'The seller' refers to Hitchon International Ltd (Trading as TopmaQ). 'The buyer' refers to any legal entity purchasing from the seller.
Where the seller accepts the buyer's order these terms and conditions (together with the acceptance) constitute the entire agreement between the seller and the buyer and it is expressly agreed that there are no other understandings, representations or warranties of any kind (express or implied) forming part of this contract. In particular:
Any condition contained in the buyer's order which is inconsistent with, qualifies or is contrary to these conditions shall have no effect unless that condition is expressly accepted in writing by the seller.
Any variation, waiver or cancellation of the buyer's order shall have no effect unless accepted in writing by the seller. Where the seller accepts cancellation the seller may levy a handling charge of up to 15% of the price.
Where the buyer and the seller agree to a variation in the quantity of the goods, the goods shall be priced either at the rate applicable to the original quantity or the revised quantity at the absolute discretion of the seller.
Formation of Contract
The seller's website and advertising only constitute an invitation to treat.
Ordering goods (online or otherwise) constitutes an offer by the buyer to buy in accordance with these terms and conditions.
The seller may or may not accept any buyers order for goods which are not held in stock by the seller at time the order is placed by the buyer.
The seller's acceptance occurs (and the contract is formed) when the goods are dispatched to the buyer.
Prices and Terms of Payment
Unless otherwise agreed in writing payment must be made by the buyer before delivery of the goods.
If credit is granted by the seller to the buyer, the buyer shall pay all amounts due to the seller by the 20th of the month following month of invoice.
All payments by the buyer to the seller shall be made in full, free of any deduction, setoff, counterclaim or legal or equitable claim howsoever arising.
If the seller fails to make any payment due under this agreement by the due date for payment, then the seller may, without limiting its other rights in respect of such default:
Stop delivery of the goods;
Charge interest on the amount unpaid at the rate of 15% per annum calculated on a daily basis from the due date for payment until payment in full is received by the seller, such interest being payable by way of liquidated damages and not as a penalty;
Sell the goods at such price and on such terms as the seller shall determine in which case the buyer will be liable to pay to the seller any difference between the amount received from such sale and the amount payable under this contract.
Charge against the buyer's credit card, the amount of the payment due.
The seller's prices are subject to alteration without notice and the price payable by the buyer for the goods ordered shall be the price ruling at the date the goods are dispatched for delivery to the buyer as stated on the invoice.
The seller's prices are inclusive of GST. Any other taxes, if chargeable, are payable by the buyer whether they are imposed or brought into force before or after acceptance of the buyer's order.
The seller reserves the right to dispatch the buyer's order in one delivery or by instalments. Failure to deliver any instalment shall not entitle the buyer to repudiate the contact as to any instalments already delivered.
Any quotations of delivery times by the seller are made in good faith but are estimates and the seller shall not be bound by such quotation.
The buyer shall pay the cost of delivery from the point of dispatch of the goods by the seller.
Shortages, Damages or Loss in Transit
Liability for shortages in the quantity of goods delivered is limited to making up the shortages. No claim for shortages in quantity will be allowed unless the customer gives notification of the shortage within 24 hours of the delivery and provides a reasonable opportunity for the seller to investigate the claim. Goods leaving the seller's premises are adequately packed. Claims for damage or loss in transit must be made against the carrier in the prescribed manner:
Prior to acknowledging delivery to the carrier the buyer must ensure that the complete consignment as per the carrier's note has been received.
Should there be a shortage or visible damage to outer packaging the carrier's note must be endorsed accordingly.
Within 24 hours of the receipt of consignment the buyer must ensure that all goods received are in good order and condition.
No claims will be considered after 24 hours of receipt of goods. While no liability for goods damaged or lost in transit will be accepted by the seller details of any claim should be advised to the seller.
Returns of Goods (unused product)
Goods supplied by the seller may be accepted for return within 30 days of the date of supply subject to the following:
Goods must be returned, at the buyer's expense, unused, in their original packaging, into the seller's store.
The buyer must provide proof of purchase.
Acceptance of the goods is conditional on an assessment to determine they are undamaged, and in good working order.
