Terms and conditions
GENERAL TERMS AND CONDITIONS OF TRADE
Definitions
In these Terms, 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 beyond our reasonable control and includes, but is not limited to any event or circumstance occasioned by, or in consequence of, any act of God, strikes, lockouts, other industrial disturbances, wars, terrorism, blockades, insurrections, riots, epidemics, pandemics or other infectious diseases, shortage of labour or civil disturbances, the order, direction, or requirement of any court, government, or local authority;
“Goods” means any goods, products or deliverables supplied or provided by us to you and includes without limitation any related or associated services, parts, or components;
“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 your acceptance of our quote we provide to you specifying the Goods and/or Services you agree to purchase, your acceptance can be submitted by you to us either by email, 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;
“Terms” means these Terms and Conditions of Trade;
“we”, “us”, “our” means Pro-Mit Limited trading as Cutshop NZ (company no 1950268) and its related companies (as that term is defined in the Companies Act 1993) including its agents, franchisees, successors, or assigns; and
“you” and “your” means the person/s or entity/ies to whom we provide Goods and Services.
Contract
We will provide you with a quote outlining any choices made by you during the selection and sales process which will be valid for the period indicated in our quote to you and from the date the quote was provided to you. However, we reserve the right to alter the quotation due to an event outside our control (including changes in supplier’s pricing).
Any Order made by you with us for the supply of Goods or Services will be subject to these Terms. 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.
Our agents, employees, franchisees, contractors and representatives have no authority to make any oral representations, statements, warranties, conditions or agreements that conflict with these Terms.
By accepting a quote you are submitting an Order and you are deemed to have accepted these Terms and acknowledge that these Terms apply to all Orders made with any of our franchisees. We will treat any person holding themselves out as your agent, employee, contractor or representative as authorised by you to submit an Order.
A binding contract is deemed to be formed between us and you when we notify acceptance of your Order. You cannot cancel or suspend your Order once it has been accepted by us.
If you are more than one legal person or entity, then your liability is joint and several.
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.
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 yourself.
Price
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 we sell or supply such Goods and Services 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 (including changes in specifications, colours or materials, fluctuations in supplier costs, international monetary exchange rates, shipping rates, shortages, duties and tariffs, and other events outside our control).
The method and cost of delivery (if and where applicable) will vary according to the delivery method chosen by you.
Deposit And Payment
Subject to clause 4.2, full payment of the Price will be required on or before the 20th of the month following the date of the invoice or as otherwise specified on our invoice/s. The method of payment will be as directed by us.
A deposit of 50% of the Price is payable by you in advance and must be received by the due date specified in our invoice or as otherwise indicated to you by us. We will not supply Goods or commence Services on your behalf until such time as the deposit is received by us which is non-refundable. The balance of the Price is payable by you on completion of the Services.
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.
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 Official Cash Rate determined by the Reserve Bank of New Zealand plus 3% per annum from the due date for payment until payment is received in full.
You must pay any expenses, disbursements and legal costs that we incur enforcing any rights contained in these Terms, including our reasonable solicitors’ fees or debt collection agency fees.
Delivery
If agreed, we will deliver the Goods to the place, and by the method, specified by you in the Order. Otherwise, you agree to collect the Goods personally from our nominated address. If you do not collect the Goods within 10 days of being notified that they are available for collection, we may retain any payments made to us for the Goods and/or the Goods may be sold or otherwise disposed of at our sole discretion. If we later agree to change the method of delivery at your request, further charges may apply.
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 relating to any failure or delay in supply caused by you, a third party or a Force Majeure Event, and you will not be able to terminate this agreement or any Order due to that 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.
Unless we agree otherwise, risk in the Goods will pass from us to you when the Goods are collected or delivered in accordance with the Order. Goods will be deemed to be delivered when they are given to a carrier, courier, or other bailee for purposes of transmission to you or when the Goods are available for collection.
