Effective 1st of April 2020
1. DEFINITIONS1.1 In these terms of trade and conditions, unless the context indicates otherwise:“Confidential Information” means any information relating to the business of either party, including customers, know-how or trade secrets, whether of a technical or business nature;"Force Majeure Event" means any event or circumstance:
“Goods” means any goods, products or deliverables supplied or provided by us to you and includes without limitation the LivingPantry Unit, any related or associated services, parts, or components together with all seedlings and associated products;“GST” means goods and services tax as defined in the Goods and Services Tax Act 1985;“Intellectual Property Rights” includes copyright, and all rights conferred under statute, common law or equity in relation to inventions (including patents), trade marks, designs, domain names, rights in databases, confidential information, trade secrets, tooling design, know-how, specifications, manufacturing processes and all other proprietary rights;“Order” means an order submitted by you to us for the purchase of Goods and/or Services, whether by email, via our website, facsimile, in person, or by telephone;“Price” means the total amount payable by you for the Goods and Services as determined in accordance with clause 3.1;“Services” means any services supplied or provided by us to you (including, if agreed by us, the lease of the Unit and any lease fees);“Terms” means these Terms and Conditions of Trade;“we”, “us”, “our” means LivingPantry Limited and its related companies (as that term is defined in the Companies Act 1993), agents, successors, or assigns; and“you” and “your” means the person/s or entity/ies to whom we provide Goods and Services.
- (a) beyond our reasonable control; and
- (b) that results in or causes our failure to comply with or observe any provision of these Terms,
- and includes, but is not limited to:
- (c) any event or circumstance occasioned by, or in consequence of, any act of God being an event or circumstance due to natural causes, directly or indirectly and exclusively without human intervention;
- (d) strikes, lockouts, other industrial disturbances, acts of public enemy, wars, terrorism, blockades, insurrections, riots, epidemics, pandemics or other infectious diseases, aircraft, shortage of labour or civil disturbances;
- (e) the binding order or requirement of any court, any government, or any local authority;
2.1 These Terms apply and are incorporated into any agreement for the supply of Goods and Services by us to you. All other terms and conditions are expressly excluded unless otherwise agreed in writing. If there is any conflict between an Order and these Terms, these Terms prevail.
2.2 Our agents, employees, contractors and representatives have no authority to make any oral representations, statements, warranties, conditions or agreements that conflict with these Terms.
2.3 By submitting an Order, you are deemed to have accepted these Terms. We will treat any person holding him/herself out as your agent, employee, contractor or representative as authorised by you to submit an Order.
2.4 A binding contract is deemed to be formed between us and you when we notify acceptance of your Order by email, facsimile, in person, or by telephone or otherwise act on your Order.
2.5 If you are more than one legal person or entity, then your liability is joint and several.
2.6 We may terminate this and/or any other agreement between us immediately if you do not make payment of any amounts due to us on or before the due date for payment, indicate that you will not pay any sums by the due date, fail to comply with your obligations under these Terms, or suffer an insolvency event.
2.7 You authorise us to collect, retain and use any information about you for the purpose of assessing your creditworthiness, or enforcing any rights under this agreement. We may share your information with other agencies for these purposes. If you are a natural person, you have the right to access and correct information about you.
3.1 Unless otherwise agreed by us, the price of the Goods and Services will be specified on acceptance of your Order. Where no Price is specified, the Price will be the current price at which such Goods and Services are sold or supplied by us at the time of the Order, plus all costs, expenses and disbursements incurred by us. The Price is exclusive of GST unless specifically stated otherwise. You will pay all applicable GST in addition to the Price. We reserve the right to alter the Price because of circumstances beyond our control.
3.2 The method and cost of delivery (if and where applicable) will vary according to the delivery method chosen by you.
3.3 Unless otherwise set out in the Order, all costs associated with delivery including but not limited to carriage and freight will be payable by you in addition to the Price.
3.4 If we provide you with a quote for the Goods and Services, the quotation shall be valid for 14 days from the date the quote was provided to you. However, we reserve the right to alter the quotation if exceptional circumstances arise beyond our control.
4. DEPOSIT AND PAYMENT
4.1 Subject to clause 4.2, full payment of the Price will be required on receipt of the invoice or as otherwise specified on our invoice/s (which may include direct debit requirements). The method of payment will be as directed by us.
4.2 If a deposit is payable, the deposit must be received by the due date we specify and we will not order Goods or commence Services or begin work on your behalf until such time as the deposit is received by us.
4.3 Where applicable you must specify an approved delivery method or specify that you will collect the Goods from us personally, on the Order. If we later agree to change the method of delivery at your request, further charges may apply.
