Terms and Conditions - Aquafit Ltd

GENERAL INFORMATION

The following information is not intended to be incorporated into the subsequent agreement; it is here for informative purposes only. The terms of the agreement do not begin until the area titled ‘Part I – General Terms & Conditions’.

Rates

www.aquafit.co.nz strives to offer freight free on all orders however some products may incur freight.

We will contact you before dispatching order to discuss freight if there is to be a freight charge.

Tracking/Estimated Delivery Times

We're proud to say that the overwhelming majority of orders received are shipped the same business day.

Expected delivery date is one business day from day ordered.
Deliveries are made Monday through Friday only.

Shipping Times

Most orders received by us before 3.30pm NZ Time are shipped the same business day. If you received our order confirmation email Monday - Friday, before 3.30pm NZ Time, your order will be shipped the same day we received it. Please note that a very small number of orders require extra processing time for various reasons. Those will be shipped the following business day.

If you have ordered an item that is out-of-stock or sold-out, we will attempt to contact you immediately. Kindly understand that a delay may also occur if your credit card was declined or for address verification if your billing address was entered incorrectly.

PLEASE NOTE: Rural and some residential areas may require an additional day(s) delivery time.

Returns

www.aquafit.co.nz takes every effort to ensure the quality of our products arrives to you in perfect condition. Should you experience a problem with your order please email us at sales@aquafit.co.nz and we will do our utmost to resolve any issue. Goods will only be accepted for exchange if received back at www.aquafit.co.nz in a saleable condition. Please note we cannot refund postage and packaging unless goods are deemed to be faulty. Our returns policy and process is described in detail in the General Terms and Conditions hereunder.

Security regarding Online Payment

We use the secure a Hosted Payment page solution from DPS to process online orders. Customers can see their cards being authorised and debited in real time, all in an SSL secure environment. The Hosted Payment page enables us to offer customers a safe and speedy online shopping experience.
DPS is committed to protecting the security of your data. We use a variety of security technologies and procedures to help protect your personal information from unauthorised access, use or disclosure. For example, we store the personal information you provide in computer servers with limited access that are located in controlled facilities secured by the latest in surveillance and security technology. When we transmit sensitive information (such as a credit card numbers) over the internet, we protect it through the use of encryption, such as the Secure Socket Layer (SSL) protocol. Credit card details stored on site are encrypted using 168bit 3DES encryption. DPS is also certified AIS compliant.

 

PART I – GENERAL TERMS AND CONDITIONS

1. Definitions

1.1 Seller shall mean Aquafit Limited and its successors and assigns.

1.2 Buyer shall mean the Buyer or any person acting on behalf of and with the authority of the Buyer.

1.3 Guarantor means that person (or persons), or entity that agrees herein to be liable for the debts of the Buyer if a Limited Liability Buyer on a principal debtor basis.

1.4 Goods shall have the same meaning as in section 2 of the Sale of Goods Act 1908 and are goods supplied by the Seller to the Buyer (and where the context so permits shall include any supply of Services as hereinafter defined).

1.5 Services shall mean all services supplied by the Seller to the Buyer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined supra).

1.6 Price shall mean the cost of the goods as agreed between the Seller and the Buyer subject to clause 4 of this contract.

1.7 Agreement shall mean the Agreement agreed to by the Seller and the Buyer, and shall incorporate the Digital Terms & Conditions and the General Terms & Conditions, subject to clause 2 of the Digital Terms & Conditions.

1.8 General Terms & Conditions shall mean part I of this Agreement.

1.9 Digital Terms & Conditions shall mean part II of this Agreement.

1.10 Intellectual Property shall mean all present and future rights, whether registerable or not and whether registered or not, created wheresoever in the world conferred by statute, common law or equity and includes trademarks, know-how, trade names, trade secrets, data, patents, designs, text, images, methods, processes, business and domain names, specifications, rights to confidential information, copyright and any rights in relation to inventions and technical information.

2. Acceptance

2.1 Any instructions received by the Seller from the Buyer for the supply of Goods shall constitute acceptance of the terms and conditions of the Agreement contained herein.

2.2 Upon acceptance of the terms and conditions of the Agreement by the Buyer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Seller.

2.3 None of the Seller’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Seller in writing nor is the Seller bound by any such unauthorised statements.

3. Goods / Services

3.1 The Goods and/or Services are as described on the invoices, quotation, work authorisation or any other work commencement forms as provided by the Seller to the Buyer.

4. Price and Payment
4.1 At the Seller’s sole discretion:

(a) The Price shall be as indicated on invoices provided by the Seller to the Buyer in respect of Goods supplied; or

(b) The Price of the Goods, subject to clause 4.2, shall be the Seller’s quoted Price which shall be binding upon the Seller provided that the Buyer shall accept in writing the Seller’s quotation within thirty (30) days.

