Terms & conditions of Trade

1. Definitions

2. Acceptance

2.1 Any instructions received by the Seller from the Client for the supply of Goods shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Client has entered in this agreement, the Clients shall be jointly & severally liable for payment of the Price.
2.3 Upon acceptance of these terms and conditions by the Client the terms & conditions are irrevocable and can only be rescinded in accordance with these terms & conditions or with written consent of the Manager of the Seller.
2.4 None of the Sellers Agents or Representatives are authorised to make any representations, statements, conditions or agreements not expressed by the Manager of the Seller in writing nor is the Seller bound by any such unauthorised statements.

3. Goods / Services

3.1 The Goods &/or services are as described on the invoice, quotation, work authorisation or any other work commencement form as provided by the Seller to the Client.

4. Price and Payment

4.1 At the Sellers sole discretion, the price should be either:
a) The price indicated on the invoices provided by the Seller to the Client in respect of Goods supplied; or
b) The Sellers current price at the date of the delivery of the Goods according to the Sellers current price list; or
c) The Sellers quoted Price subject to clause 4.2, which shall be binding upon the Seller provided that the Client shall accept in writing the Sellers quotation within thirty (30) days.
4.2 Any variation from the plan of scheduled works will be charged for on the basis of the Sellers quotation and will be shown as extra’s on the invoice. Payment for all extras must be made in full at the time of completion.
4.3 Time for payment for the Goods shall be the essence and will be stated on the invoice, quotation or any other order forms. If no time is stated, then payment shall be on delivery of the Goods.
4.4 The Seller may withhold delivery of the Goods until the Client has paid for them in which event payment shall be made before the delivery date.
4.5 At the Sellers sole discretion, payment for approved Clients shall be made by instalments in accordance with the seller’s delivery/payment schedule.
4.6 At the Sellers sole discretion, for certain approved Clients payment will be due seven (7) days following the date of the invoice.
4.7 Payment will be made by eftpos, direct debit, or internet banking, or by other method as agreed to between the Client and the seller.
4.8 The Price shall be increased by the amount of any GST and other taxes or duties, which may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Seller.

5. Delivery of Goods

5.1 Delivery of the Goods shall be made to the Client directly at the clinic unless otherwise arranged.
5.2 Goods for delivery to the clients address, the client shall make all arrangements necessary to take delivery of the Goods whenever they are intended for delivery.
5.3 Delivery of the Goods to a carrier, either named by the client or failing such naming to a carrier at the discretion of the Seller, for the purpose of transmission to the Client, is deemed to be a delivery of the Goods to the Client.
5.4 The costs of carriage and any insurance which the client reasonably directs the seller to incur shall be reimbursed by the Client (without any set off or other withholding whatever) and shall be due on the date for payment of the price. The carrier shall be deemed to be the Client’s agent.
5.5 The Client should take delivery of the goods tendered notwithstanding that the quantity so delivered shall either be greater or less than the quantity purchased provided that:
a) such discrepancy in quantity shall not exceed 5%, and
b) the price should be adjusted pro rata to the discrepancy.
5.6 The Seller shall not be liable for any loss or damage whatsoever due to failure by the Seller to deliver the goods or any of them promptly or at all.

6. Risk

6.1 If the Seller retains title for the Goods nonetheless all risk for the Goods passes to the Client on delivery.
6.2 If any of the Goods are damaged or destroyed prior to title to them passing to the Client, the Seller is entitled, without prejudice to any of its other rights or remedies under these terms and conditions (including the right to receive payment off the balance of the price for the goods), to receive all insurance proceeds payable in respect of the Goods. This applies whether or not the Price has become payable under these terms and conditions. The production of these terms and conditions by the Seller is sufficient evidence of the Sellers rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.

7. Defects / Returns

7.1 The Client shall inspect the Goods on delivery and shall within seven (7) days of the delivery notify the Seller of any alleged defects, shortage and quantity, damage or failure to comply with the description or quote. The Client shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
7.2 For defective Goods which the Seller has agreed in writing that the Client is entitled to reject, the Sellers liability is limited to either (at the sellers discretion) replacing the Goods or repairing the Goods provided that the Client has complied with the provisions of clause 7.1.

8. Warranty

8.1 Subject to the conditions of the warranty set out and clause 8.2 the Seller warrants that if any defect in any workmanship of the Seller becomes apparent and is reported to the Seller within three (3) months of the date of delivery (time being of the essence) then the Seller will (at the Sellers sole discretion) repair the defect or remedy the workmanship.
8.2 The conditions applicable to the warranty given by clause 8.1 are:
a) The warranty shall not cover any defect or damage which may be caused or partly caused or arise through:
i. Failure on the part of the Client to properly maintain any Goods; or
ii. Failure on the part of the Client to follow any instructions or guidelines provided by the Seller; or
iii. Any use of any Goods otherwise than for any application specified on a quote or order form; or
iv. The continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
v. Fair wear and tear; any accident or act of God.
b) The warranty shall cease, and the Seller shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Sellers consent.
c) In respect of all claims the Seller shall not be liable to compensate the Client for any delay in either replacing or repairing the workmanship / goods or in properly assessing the client’s claim.
8.3 For Goods not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller shall be under no liability whatsoever except for the express conditions as detailed and stipulated in the manufacturer’s warranty.

