Terms of Sale - Vibe Media Limited

Terms and Conditions of Trade

1. Definitions

Business Day means any day other than a Saturday, Sunday, public holiday (as that term is defined in section 5(1) of the Holidays Act 2003) in Auckland, New Zealand.
Company means Vibe Media Limited, a limited lability company incorporated and registered in New Zealand with company number 9429046184467.
Confidential Information means information that:
1. is by its nature confidential;
2. is marked by a Party as 'confidential', 'in confidence', 'restricted' or 'commercial in confidence';
3. is provided by either Party, or a third party 'in confidence';
4. a Party knows or ought to know is confidential; or
5. is of a sensitive nature or commercially sensitive to a Party; and
6. includes the terms of the Contract.
Contract means the contract formed in accordance with clause 3.1, comprising the Terms and the content of the particular Order.
Customer means the person, firm, company or corporate entity that places an Order for Goods from the Company, which is accepted by the Company and a Contract is formed, in accordance with these Terms.
Default Rate means 12% per annum.
Delivery means, in the case of Goods, the delivery of the Goods to the Delivery Location (in the Company’s reasonable opinion) as set out in clause 6.
Delivery Location means the location or address for delivery as recorded in a Quote, an Order or as specified by the Customer in writing.
Force Majeure Event means an event that is beyond the reasonable control of the Party immediately affected by the event, including but not limited to:
1. acts of God, lightning strikes, earthquakes, tsunamis, volcanic eruptions, floods, storms, explosions, fires, pandemics, epidemics and any natural disaster;
2. acts of government authority, whether lawful or unlawful;
3. acts of war (whether declared or not), invasion, actions of foreign enemies, military mobilization, requisition or embargo;
4. acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage, rebellion, insurrection, revolution or military usurped power or civil war; or
5. contamination by radioactivity from nuclear substances or germ warfare or any other such hazardous properties.
For the avoidance of doubt, a Force Majeure Event does not include any risk or event that the Party claiming could have prevented or overcome by taking reasonable care.
Goods means the goods, products or materials (including components of the same) specified in an Order to be supplied by the Company to the Customer.
GST means goods and services tax payable pursuant to the Goods and Services Tax Act 1985, at the rate prevailing from time to time.
Guarantee means a guarantee in a form requested by the Company from time to time.
HSWA means the Health and Safety at Work Act 2015 and includes any other relevant health and safety laws, orders, regulations and standards.
Intellectual Property Rights means all intellectual property rights and interests (whether existing in statute, common law or in equity), including copyright, know-how, trade secrets, trademarks, trade names, domain names, designs, patents and other proprietary rights, recognized or protected by law.
Order means an order for Goods placed by the Customer from time to time.
Parties means the Company and the Customer and Party means either one of them.
Personnel means all individuals engaged by or associated with either Party in relation to these Terms, including a Party’s directors, employees, subcontractors and agents.
PPSA means the Personal Property Securities Act 1999.
PPSR means the Personal Property Securities Register as established under section 139 of the PPSA.
Price means the price payable by the Customer to the Company for the provision of Goods under a Contract.
Quote means a valid, written quote provided by the Company to the Customer.
Specifications means any technical or other specifications relating to the Goods attached to or referred to in a Quote or an Order.
Terms means these terms and conditions as amended from time to time.
Website means store.madfit.co or any associated sub-link of this URL.

2. Interpretation

References to the Parties include their respective executors, administrators, successors and permitted assignees.
References to the words including, include or similar words do not imply any limitation and are deemed to have the words without limitation following them.
An obligation not to do anything includes an obligation not to suffer, permit or cause that thing to be done.
References to a statute or statutory provision means a New Zealand statute or statutory provision and shall include all statutes or statutory provisions amending, consolidating or replacing that statute or statutory provision referred to, and any regulations, codes, orders in council and other instruments issued or made under that statute or statutory provision.
References to written or in writing shall include all modes of presenting or reproducing words, figures and symbols in a visible form (including via email).
References to time and dates are to time and dates in New Zealand.
References to $ are references to New Zealand dollars.

3. Application of Terms

3.1 Subject to clause 3.3, a Contract is formed when the Company accepts an Order placed by the Customer. The Company can accept an Order verbally, in writing or by Delivery of the Good.. In addition to these Terms, a Contract includes the terms of each Order and any Specifications unique to an Order.

3.2 The Customer will be deemed to have accepted these Terms by placing an Order as set out in clause 3.1 or by accepting the Goods.