4.2 Any variation from the plan of scheduled works or specifications will be charged for on the basis of the Seller’s quotation and will be shown as extras on the invoice. Payment for all extras must be made in full at their time of completion.

4.3 The Seller may withhold delivery of the Goods until the Buyer has paid for them, in which event payment shall be made before the delivery date.

4.4 At the Seller’s sole discretion, payment for approved Buyers shall be due on 20th each month following the posting of a statement to the Buyer’s address or address for notices.

4.5 Payment will be made by cheque, or by direct credit, or by any other method as agreed to between the Buyer and the Seller.

4.6 The Price shall be increased by the amount of any GST and other taxes and duties that may be applicable, except to the extent those such taxes are expressly included in any quotation given by the Seller.

5. Delivery of Goods

5.1 Delivery of the Goods shall be made to the Buyer’s address. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.

5.2 Where there is no agreement that the Seller shall send the Goods to the Buyer, delivery to a carrier at limited carrier’s risk at the expense of the Seller is deemed to be delivery to the Buyer.

5.3 Delivery of the Goods to a third party nominated by the Buyer is deemed to be delivery to the Buyer for the purposes of this agreement.

5.4 The Buyer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that:

(a) such discrepancy in quantity shall not exceed 10%; and,

(b) the Price shall be adjusted pro rata to the discrepancy.

5.5 The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.

5.6 The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.

6. Risk

6.1 If the Seller retains property in the Goods nonetheless all risk for the Goods passes to the Buyer on delivery.

6.2 If any of the Goods are damaged or destroyed prior to property in them passing to the Buyer, the Seller is entitled, without prejudice to any of its other rights or remedies under these terms and conditions (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable in respect of the Goods. This applies whether or not the Price has become payable under these terms and conditions. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.

7. Defects/Returns

7.1 The Buyer shall inspect the Goods on delivery and shall within fourteen (14) days of delivery notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Buyer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Buyer believes the Goods are defective in any way. If the Buyer shall fail to comply with these provisions the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.

7.2 For defective Goods which the Seller has agreed in writing that the Buyer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods or repairing the Goods provided that:

(a) the Buyer has complied with the provisions of clause 7.1;

(b) the Goods are returned at the Buyers cost within fourteen (14) days of the delivery date along with either a copy of the original invoice or the Seller’s credit form;

(c) the Seller will not be liable for Goods which have not been stored or used in a proper manner;

(d) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonable possible in the circumstances.

7.3 Subject to clause 7.4 and to the Buyer compiling with the provisions of clauses 7.2(b) to 7.2(d) the Seller may (in its discretion) accept the Goods for credit but this may incur a handling fee of up to 15% of the value of the returned Goods plus any freight.

8. Warranty

8.1 For Goods not manufactured by the Seller the warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller shall be under no liability whatsoever except for the express conditions as detailed and stipulated in the manufacturer’s warranty.

9. Default & Consequences of Default

9.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and shall accrue at such a rate after as well as before any judgement.

9.2 If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify the Seller from and against the entire Seller’s costs and disbursements including on a solicitor and own Buyer basis and in addition all of the debt collector’s costs of collection.

9.3 Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Buyer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller exercised its rights under this clause.

9.4 In the event that:

(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable to meet its payments as they fall due; or;

(b) the Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or,

(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer,

then without prejudice to the Seller’s other remedies at law:

(i) the Seller shall be entitled to cancel all or any part of any order of the Buyer which remains unperformed in addition to and without prejudice to any other remedies; and

(ii) all amounts owing to the Seller shall, whether or not due for payment, immediately become due and payable.

10. Title

10.1 It is the intention of the Seller and agreed by the Buyer that property in the goods shall not pass until:

(a) The Buyer has paid all amounts owing for the particular Goods; and,

(b) The Buyer has met all other obligations due by the Buyer to the Seller in respect of all contracts between the Seller and the Buyer, and that the Goods, or proceeds of the sale of the Goods, shall be kept separate until the Seller shall have received payment and all other obligations of the Buyer are met.

10.2 It is further agreed that:

(a) The Buyer shall not deal with the money of the Seller in any way that may be adverse to the Seller.

(b) Until such time as ownership of the Goods shall pass from the Seller to the Buyer the Seller may give notice in writing to the Buyer to return the Goods or any of them to the Seller. Upon such notice the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease.

(c) If the Buyer fails to return the Goods to the Seller then the Seller or the Seller’s agent may enter upon and into land and premises owned, occupied or used by the Buyer, or any premises as the invitee of the Buyer, where the Goods are situated and take possession of the Goods, without being responsible for any damage thereby caused.