4.4 You must pay all amounts owing to us without set off or deduction. We may, in our discretion, allocate any payment received from you towards any invoice that we determine and may do so at the time of receipt or at any time afterwards.
4.5 Without prejudice to our other rights and remedies under these Terms or at law, if you fail to make payment of any amount due to us, we may refuse to supply the Goods and Services and/or charge interest on the amount owing at the rate of 10% per annum from the due date for payment until payment is received in full.
4.6 Any expenses, disbursements and legal costs incurred by us in the enforcement of any rights contained in these Terms will be paid by you, including our reasonable solicitor’s fees or debt collection agency fees.
5.1 Delivery of the Goods and Performance of the Services will be made by us to the place and by the method specified by you in the Order. You must specify the exact location for delivery in the Order. If agreed in the Order, you may elect to collect the Goods personally from our nominated address.
5.2 We will use our reasonable endeavours to supply the Goods and Services by the delivery date specified, however, we will not be liable for any costs, losses, damages or claims in relation to any failure or delay in supply and you will not be able to terminate this agreement or any Order due to any failure or delay in supply. If we are unable to supply the Goods and Services as agreed solely due to any action or inaction of yours then we will be entitled to charge a reasonable fee for re-supplying the Goods and Services at a later time and date.
5.3 Risk in the Goods will pass from us to you when the Goods are given to a carrier, courier, or other bailee for purposes of transmission to you or when the Goods are available for collection, as the case may be.
6. RETENTION OF TITLE AND PPSA
6.1 We will retain ownership of and title to all Goods until payment has been made by you in full and during the term of any lease of the Unit. In the meantime, you will ensure that all Goods are stored in a way that clearly identifies the Goods as our property.
6.2 You acknowledge that until full payment is made for the Goods you retain possession of them solely as our bailee. You will hold the proceeds of sale of all Goods that have not yet been paid for in trust for us.
6.3 You agree that we, our agents or employees (on written notice) may enter onto any premises under your ownership or control for the purpose of inspecting and/or repossessing any Goods not paid for in full.
6.4 You hereby grant us a security interest over the Goods to secure your obligations to us under these Terms. If you should use or make use of the Goods in such a way that they are mixed with other goods, used up in the process of making other goods or become an unidentifiable part of new and different goods, we will be given ownership of such goods to secure your obligations to us under these Terms. You acknowledge that these Terms constitute a security agreement for the purposes of the Personal Property Securities Act 1999 (“PPSA”) or any other similar laws in any jurisdiction other than New Zealand, and you will provide us with any information we require to register a financing statement pursuant to the PPSA. Both parties contract out of sections 114(1)(a),133 and 134 of the PPSA, and you waive any rights listed under section 107(2) of the PPSA, and any right to receive a copy of the verification statement pursuant to section 148 of the PPSA.
7. YOUR OBLIGATIONS7.1 You will provide to us, in a timely manner (at your cost):(a) access to your premises and to other facilities as reasonably required by us in order to deliver the Goods and provide the Services and our obligations under these Terms; and(b) any documents, information or other materials as we may reasonably require for the performance of our obligations, and ensure that the documents, information or materials are complete and accurate in all material respects.
8. CONFIDENTIALITY8.1 Each party must not at any time (except in the proper course of performing its duties under these Terms) disclose to any person any Confidential Information of, or relating to, the other party, without the prior written approval of that other party. Each party shall ensure that its employees, contractors, officers and agents do not, without the written permission of the other party, use Confidential Information supplied to it for any purpose that is not related to these Terms. Nothing in this clause 8 prohibits disclosure of information which:(a) is in the public domain otherwise than as a result of a breach of confidence; or(b) is required to be disclosed by law or any government or governmental body, authority or agency having authority over a party to these Terms.
9. INTELLECTUAL PROPERTY
9.1 Unless otherwise agreed in writing between the parties all Intellectual Property Rights in the Goods and Services and all new Intellectual Property Rights that are developed, commissioned or created in relation to the same will be owned by us as such rights arise.