If the Parties have entered into a contract for the provision of the Goods which has been subject to effective negotiation between the Parties (Negotiated Contract), the terms of that Negotiated Contract will apply and prevail over any other terms and conditions (including these Terms).
In the absence of a Negotiated Contract, these Terms will apply and will prevail over any other terms and conditions in existence, unless otherwise agreed between the Parties in writing. The Company will not provide the Goods on any other terms and conditions unless otherwise agreed in writing, including any Customer’s terms.
The Company may, at its sole discretion, require the Customer to provide a Guarantee. The Company reserves its right to not commence work on any Order unless and until the fully executed Guarantee has been provided by the Customer to the Company.

4. Orders

4.1 The Customer may place an Order with the Company via phone call, text message, email or otherwise, requesting the Company’s delivery of the Goods.

4.2 Upon receipt of an Order from the Customer the Company may request further information from the Customer in respect of the Order (if necessary). The Customer must provide reasonable information, support and direction to the Company in order to clarify an Order.

4.3 Once placed, the Customer may not cancel an Order, unless with the written consent of the Company.

5. Title and Risk

5.1 Title to the Goods will remain with the Company until all amounts owing to the Company by the Customer under a Contract have been paid in full.

5.2 Risk in and of any loss or damage to the Goods passes to the Customer on Delivery.

5.3 The Parties acknowledge that the Contract creates a security interest pursuant to the PPSA and the Company may register a security interest on the PPSA over the Goods supplied to the Customer by the Company.

has no rights under sections 114(1)(a), 116, 120(2), 121, 125, 126, 127, 129, 131, 133, and 134 of the PPSA; and
waives its rights under the PPSA to receive a copy of any verification statement.

6. Delivery

6.1 Delivery will be deemed to have taken place when the Company delivers the Goods to the Delivery Location.

6.2 The Company will use its reasonable endeavours to pack and protect the Goods against damage and deterioration (at the Customer’s expense), but the Company will not be liable for any damage to the Goods which occurred during Delivery or transit.

6.3 If the Company provides an estimated delivery date, the Company will use its reasonable endeavours to meet that delivery date, however the Company will not be liable for any loss or damage suffered by the Customer or any third party for failure to deliver the Goods by that date.

6.4 Unless otherwise agreed in writing or recorded in a Quote, the Company will arrange Delivery.

7. Inspection

7.1 The Customer must inspect and accept or reject (as the case may be) the Goods no later than three Business Days after Delivery.

7.2 The Customer must immediately inform the Company of any shortfall, damage or other issues relating to the Goods. (Issues).

7.3 If the Customer fails to inform the Company of any Issues, the Customer will be deemed to have accepted the Goods as complying with an Order and the Company will have no liability to the Customer. In all other cases, clause 13 will apply.

8. Price

the Price included in a Quote (if any); or
as noted on the invoice provided by the Company to the Customer in respect of the Goods provided performed.

8.2 The Company may require the Customer to pay a deposit. Despite clause 9.1, the Customer must pay any deposit immediately on receipt of the Company’s invoice relating to the deposit. The Company reserves its right to not commence work on any Order unless and until the deposit has been received by the Company.

the Customer’s instructions being complete and accurate;
the Customer providing any information or instruction the Company requires in a timely and efficient manner; and
no unforeseen circumstances arising.

8.4 Unless otherwise specified in writing or in a Quote, GST, delivery/freight, handling, packaging, insurance (if applicable) and any other costs directly related to the provision of the Goods will be added to the Price.

9. Payment

9.1 The Company will invoice the Customer either prior to Delivery at the Customer's selection of the Goods, following Delivery of the Goods or at the end of the month for Goods delivered during that month (at the discretion of the Company).

9.2 The Customer shall pay the Price as shown in the cart on the Company’s Website (when prompted) which will cover the Price of the Goods selected in full.

9.3 Unless otherwise agreed by the Company, the Customer’s payment must be made by credit card or direct credit to the bank account specified in the Company’s invoice.

charge interest on the outstanding amount at the Default Rate (calculated daily) until payment is made in full;
charge the Customer any debt collection and legal costs on a solicitor-own client basis;
suspend the supply of further Goods to the Customer under clause 11; or
enter the premises at the Delivery Location and retake possession of the Goods.