Retention Of Title And PPSA
We will retain ownership of, and title to, all Goods until you make payment in full. In the meantime, you will ensure that all Goods are stored in a way that clearly identifies the Goods as our property.
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.
You agree that we, our agents, and our employees may (on written notice) enter onto any premises you own or control for the purpose of inspecting and/or repossessing any Goods not paid for in full.
You hereby grant us a security interest over the Goods to secure your obligations to us under these Terms. If you 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 similar laws in any other jurisdiction, 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.
Your Obligations
You will provide to us, in a timely manner and at your cost:
access to your premises and to other facilities as we reasonably require in order to deliver the Goods and perform our obligations under these Terms; and
any documents, information or other materials that we may reasonably require to perform our obligations. You will ensure that the documents, information or materials are complete and accurate in all material respects.
Confidentiality
Except in the proper course of performing its duties under these Terms, neither party may disclose the other party's Confidential Information to any person without that party’s prior written approval. Each party shall ensure that its employees, contractors, officers and agents do not use the other party’s Confidential Information for any purpose that is not related to these Terms without written permission from the other party. Nothing in this clause prohibits disclosure of information which:
is in the public domain otherwise than as a result of a breach of confidence; or
is required to be disclosed by law or any government or governmental body, authority or agency having authority over a party to these Terms.
Intellectual Property
Unless otherwise agreed in writing between the parties, we will own all Intellectual Property Rights in the Goods and Services and all new Intellectual Property Rights that are developed, commissioned or created under or in connection with an Order as such rights arise.
Warranty And Liability
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.
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:
provide a refund; or
repair the Goods; or
replace the Goods or re-perform the Services.
Despite anything else contained in these Terms and to the maximum extent permitted by law:
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;
we will not be responsible or liable for any acts or omissions of any third parties;
Unless otherwise agreed in writing in an Order or on our website, any claim relating to the Goods and Services or returns must be made within 30 days of delivery of the Goods or supply of the Services and must be accompanied by a copy of our invoice. We may make a deduction to cover handling charges;
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, and 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;
the parties agree and acknowledge that the provisions of Part 3 of the Contract and Commercial Law Act 2017 will not apply;
to the fullest extent permissible by law, all warranties, conditions or other terms implied by law are excluded unless these Terms expressly provide or the parties agree otherwise in writing; and
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.
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.
We make no representations with respect to the Goods, and will not be liable for designs and specifications that do not meet any applicable code of compliance regulations or which do not fit appliances intended to be installed in conjunction with the Goods. You accept responsibility to ensure that any designs and specifications meet code of compliance regulations and/or fit any such appliances.
Miscellaneous
These Terms constitute the sole understanding of the parties in relation to its subject matter. They supersede all prior understandings, written or oral, which will be of no further force or effect. No alteration or variation or waiver of these Terms is binding unless we authorise it in writing. To the extent permitted by law, we may alter or change these Terms by notice to you.
You must not assign, subcontract or transfer any part of your rights or obligations under these Terms without our prior written consent. We may assign any rights or obligations without your approval as well as subcontract any obligations to third parties.
If any dispute arises between the parties arising out of or in connection with these Terms, or the Goods provided or Services performed, including any question about its existence, validity or termination, the party claiming a dispute must give notice in writing to the other party describing the nature of the dispute and the remedy sought. The parties must first seek to resolve such dispute by meeting and using good faith, reasonable endeavours to resolve the dispute.
If the dispute remains unresolved 20 business days after notice has been given, the dispute must be referred to and finally resolved by arbitration in accordance with the Arbitration Rules of the New Zealand Dispute Resolution Centre.
Notice may be given personally, posted or transmitted by email to the intended recipient at their last known address or email address.
A waiver of any provision of these Terms will not serve as a waiver of any other provision.
We will not be liable for any delay or failure in the performance of any of the obligations imposed by these Terms, to the extent that the failure is due to a Force Majeure Event.
These Terms are to be construed and governed by the laws of New Zealand and the exclusive jurisdiction of the courts of New Zealand.
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.