10. WARRANTY AND LIABILITY
10.1 Nothing in these Terms will restrict, negate, modify or limit any of your rights under the Consumer Guarantees Act 1993 or the Fair Trading Act 1986 where you are not acquiring the Goods and Services for the purpose of a business or in trade.10.2 To the extent that our liability is not otherwise limited or excluded, and to the maximum extent permitted by law, our aggregate liability to you whether in tort, contract, at law (including for a misrepresentation) or otherwise for any loss damage or injury in relation to the Goods and Services is limited to the Price actually paid by you. In such case we may, at our option, elect to:(a) provide a refund; or(b) repair the Goods; or(c) replace the Goods or re-provide the Services.10.3 Despite anything else contained in these Terms and to the maximum extent permitted by law:(a) to the extent that you have approved any Goods prior to delivery, then you will be deemed to have accepted such Goods if delivered to a corresponding quality;(b) we will not be responsible or liable for any acts or omissions of any third parties;(c) Unless otherwise agreed in writing by us, no claim relating to the Goods and Services or returns will be considered unless made within (14) days of delivery of the Goods or supply of the Services and must be accompanied by a copy of the original packing slip or invoice. We may make a deduction to cover handling charges or for deterioration in the original quality or appearance of the Goods;(d) no Goods will be accepted for return unless they are returned in an undamaged condition and in the original packaging, with all relevant instruction manuals included;(e) the parties agree and acknowledge that if the Goods and Services supplied by us and acquired by you are supplied or acquired in trade within the meaning of the Fair Trading Act 1986, that sections 9, 12A, and 13 of the Fair Trading Act 1986 will not apply to the agreement between us, and that it is fair and reasonable to exclude their application;(f) the parties agree and acknowledge that if they are both in trade, and that the Goods and Services supplied by us and acquired by you are supplied or acquired in trade, that the provisions of the Consumer Guarantees Act 1993 will not apply to the agreement between us, and that it is fair and reasonable to exclude their application;(g) the parties agree and acknowledge that the provisions of Part 3 of the Contract and Commercial Law Act 2017 will not apply;(h) unless these Terms expressly provide or the parties agree otherwise in writing (for example, pursuant to a specific warranty in relation to the Goods or the Services), to the fullest extent permissible by law all warranties, conditions or other terms implied by law are excluded; and(i) for the purposes of this clause you acknowledge that you had a reasonable opportunity to review these Terms, discuss them with us, and receive advice from your legal advisor, if you wished to do so.
10.4 To the maximum extent permitted by law, we will not be liable for any loss or damage of any kind whatsoever arising from the supply of Goods and Services by us to you, including direct or consequential loss and loss of profits, whether suffered or incurred by you or another person or entity and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Goods and Services provided by us to you.
11.1 These Terms constitute the sole understanding of the parties in relation to its subject matter and supersede all prior understandings, written or oral, which will be of no further force or effect. No alteration or variation of these Terms will be binding on us unless authorised by us in writing.
11.2 You must not assign, subcontract or transfer all or any part of your rights or obligations under these Terms (including undergoing an effective change in your management or control) without our prior written consent. We may assign any rights or obligations without your approval as well as subcontract any obligations to third parties.
11.3 If any dispute arises between the parties about these Terms or the Goods provided or the Services performed, a party must not commence legal proceedings unless and until the party has complied with the requirements of clause 11.4 and 11.5.
11.4 Any party claiming that there is a dispute must give notice in writing to the other party describing the nature of the dispute and the remedy sought and designating a representative in negotiations relating to the dispute. The representative must be a person with authority to settle the dispute. The parties must first seek to resolve such dispute by meeting and using good faith, reasonable endeavours to resolve the dispute.
11.5 If the dispute remains unresolved 20 business days after notice has been given under clause 11.4, the parties must seek a resolution through the use of mediation. The Dispute may be referred to mediation by any party by the delivery of written notice (“Mediation Notice”) to the other parties. The mediation shall be conducted in accordance with the terms of the LEADR New Zealand Inc. Standard Mediation Agreement by a mediator (and at a fee) agreed to by the relevant parties. If the parties fail to agree on a mediator (or on costs) within 5 Business Days following delivery of the Mediation Notice, then the mediator will be selected and the mediator's fee determined by the Chair for the time being of LEADR New Zealand Inc. The mediator will determine the procedure and timetable for the mediation and the costs of the mediation will be shared equally between the disputing parties.
11.6 Every notice given under these Terms will be sufficiently given if delivered personally, posted or successfully transmitted by email or facsimile to the intended recipient at his/her/its last known address or email address or facsimile number.
11.7 No waiver of any provision of these Terms will serve as a waiver of any other provision of these Terms and we will not have waived or be deemed to have waived any provision of these Terms unless such waiver is in writing and executed by us.
11.8 We will not be liable for any delay or failure in the performance of any of the obligations imposed by these Terms, provided that the failure is beyond our reasonable control or a result of a Force Majeure Event.
11.9 These Terms will be deemed to be made in New Zealand and will be construed and governed by the laws of New Zealand. The parties submit to the exclusive jurisdiction of the courts of New Zealand.
11.10 If any provision in these Terms is held to be invalid, void or illegal or unenforceable, the validity existence, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired.