expert, the cost of each and every such mediation will be borne equally by the parties.

If the parties are unable or unwilling to appoint an expert as a mediator then the parties agree that the President of the New Zealand Law Society will have the right to appoint a mediator or arbitrator to resolve the dispute. The parties agree that the mediation or arbitration must take place in New Zealand, and that the decision of any such mediator or arbitrator will be binding on the parties. Time will again be of the essence in resolving the dispute. Miscellaneous Non-performance or partial performance by Poolwerx of any of its obligations will be excused, without liability, during the time and to the extent that such performance is prevented, wholly or substantially, by any cause beyond the control of a party including but not limited to any order of a government or other authority, strike, lockout, labour dispute, delays in transit, difficulty in procuring Goods, embargo, epidemic, pandemic accident, emergency, outbreak of disease or restrictions imposed by a government authority to prevent or restrict an outbreak or disease, act of God or other contingency. Following such an event Poolwerx may, at its discretion, reallocate Goods between its Clients and its own requirements. Notices under these Conditions must be in writing and will (without limitation) be deemed validly given if posted, delivered by hand or sent by email to the address nominated by the recipient from time to time or the recipient’s principal business address as stated in the information sheet provided by the Client. If Poolwerx exercises or fails to exercise any right or remedy available to it this will not prejudice Poolwerx’s rights in exercising that or any other right or remedy of Poolwerx. Any waiver of any of the Conditions must be in writing and signed by an authorised officer of Poolwerx. The Client may not transfer its rights in respect of the purchase of the Goods to any other party without Poolwerx’s prior written consent. Poolwerx may, without prior notice to the Client, assign or novate its rights in respect of the purchase of the Goods to any third party and the Client agrees to consent to any such assignment or novation. Poolwerx may vary or replace these Conditions from time to time by notice in writing to the Client, which may be by email. Where any provision of these Conditions are rendered void, unenforceable or otherwise ineffective by operation of law, that will not affect the enforceability or effectiveness of any other provision of the Conditions.

Reference to any Act also includes any acts superseding the Acts stated in these Conditions. The parties agree to keep the existence of these Conditions confidential. These Conditions are governed by the laws of New Zealand and each of the parties submits to the exclusive jurisdiction of the courts of New Zealand.

Client means the person or entity that purchases the Goods from Poolwerx. Conditions means these terms and conditions of sale including any amendment or variation. Goods means goods supplied by Poolwerx to the Client. Poolwerx includes Poolwerx Corporation Pty Ltd, Poolwerx NZ Pty Ltd, its franchisees, servants, agents and contractors.