Upon acceptance of the return, the buyer will be issued a store credit for the full amount of the purchase price paid, excluding freight. The resulting credit may be used to offset the cost of any future purchase.
NO CASH REFUND WILL BE GIVEN.
Goods sold at 'disposal' or heavily discounted prices (eg. 40% + discount) will not be accepted for return.
All sales of goods by TopmaQ, except those used for business purposes, are governed by the provisions of the Consumer Guarantees Act.
Seller's Liability and Maintenance Guarantee
The buyer shall ensure that the goods ordered are fit and suitable for the purpose for which there are required and the seller is under no liability if they are not.
Subject to clause 7.3 the seller's liability in respect of any defect or failure of the goods or for any loss, injury or damaged attributable thererto is limited to the extent of clause 7.4. The seller shall not be liable to the buyer or any third party whether in tort or contact or in negligence or otherwise for any direct or consequential loss or damage attributed to defects in the goods nor in respect of conditions or warranties whether expressed or implied by statute or at common law or otherwise.
Where the buyer does not acquire the goods or hold itself out as acquiring the goods, for the purposes of a business then these conditions must be read subject to the provisions of the Consumer Guarantees Act 1993 which shall have full force and effect notwithstanding any contrary or inconsistent provision in these conditions. The Consumer Guarantees Act 1993 will NOT apply if the buyer acquired, or held itself out as acquiring the goods for the purposes of a business.
The goods are warranted against faulty workmanship or materials for 12 months from the date of purchase. Within the specified period the seller or its agents will repair or replace (at their discretion) any defect due to faulty workmanship or materials. This warranty shall not be valid if, having detected a fault, the user continues to operate the equipment. This warranty does not apply to any part of the goods which have been subject to misuse, neglect, alteration, incorrect installation, accident and to damage caused by transportation, flood, fire or acts of God. The seller's liability under this warranty is limited to repairing or replacing a part(s) without charge. The warranty is dependent upon the seller's inspection (or in the case of an electric motor the inspection by an electrical appliance serviceman nominated by the seller) to determine the defect in workmanship or materials. Goods returned to the seller for inspection, credit, refund, warranty or repair shall be delivered at the buyer's expense. The buyer must ensure that appropriate overload protection is installed when using electrical equipment supplied by the seller.
The seller's liability under this contract and the warranty in this clause is confined to the buyer named in this contract, it being agreed that the seller has no liability to any purchaser of the goods from the buyer in that the buyer's rights under the contract are not assignable without the prior written consent of the seller.
Property and Risk
Risk (including insurance responsibility) shall pass to the buyer on collection of the goods by the buyer or on the delivery by the seller or by the source to the buyer or his agent or to a carrier for delivery to the buyer.
Ownership of all goods sold by the seller ('the goods') is retained by the seller until full payment is received for amounts owing in respect of all goods supplied. This provision is designed to protect the seller in the event of the bankruptcy, receivership or liquidation of the buyer, a seizure of goods by a creditor of the buyer or default in payment.
Until full payment is made the buyer agrees to:
Enable the goods to be readily identifiable as the property of the seller.
Maintain the goods so supplied in good order and condition and to return the goods immediately if called upon to do so by the seller.
On a sale or other realisation of the goods the buyer shall identify and separately account for the proceeds of sale.
Prior to the buyer acquiring property in any goods the seller may at any time directly or by its agents or servants enter upon any land, premises or property where it believes such goods may be to inspect and/or remove the goods, by force if reasonably necessary. If the goods are removed then:
The right of the buyer or any agent of the buyer to possession of any goods and right to sell or otherwise dispose of the goods shall immediately and without the necessity of any notice terminate, and,
The buyer will reimburse, indemnify and hold harmless the seller, its employees and agents in respect of the cost (including legal costs on a solicitor-client basis), expenses, loss or damage (including such to any third parties) in respect of the exercise or attempted exercise of the seller's remedies and,
The seller may cancel any or all contracts with the buyer and the seller will not be liable to the buyer therefore, and,
All monies owing by the buyer to the seller on any account whatsoever shall become immediately due and payable, and,
The value of such goods seized shall be assessed as the lesser of current market value or the invoice value at the time of sale and may be subject to a restocking fee as for Return of Goods for Credit or Refund above. Any excess after satisfying all of the buyer's payment obligations (including under the indemnity) will be paid to the buyer.
