TERMS AND CONDITIONS OF BUSINESS

  1. GENERAL
    1. Reference to “the buyer” shall mean the Customer and reference to “the seller” shall mean Pacific Health & Fitness Limited
    2. Reference to the "reseller" and/or "wholesaler" refers to a buyer who on sells products purchased from the seller to consumers.
    3. These terms and conditions constitute the whole contract between the seller and the buyer and supersede all previous communications either oral or written. Any quotation or tender by the seller shall be deemed to be subject to these terms and conditions. No term or condition contained in buyer’s acceptance or order shall add to amend or delete these terms and conditions or any of them unless expressly agreed in writing by a duly authorised officer or seller.
    4. It is the buyer’s responsibility when accepting this contract or ordering to ensure the goods ordered conform to buyer’s requirements and are suitable and sufficient for buyer’s purpose.
    5. Seller will not accept the return of goods for credit or any other purpose subject to Clause 6 below.
    6. Any quotation by the seller is not and shall not be construed as an offer capable of acceptance or as creating an obligation to sell.
    7. It is the buyer’s responsibility to obtain any approvals, licence or permits necessary for the performance of the contract.
    8. All descriptive specifications, performance figures, drawings, data, dimensions and weights furnished by seller or contained in catalogues, price list or advertisement are by way of general description only of the goods and shall not form part of the contract.
    9. It is the buyer’s responsibility to provide all information necessary to enable performance of the contract and the buyer shall be responsible for any costs arising directly or indirectly from any error or omission in that information or any delay in providing that information.
    10. If a customer cancels or alters any order or part order for special products or standard products with special materials at any time after the seller has received the order then the seller reserves the right to charge to the customer the charge of any special products or materials already acquired for the order together with the costs of any labour and tooling expended to the date of such cancellation or alterations. No returns of special products will be accepted.
    11. Failure by the buyer or the seller to meet any of the individual terms contained within does not render other terms and conditions as not enforceable.
  2. PRIVACY AUTHORITY
    1. Authorisation (Privacy Act 1993). The buyer authorises the seller to obtain such information as may be required in response to the customer's credit references. The customer also authorises the seller to provide credit information to third parties in response to credit reference enquiries.
  3. PRICE
    1. In the event that a product is mistakenly listed at an incorrect price, the seller reserves the right to refuse or cancel any orders placed for product listed at the incorrect price. The seller reserves the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is cancelled, the seller shall issue a credit to your credit card account in the amount of the incorrect price.
    2. Prices quoted are based on the full quantities specified and do not necessarily operate pro rata for any greater or less quantities.
    3. Retail prices are quoted including New Zealand G.S.T. Wholesale prices quoted are exclusive of New Zealand G.S.T. which when applicable will be charged to the purchaser.
    4. When a wholesaler purchases from the seller, the seller will ship direct to the wholesaler's customer at the request of the wholesaler and the wholesaler will be responsible for issuing an invoice to their customer. In the event a re-seller requests that the seller issue an invoice direct to the end user, the re-seller acknowledges that it is wholly and solely responsible for its tax obligations in regard to the transaction and indemnifies the seller for any costs incurred in relation to the breach of this clause by the re-seller and/or its tax obligations.
    5. Buyers based outside of New Zealand do not need to pay G.S.T.
    6. Prices quoted and this contract are based on present rates and costs of material, labour, freight, insurance, customs agents and carriers’ fees, government tariffs, duties and taxes and shall be subject to increase in respect of any variation in such rates or costs or the method of assessment of the same occurring before orders are shipped.
    7. In the event of the suspension of manufacture or supply or buyer’s instruction, or lack thereof, or due to the inability of buyer to accept the goods for any reason on or after the date on which they are ready for delivery, buyer shall be liable for all extra costs and losses thereby incurred by seller.
  4. TERMS OF PAYMENT
    1. The first invoice for a new account must be paid in full before goods are despatched.
    2. Prices quoted are strictly net and payment in full shall be made in accordance with the terms and before the 20th of the month following invoice.
    3. Default interest shall be paid by buyer on overdue accounts calculated on daily balances from the day following the day upon which payment should have been made, at the rate of eighteen (18%) per cent per annum and without any demand being necessary.
    4. Any expenses, costs or disbursements incurred by the Seller in recovering any outstanding moneys including debt collection agency fees or legal costs on a solicitor and client basis should be paid by the buyer.
  5. DELIVERY, RISK AND PROPERTY
    1. Unless otherwise agreed in writing the goods shall be delivered to the buyer at the seller's store or works. If the buyer refuses to take or accept delivery, then the goods shall be deemed to have been delivered when the seller was willing to deliver them.
    2. Seller may at its discretion agree to act as agent for buyer for delivery beyond store or works and all costs of carriage and insurance shall be paid by the buyer. The seller shall not be liable for any damages caused to the goods whilst they are in transit. The buyer shall at the buyer’s expense provide labour, cranes or forklift and reasonable access to point of delivery for offloading of goods without delay.
    3. Where the seller agrees to deliver the goods to the premises of the buyer and where the seller contracts with a carrier to do so, delivery of the goods to the carrier in all circumstances constitutes delivery to the buyer.
    4. Delivery of goods to buyer or to the carrier at the point of delivery shall constitute delivery to buyer and upon delivery to buyer risk of loss shall pass to buyer.
    5. The buyer will incur the cost of delivery being an additional charge to the invoiced price of goods.
    6. The buyer acknowledges that this agreement creates a security interest in the goods and equipment as security for the buyer’s obligations to the seller under this agreement and this security interest is registrable in the Personal Properties Securities Registry.
    7. If buyer resells the goods aforesaid, then as between the buyer and its purchaser, the buyer shall be principal and not agent of seller and the buyer shall account to seller for that part of the proceeds of sale as is equal to the price payable buy the buyer to seller in respect of such goods. Proceeds of sale shall then be received by the buyer as agent of the seller and on their account, such proceeds to be kept in a separate account.
    8. Seller may at its discretion make and invoice partial deliveries against an order and each such delivery shall be a separate sale under the terms and conditions of this contract.
    9. If after fourteen (14) days from the date on which the goods are ready for despatch, delivery is delayed for any reason beyond seller’s reasonable control, seller may store the goods at its premises or elsewhere and the cost of storage, handling and insurance shall be payable by buyer on demand by seller.
    10. No delivery may be deferred except with the written consent of seller.
    11. In addition to any lien to which seller may be entitled by statute or common law, seller shall in the event of insolvency of the buyer or winding up be thereupon entitled to a general lien on all property whatsoever owned by the buyer and in possession of the seller at the time of such lien, to cover the unpaid price of any goods supplied by seller to buyer.
  6. INSPECTION AND ACCEPTANCE
    1. Upon delivery of goods buyers shall inspect goods at their expense and give written notice to seller within five (5) days of delivery, or in the case of non-delivery, within 10 days after the order was placed, of non-conformity to description or the terms and conditions of this contract. Failure to give such notice shall constitute an irrevocable acceptance of the goods by the buyer.
    2. The seller will not accept the return of goods if they have been tampered with by you or any other person or if they are goods expressly sold on a non-return basis.
  7. FORCE MAJEURE
    1. Seller shall not be liable to buyer or otherwise for any infringement or unauthorised use of any patent, trademark, design, copyright or any other industrial property right arising out of performance of this contract. In case any dispute or claim is made in respect thereof seller may terminate this contract by notice in writing to the buyer without any liability on the part of the seller.
  8. PATENTS
    1. Seller shall not be liable to buyer or otherwise for any infringement or unauthorised use of any patent, trademark, design, copyright or any other industrial property right arising out of performance of this contract. In case any dispute or claim is made in respect thereof seller may terminate this contract by notice in writing to the buyer without any liability on the part of the seller.
  9. DEFAULTS
    1. Upon the happening of any of the following events:-
      1. The commission by buyer of any act of bankruptcy or buyer going into liquidation or a petition being presented for the sequestration of buyer’s estate or for the winding up of buyer; or
      2. The buyer being a company removed from the Register of Companies;
      3. The buyer assigning its property for the benefit of creditors or having a receiver or official manager appointed to any of its assets;
      4. The buyer failing to make any payment to seller on the due date; or
      5. The buyer being in breach of any of these terms and conditions.
        Then in any such event sellers shall without prejudice to any other remedies have the right to:
      1. Cease production of the goods; and/or
      2. Decline to deliver the goods or any balance of the goods still due under this contract; and/or
      3. Stop any goods in transit; and/or
      4. Otherwise cease to perform any of its obligations to buyer; and/or
      5. Terminate the contract without incurring any liability at law or in equity and without prejudice to the rights to recover amounts owing to it by buyer and/or damages; and/or
      6. Enter into any premises and repossess any goods already delivered and whether or not property in such goods has passed to buyer in respect of which entry buyer shall indemnify and keep indemnified seller for all damages for which seller may be responsible; and/or
      7. Recover from buyer the contract price together with default interest in accordance with Clause 3(b) of all goods delivered and for freight storage handling and any other expenses incurred by the seller; and/or
      8. Sell elsewhere and charge buyer with any resultant loss.
  10. LIMITATION OF LIABILITY
    1. The seller should not be liable for any special or consequential damages that result from the use of, or the inability to use, the materials on the Site or the performance of the products available on the Site, even if the seller has been advised of the possibility of such damages.
  11. GUARANTEES & WARRANTY DISCLAIMER
    1. The Site and the materials and products on the Site are provided "as is" and without warranties of any kind, whether express or implied, subject to the Consumer Guarantees Act 1993. To the fullest extent permissible by law, Pacific Health & Fitness Limited disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement. Pacific Health & Fitness Limited does not represent or warrant that the functions contained in the site will be uninterrupted or error free, that the defects will be corrected or that the Site or the server that makes the Site available is free from viruses or other harmful components. Pacific Health & Fitness Limited does not make any warranties or representations regarding the use of the materials on the Site in terms of the correctness, accuracy, adequacy, usefulness, timeliness, reliability or otherwise.