(d) Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Seller’s ownership of rights in respect of the Goods shall continue.

(e) The Buyer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Seller.

(f) The Seller may require payment of the Price or the balance of the Price due together with any other amounts due from the Buyer to the Seller arising out of these terms and conditions, and the Seller may take any lawful steps to require payment of the amounts due and the Price.

(g) The Seller can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Buyer.

(h) Until such time the Buyer has the Seller’s authority to convert the goods into other products and if the goods are so converted, the parties agree that the Seller will be the owner of the end products.

11. Personal Property Securities Act 1999

11.1 Upon assenting to the Agreement in writing the Buyer acknowledges and agrees that:

(a) The Agreement constitute a security agreement for the purposes of the PPSA; and

(b) A security interest is taken in all Goods previously supplied by the Seller to the Buyer (if any) and all Goods that will be supplied in the future by the Seller to the Buyer during the continuance of the parties relationship;

11.2 The Buyer undertakes to:

(a) sign any further documents and/or provide any further information, such information to be complete, accurate and up-to-date in all respects, which the Seller may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register; and,

(b) indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby; and,

(c) not register a financing change statement or a change demand without the prior written consent of the Seller; and,

(d) give the Seller not less than fourteen (14) days prior written notice of any proposed change in the Buyer’s name and/or any other change in the Buyer’s details (including but not limited to, changes in the Buyer’s address, facsimile number, or business practice); and

(e) immediately advise the Seller of any material change in its business practices of selling the Goods that would result in a change in the nature of proceeds derived from such sales.

(f) The Seller and the Buyer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms and Conditions.

(g) The Buyer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.

11.3 Unless otherwise agreed to in writing by the Seller, the Buyer waives its right to receive a verification statement in accordance with section 148 of the PPSA.

11.4 The Buyer unconditionally ratifies any actions taken by the Seller under and by virtue of the power of attorney given by the Buyer to the Seller under clauses 11.1 to 11.3.

12. Security & Charge

12.1 Notwithstanding anything to the contrary contained herein or any other rights which the Seller may have howsoever:

(a) Where the Buyer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Buyer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Seller or the Seller’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Buyer and/or the Guarantor acknowledge and agree that the Seller (or the Seller’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.

(b) Should the Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Buyer and/or Guarantor shall indemnify the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own Buyer basis.

(c) To give effect to the provisions of clause [11, 12.1(a) to (b)] inclusive hereof the Buyer and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Seller or the Seller’s nominee, any debt collector as the Buyer’s and/or Guarantor’s true and lawful attorney to execute mortgages and charges (whether registrable or not) including such other terms and conditions as the Seller and/or the debt collector shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Buyer and/or the Guarantor in any land, realty or asset in favour of the Seller and in the Buyer’s and/or Guarantor’s name as may be necessary to secure the said Buyer’s and/or Guarantor’s obligations and indebtedness to the Seller and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in the Seller’s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.

13. Intellectual Property

13.1 Where any designs or specifications have been supplied by the Buyer for manufacture by or to the order of the Seller then the Buyer warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the Goods shall not infringe the rights of any third party.

13.2 The Intellectual Property in all designs, documents, documents or anything otherwise conceived or created by the Seller shall remain with the Seller at all times.

14. Cancellation

14.1 The Seller may cancel these terms and conditions or cancel delivery of Goods and Services at any time before the Goods are delivered by giving written notice. On giving such notice the Seller shall promptly repay to the Buyer any sums paid in respect of the Price for those Goods. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.

15. Privacy Act

15.1 The Buyer and the Guarantor/s (if separate to the Buyer) authorises the Seller to collect, retain and use any information about the Buyer, for the purpose of assessing the Buyers creditworthiness or marketing any Goods and Services provided by the Seller to any other party.

15.2 The Buyer authorises the Seller to disclose any information obtained to any person for the purposes set out in clause 15.1

15.3 Where the Buyer is a natural person the authorities under (clause 15.1 & 15.2) are authorities or consents for the purposes of the Privacy Act 1993.

16. Buyers Disclaimer

16.1 The Buyer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Seller and the Buyer acknowledges that he buys the Goods relying solely upon his own skill and judgement and that the Seller shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the Manufacturer which warranty shall be personal to the Buyer and shall not be transferable to any subsequent Buyer.

17. Unpaid Sellers Rights To Dispose Of Goods

17.1 In the event that:

(a) the Seller retains possession or control of the Goods; and

(b) payment of the Price is due to the Seller; and

(c) the Seller has made demand in writing of the Buyer for payment of the Price in terms of this contract; and

(d) the Seller has not received the Price of the Goods,

then, whether the property in the Goods has passed to the Buyer or has remained with the Seller, the Seller may dispose of the Goods and may claim from the Buyer the loss to the Seller on such disposal.