10. Warranties

the Goods will comply and conform with any Specifications included in a Quote, an Order or agreed between the Parties, will be fit for any purpose that the Customer makes known to the Company and will comply with all applicable legislation, regulations and codes of practice;
the Goods will be appropriately packaged, packed and securely stored until Delivery to minimise the risk of damage, deterioration and theft;
at the time of Delivery, the Goods will be free of any lien, encumbrance or security interest (as defined in the PPSA);
the Goods will, for at least six months from the date of Delivery, be fit for the expected use and purpose and be free from any defect in design, materials, workmanship or title; and
the Company owns or has licensed all Intellectual Property Rights relating to the Goods required for the Goods to be provided to the Customer and neither the Goods, nor the provision or use of the Goods will breach any Intellectual Property Rights.

11. Suspension and Termination

the Customer fails to pay any invoice when due;
any credit limit the Company has agreed to grant to the Customer is or is likely to be exceeded;
the Company has any concerns about the Customer’s creditworthiness; or
the Company otherwise determines that it is necessary to suspend the supply of Goods.

11.2 Any costs incurred by the Company as a result of a suspension pursuant to clause 11.1 will be immediately due and owing by the Customer to the Company.

the other Party’s default under a Contract which is not capable of remedy or where the breach is capable of remedy, but the other Party fails to remedy the breach within 10 Business Days of receiving written notice specifying the breach and requiring it to be remedied; or
the other Party becoming insolvent, or being subject to the appointment of a receiver, manager, liquidator, or statutory manager, or committing an act of bankruptcy, or making a scheme of arrangement with its creditors.

11.4 The Company may, without cause, terminate any Contract by giving the Customer 10 Business Days written notice. In the event that the Company exercises its rights pursuant to this clause 11.4, the Contract will terminate and any outstanding Orders at the end of the period of notice will be deemed cancelled other than in a case of termination pursuant to clause 11.3, where any outstanding Orders will terminate immediately.

11.5 Upon termination of a Contract (for whatever reason) the Customer shall, within twenty (20) Business Days of the date of termination, pay to the Company all sums due and owing to the Company under all Contracts. Termination of the Contract will not affect any accrued rights or obligations of either Party.

11.6 The Parties agree that the provisions of clauses 5 and 10 to 20 survive termination or expiry of the Contract.

12. Force Majeure

12.1 The Company will not be liable to the Customer for any failure to perform its obligations under the Contract to the extent the failure is due to a Force Majeure Event.

the nature of the circumstances giving rise to the Force Majeure Event;
the extent of the Company’s inability to perform under the Contract;
the likely duration of that non-performance; and
details of what steps are being taken to minimise the impact of the Force Majeure Event on the performance of the Contract.

12.3 If the Company is unable to perform any obligations under the Contract for 20 Business Days or more due to a Force Majeure Event, the Customer may terminate the Contract immediately by giving notice to Company.

13. Liability

repair or replacement of the Goods; or
the total Price of the relevant Goods paid to the Company by the Customer at the election of the Company.

13.2 If the Company is held liable to the Customer or any other person for any reason, the Company’s total liability under a Contract whether arising in contract, tort (including negligence) or otherwise, is limited to the aggregate sum of $100,000.

13.3 Despite anything else in these Terms, neither Party will be liable whether arising in contract, tort (including negligence) or otherwise, for any loss of profits or any indirect or consequential loss or damage arising out of these Terms.

14. Disputes

14.1 The Parties must use reasonable endeavours to resolve any and all disputes arising under or relating to a Contract by negotiation. If a dispute is settled at or following negotiations under this clause 14, such settlement shall be recorded in writing and be signed by the Parties, whereupon it shall be final and binding on the Parties.

for interlocutory relief;
to recover a debt payable; or
to enforce a settlement agreed to by the Parties.

15. Consumer Guarantees and Fair Trading

15.1 The Parties agree and acknowledge that the Consumer Guarantees Act 1993 (CGA), the Fair Trading Act 1986 (FTA), and other statutes may impose warranties, conditions or obligations on the Company which cannot by law (or which can only to a limited extent by law) be excluded.

15.2 Other than as expressly provided for in these Terms, the Company excludes all such imposed warranties, conditions or obligations to the extent permitted by law and excludes any warranty, condition or obligation imposed or implied under common law, equity or otherwise.

the Customer is acquiring the Goods for the purposes of a business pursuant to sections 2 and 43(2) of the CGA and accordingly the CGA will not apply; and
all warranties, conditions, and other terms implied by the CGA or sections 9, 12A, and 13 of the FTA are excluded from the Contract to the fullest extent permitted by law and the Parties further acknowledge and agree that it is fair and reasonable that the Parties are bound by this clause 15.