Errors or Omissions
The seller is entitled at any time to correct all errors and omissions (whether clerical, computational or otherwise) in advertising, quotation, invoice or acknowledgement. Due to the seller's administrative processes, errors (if any) maybe discovered up to 30 days after the goods have been delivered to the buyer. The seller will notify the buyer promptly of any error or omission, discovered by the seller, and give the buyer the option of returning the goods for a full refund.
Description of Product
Modifications and improvements to the seller's products are constantly being made. Also, the seller relies on information from its suppliers and product manufactures. Description, illustrations and literature are therefore not binding on the seller. If the goods do not match the description on the seller's website, the buyer should inform the seller immediately so that the seller may take appropriate action.
The seller shall not be liable to the buyer for any loss or damage or indirectly arising out of or in connection to any delay in delivery of the goods, or failure to perform any term of this contract where such delay or failure is caused directly or indirectly by an act of God, fire, armed conflict, labour dispute, civil commotion, intervention of a government, inability to obtain labour, materials or facilities and accidents, interruptions of, or delay in transportation or any other cause beyond the seller's control.
The buyer shall be solely responsible for obtaining any necessary permits under and for compliance with all legislation, regulations, by-laws or rules having the force of law in connection with the installation and operation of the goods.
Personal Property Securities Act 1999
Until full payment has been received in respect of the goods supplied the buyer acknowledges and agrees that:
These terms and conditions constitute a security agreement for the purposes of section 36 of the Personal Property Securities Act 1999; and
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.
The buyer undertakes to:
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
Indemnify, and upon demand reimburse, the seller for all expenses incurred in registering a financing change statement on the PPSR or releasing any goods charged thereby;
Not register a financing change statement (in accordance with Regulation 9) or a change demand (in accordance with Regulation 10) without the prior written consent of the seller;
Give the seller not less than 14 days prior written notice of any proposed change in the buyer's name and any other change in the buyer's details (including but not limited to, changes in the buyer's address, facsimile number, email address, or business practice); and
Immediately advise the seller of any material change in its business practices of selling the goods which would result in a change in the nature of proceeds derived from such sales.
In the event that the buyer is in default of its obligations pursuant to this agreement the seller shall notwithstanding section 109 of the PPSA and in addition to the rights thereunder be entitled to remove and take possession of and sell (by auction, public tender, private sale or any other method which the seller might reasonably consider to be appropriate in the circumstances) the Collateral and for such purpose the buyer hereby gives the seller licence by its agents to enter into, and if necessary, to break into any building occupied by the buyer and as the agent of the buyer to enter upon any premise where the buyer might enter upon search for, remove and take possession of the Collateral without being liable in any way to the buyer or any person claiming under the buyer for so doing.
The buyer agrees that nothing in sections 114(1)(a), 133 and 134 of the PPSA will apply to this Agreement or the security created hereunder; and
Waives the debtor's rights pursuant to sections 120(2), 121, 125, 129, 131 and 132 of the PPSA and waives the debtor's rights to receive a copy of the verification statement confirming registration of a financing statement or a financing change statement relating to the Security Interest as created by this Agreement.
For the purpose of this agreement, Security Interest, Collateral and Perfected Security Interest have the meanings set out in s16 of the Personal Property Securities Act 1999.
The buyer agrees to pay to the seller all costs (including legal costs on a solicitor/client basis) of and incidental to the execution and discharge of this agreement and any of the securities and also all monies expended or charged by the seller as a consequence of default or which the seller considers in any way necessary to incur in the attempted protection, enforcement or attempted enforcement of the seller's rights and remedies pursuant to this agreement.
Disputes and Law
Any claim or dispute arising hereunder shall be subject to arbitration in accordance with the Arbitration Act 1996.
The contract including these terms and conditions of sale shall be governed by New Zealand Law.