18. Consumer Guarantees Act 1993

18.1 This agreement is subject, in all cases except where the Buyer is contracting within the terms of a trade/business (which cases are specifically excluded), to the provisions of the Consumer Guarantees Act 1993.

19. Survival

19.1 Any provision of this agreement, or any other agreement intended to be subject to this agreement, which is intended to, or by its nature, survive termination of this agreement of any obligation hereunder, will survive such termination.

20. Indemnity

20.1 The Buyer will indemnify the Seller from and against all claims, costs, suits, actions and demands by any third party howsoever or whensoever arising out of:

(a) breach of these terms or conditions, including without limitation any breach of any warranty hereunder;

(b) any act or omission of the of the Buyer, whether in tort or otherwise.

21. General

21.1 If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

21.2 All Goods and Services supplied by the Seller are subject to the laws of New Zealand and the Seller takes no responsibility for changes in the law which affect the Goods or Services supplied.

21.3 The Seller shall be under no liability whatever to the Buyer for any indirect loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by the Seller of these terms and conditions.

21.4 In the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to damages for direct loses; but not for consequential or indirect losses, or losses of profit. Under no circumstances shall the sum of those damages exceed the Price of the Goods.

21.5 Neither party shall be liable for any default due to a force majeure, which includes any act of God, terrorism, war, strike, lock out, industrial action, flood, storm, fire, epidemic, national crisis, explosion or other event beyond the reasonable control of either party. If such an event continues for more than a period of 10 working days, then either party may terminate the contract.

21.6 The Buyer shall not set off against the Price amounts due from the Seller.

21.7 The Seller may license or sub-contract all or any part of its rights and obligations without the Buyer’s consent.

21.8 The Seller reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the Seller notifies the Buyer of such change.

21.9 In the event of any default where there has been more than one Buyer, each Buyer shall be jointly and severally liable for all payment of the Price.

 

PART II – DIGITAL TERMS AND CONDITIONS

1. Definitions

1.1 Seller shall mean Aquafit Limited and its successors and assignees.

1.2 Buyer shall mean the Buyer or any person acting on behalf of and with the authority of the Buyer.

1.3 Website shall mean the internet site www.aquafit.co.nz

1.4 Service shall mean any use of the Website, which includes any shopping and participation in promotions run by that site.

1.5 Price shall mean the cost of the goods as agreed between the Seller and the Buyer subject to clause 4 of the General Terms & Conditions.

1.6 Agreement shall mean the Agreement agreed to by the Seller and the Buyer, and shall incorporate the Digital Terms & Conditions and the General Terms & Conditions, subject to clause 2 of the Digital Terms & Conditions.

1.7 Digital Terms & Conditions shall mean part II of this Agreement,

1.8 General Terms & Conditions shall mean part I of this Agreement

1.7 Intellectual Property means all present and future rights, whether registerable or not and whether registered or not, created wheresoever in the world conferred by statute, common law or equity and includes trademarks, know-how, trade names, trade secrets, data, patents, designs, text, images, methods, processes, business and domain names, specifications, rights to confidential information, copyright and any rights in relation to inventions and technical information.

2. Application of Part II

2.1 The Digital Terms & Conditions shall apply to the Agreement whenever there is use of the Service.

2.2 In the event of any inconsistency between the Digital Terms & Conditions and the General Terms & Conditions, the Digital Terms & Conditions shall take precedence in the application of this Agreement subject to clause 2.1 of the Digital Terms & Conditions.

3. Payment

3.1 The following provisions apply in addition to those in clause 4 of the general terms and conditions:

(a) All Prices shown on the Website are in New Zealand dollars;

(b) All transactions are processed in New Zealand dollars, in New Zealand.

4. Shipping

4.1 It is the responsibility of the Buyer to give a full and correct address to the Website. The Seller will not be responsibility for any costs associated with delivery to an incorrect given by the Buyer.

5. Use of the Service

5.1 The right to use the Service is personal and non-transferable.

5.2 The Service’s content, advice or other information are available free of charge unless it is otherwise expressly stated, notwithstanding any network or connection charges.

6. Intellectual Property

6.1 All content of the Website is the Intellectual Property of that Website. No part may be copied without the written consent of the Website.

7. Disclaimer

7.1 The Seller reserves the right to change, delete or move any information provided on the Website without notice.

7.2 The Website shall not be liable for any direct, indirect or consequential damages attributable to the Buyer’s access or inability to access the Service. This includes, but is not limited to:

(a) Any viruses obtained from the Website; or,

(b) Use of or reliance on the information or materials contained on the Website.