16. Confidentiality and Collection of Information

if the Contract authorizes disclosure of the Confidential Information;
if the other Party gives prior written approval to the use or disclosure;
if the use or disclosure is required by law; or
in relation to disclosure, if the information has already become public, other than through a breach of the obligation of confidentiality by one of the Parties.

are aware of the confidentiality obligations in these Terms; and
do not use or disclose any of the other Party's Confidential Information except as allowed by a Contract.

16.3 The Customer consents to the Company’s collection, use and disclosure of the Customer’s personal information for purposes in connection with the Company’s provision of the Goods including, but not limited to, carrying out credit checks on the Customer with a credit reporting agency. The Company will comply with its obligations under the Privacy Act 2020 in respect of its collection, use and disclosure of the Customer’s personal information.

17. Health and Safety

each ensure they comply with their respective obligations under the HSWA; and
consult, cooperate and coordinate as far as reasonably practicable with each other and any other person who has health and safety obligations in connection with their obligations under the HSWA.

18. Intellectual Property

18.1 All Intellectual Property Rights owned by either Party and existing immediately prior to the point on which the Contract was formed will remain the exclusive property of that Party.

18.2 The Customer agrees that all new Intellectual Property Rights that arise or are created by the Company or any of the Company’s Personnel in the course of supplying the Goods will be owned by the Company.

18.3 The Customer grants to the Company a non-exclusive, non-transferable, revocable, royalty-free licence to use the Customer’s Intellectual Property Rights, if required by the Company in order to deliver the Goods under a Contract.

19. Notices

19.1 All notices and other communications to be given under a Contract must be in writing in English and be addressed to the Party to whom it is to be sent at the physical address or email address from time to time designated by that Party in writing to the other Party.

at the time of delivery, if delivered by hand;
three Business Days after the date of mailing, if sent by ordinary post within New Zealand; or
if sent by email, on the date and time at which it enters the recipient's information system, as evidenced (if required by the recipient, where delivery is disputed) in a confirmation of delivery report from the sender's information system which indicates that the email was sent to the email address of the recipient.

19.3 Any notice or communication received or deemed received after 5.00pm or on a day which is not a Business Day in the place to which it is delivered, posted or sent will be deemed not to have been received until the next Business Day in that place.

20. General

20.1 A Contract or, if clause 3.3(a) applies, the terms of the Negotiated Contract, comprise the entire agreement of the Parties in relation to the supply of Goods and supersedes any previous discussions, arrangements and representations between the Parties.

20.2 Nothing in the Contract should be interpreted as constituting either the Company or the Customer, an agent, partner or employee of the other and neither Party will have the authority to act for or to incur any obligation on behalf of the other Party except as expressly provided for in the Contract.

20.3 The Company will not be deemed to have waived any right under these terms unless the waiver is in writing and signed by the Company. A failure by the Company to exercise a right, including a delay in exercising any right, will not operate as a waiver of that right. Any such waiver will not constitute a waiver of any subsequent or continuing right or of any other provision of these Terms.

20.4 The Customer may not assign, subcontract or otherwise transfer any of its rights, benefits or obligations under the Contract without the prior written consent of the Company. A change in the management or control of the Customer or the sale of a major part of the Customer’s business or assets will be deemed to be an assignment for the purposes of this clause 20.4.

20.5 Each Party agrees that it will, at all times, comply with all laws, regulations and orders in carrying out its obligations under a Contract.

it has full power and authority to agree to enter into and bind itself to a Contract;
all consents, authorisations and approvals that are necessary or required for that Party in connection with a Contract, and the assumption of rights and obligations under them, have been obtained or effected; and
the agreement to and performance pursuant to a Contract does not constitute a breach of any law or obligation by which that Party is bound and which would prevent it from agreeing to or performing its obligations under a Contract.

20.7 If any provision of the Contract is found by a court or other competent authority to be void or unenforceable, such provision will be deemed to be deleted from the Contract and the remaining provisions of the Contract will continue in full force and effect.

20.8 The Company may amend a Contract or these Terms from time to time by giving notice to the Customer in writing. Any amendment to a Contract or these Terms will apply to any subsequent Order or Contract (as the case may be) after the Company notifies the Customer of the amendment. A Contract or these Terms may otherwise be amended or varied in writing and signed by each Party.

20.9 The Contract, and any claims arising out of or in connection with it or its subject matter or formation (including non-contractual claims), will be governed by and construed in accordance with the laws of New Zealand and the Parties irrevocably submit to the exclusive jurisdiction of the courts of New Zealand for any matter arising under or relating to the Contract or its subject matter or formation or the relationships established by it (including non-contractual claims).

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Terms of Sale - Vibe Media Limited

Terms and Conditions of Trade