    2. Where the goods are of a kind ordinarily acquired for personal, domestic or household use or consumption in accordance with the Consumer Guarantees Act 1993 and the Consumer Guarantees Act 1993 applies to this Contract:
      1. If any of the goods fail to comply with any guarantee in the Consumer Guarantees Act, the seller will repair or replace those goods;
      2. Without excluding the seller's obligations under the Consumer Guarantees Act 1993, the customer acknowledges that the seller does not provide any Express Guarantees (as defined in that Act) other than those expressly confirmed by the seller in writing;
      3. If the goods are acquired by the customer for business purposes, the customer agrees that the Consumer Guarantees Act 1993 does not apply;
      4. If the customer supplies the goods in trade to a person acquiring them for business purposes, it must be a term of the Customer's contract that the Consumer Guarantees Act 1993 does not apply in respect of the goods; and
      5. If the customer supplies the goods to any person, the customer must not give or make any undertaking assertion or representation in relation to the goods without the seller's prior approval in writing, and the customer must give the person buying the goods such product information relating to the goods as the seller requires, and the customer agrees to indemnify the seller against any liability or cost incurred by the seller under the Consumer Guarantees Act 1993 as a result of any breach by the customer of these obligations.
    3. The following terms apply whenever the Consumer Guarantees Act 1993 does not apply to this contract, or where the following terms are not inconsistent with the Consumer Guarantees Act 1993:
      1. Defective goods or goods which do not comply with the contract may at the seller's discretion be repaired or replaced, or the price refunded;
      2. Any right which the customer may have to reject non-conforming or defective goods will only be effective if:
        1. The customer notifies the seller in writing within fourteen days following delivery and the seller is given the opportunity to inspect the goods; and
        2. The goods are returned unused, re-saleable and/or in the condition the customer received them;
        3. The seller will not repair or replace, or refund the price of any goods for so long as the customer is in default in relation to any amount owing.
      3. The seller accepts no liability for any claim by the customer or any other person, including without limitation any claim relating to or arising from:
        1. Any conditions, warranties, descriptions, representations, conditions as to fitness or suitability for any purpose, tolerance to any conditions, merchantability or otherwise, whether express or implied by law, trade custom or otherwise; or
        2. Any representatives, warranties, conditions or agreement made by any agent or representative which are not expressly confirmed by the seller in writing; or
        3. Any services forming part of the supply of the goods which have been performed by any third party; and the customer agrees to indemnify the seller against any such claim.
      4. In any event, the seller's liability under any claim shall not exceed the price of the goods.
    4. Nothing in these terms is intended to have the effect of contracting out of the provisions of the Consumer Guarantees Act 1993 except to the extent permitted by that Act, and these terms are to be modified to the extent necessary to give effect to that intention.
  12. MISCELLANEOUS
    1. This contract shall be governed and construed in accordance with the law of New Zealand.
    2. All notices to be served upon buyer shall be deemed to be duly served if left at or sent by ordinary prepaid post to the last known address of the buyer. Buyer shall be deemed to have received any notice two (2) days after posting.
    3. Buyers shall not assign any rights or obligations under this contract without the prior written consent of seller.
    4. No waiver by seller of any default of buyer in the performance of any obligation or condition of this contract shall be deemed to be a waiver of that or any other obligations or condition.
    5. The singular shall include the plural and vice versa, words importing any gender shall include every other gender and where there is more than one buyer buyers shall be bound to seller jointly and severally.
  13. NOTICE
    1. The seller may deliver notice to you by means of email, a general notice on the site, or by other allowable method to the address you have provided to the seller.
  14. INDEMNIFICATION
    1. Your use of the Site should be governed in all respects by the laws of New Zealand and not by the 1980 UN Convention on Contracts for the International Sale of Goods. You agree that jurisdiction over and the venue in any legal proceedings directly or indirectly arising out of or relating to the Site (including, but not limited to, the purchase of products from the Site) shall be in the Courts of New Zealand. Any cause of action you may have in respect to the Site (including, but not limited to, the purchase of products from the Site) must be commenced within one (1) year after the claim or cause of action arises. Pacific Health & Fitness Limited's failure to insist upon or enforce strict performance of any provision of these Terms and Conditions shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act in modifying any of these Terms and Conditions. Pacific Health & Fitness Limited may assign its rights and duties under this Agreement to any party at any time without notice to you.
  15. NOTICE
    1. You agree to indemnify and hold harmless the seller, its officers, directors, employees, agents, licensors and suppliers (collectively the "service providers") from and against all losses, expenses, damages and costs, including reasonable solicitor fees resulting from any violation of these Terms and Conditions or any activity related to your account (including negligent or wrongful conduct) by you or any other person accessing the site using your internet account or membership details.
  16. BRAND SELLING STANDARDS
    1. Where a brand distributed by the seller has its own selling standards, these will be published on our website with each product and must be adhered to by the buyer. Failure to adhere to sellings standards will result in loss of access to the brand of products.
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