9. Default & Consequences of Default

9.1 The Client will be in Default if it:
a) fails to pay an amount due under these Terms by the due date for payment;
b) commits a breach of any of its other obligations under these Terms, or the terms of any other contract it has entered into, or entered into in the future, with the Seller or one of the Seller’s related entities;
c) becomes insolvent, are wound up, have a receiver appointed, enter into any composition or arrangement with its creditors, do any act which would render it liable to be placed in liquidation or have a receiver appointed over its property, commit an act of bankruptcy, cease to be of full legal capacity, or die;
d) Goods that the Seller has retained title to are at risk; or
e) an event or series of events (whether related or not) occurs which, in our opinion, may cause a material adverse change in the Client’s ability to meet its obligations to the Seller under these Terms.
9.2 If the Client is in Default then the Seller may, at its sole discretion, do any one or more of the following:
a) charge the Client default interest at the rate of 7% per annum on any late payments calculated on a weekly basis from the due date until the date payment is received;
b) require the Client to remedy the default in the manner and within the period notified by the Seller;
c) require the Client to pay all amounts owing the Seller immediately;
d) suspend or terminate the Client’s account with the Seller;
e) enforce any security interest held by the Seller under these Terms;
f) exercise any rights that the Seller has under these Terms or that are available at law.
9.3 Where the Client is in Default, the Seller may suspend or terminate the Client’s account with the Seller at any time in its sole discretion. If the Client’s account is terminated, it must immediately pay to the Seller any amounts owing. Termination will not affect any of the Seller’s rights that have arisen before termination, and the Seller will not be liable to the Client for any loss or damage the Customer suffers as a result of the Seller exercising its rights under this clause.
9.4 The Client must pay the Seller’s costs (including legal costs, as between solicitor and client) of and incidental to the enforcement or attempted enforcement of its rights, remedies, and powers under these Terms.

10. Title

10.1 It is the intention of the Seller and agreed by the Client that property in the goods shall not pass until:
a) The Client has paid all amounts owing for the particular Goods, and
b) The Client has met all other obligations due by the Client to the Seller in respect of all contracts between the Seller and the Client, and the goods, or proceeds of the sale of Goods, shall be kept separate until the Seller shall have received payment and all other obligations of the Client are met.
10.2 Receipt by the Seller of any form of payment shall not be deemed to be the payment until that former payment has been honoured, cleared or recognised until the Sellers ownership of rights in respect of the Goods shall continue.
10.3 It is further agreed that:
a) Until such a time as ownership of the Goods shall pass from the Seller to the Client the Seller may give notice in writing to the Client to return the Goods or any of them to the Seller. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease.

11. Personal Properties Securities Act 1999

11.1 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
a) These terms and conditions constitute a security agreement for the purposes of their PPSA; and
b) A security interest is taken in all Goods previously supplied by the Seller to the Client (if any) and all Goods that will be supplied in the future by the Seller to the Client during the continuance of the parties’ relationship.
11.2 The Client undertakes to:
a) 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 financing change statement on the Personal Properties Security Register;
b) Indemnify, and on demand reimburse, the Seller for all expenses incurred and registering a financing statement or financing charge statement on the Personal Property Securities Register or releasing any Goods charged thereby;
c) Not register a financing change statement or change demand without prior written consent of the Seller;
d) Give the Seller not less than fourteen (14) days prior written notice of any proposed change in the Client’s name and/or any other change in the Clients details (including but not limited to changes in the Clients address, or phone number, or business practice); and
e) Immediately advised the Seller of any material change in its business practices of selling the Goods which would result in changing the nature of proceeds derived from such sales.
11.3 The Seller and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
11.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131, and 132 of the PPSA.
11.5 Unless otherwise agreed to in writing by the Seller, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA
11.6 The Client unconditionally ratifies any actions taken by the Seller under and by virtue of the power of attorney given by the Client to the Seller under clauses 11.1 to 11.5.

12. Intellectual Property

12.1 Where the Seller has designed or drawn Goods for the Client, then Copyright and all those designs and drawings shall remain vested in the Seller and shall only be used by the Client at the Sellers discretion.
12.2 The Client warrants that all designs or specifications supplied to the Seller or instructions given to the Seller, will not cause the Seller to infringe any patent, registered design or trademark in the execution of the Clients order.

13. Cancellation

13.1 The Seller may cancel these terms and conditions or cancel delivery of Goods and Services at any time before the Goods are delivered by giving written notice. If the Seller determines the Goods being cancelled to be a custom product, then the Seller will deny the Client’s cancellation request. On approval of the cancellation the Seller shall promptly repay to the Client any sums paid in respect of the price for those Goods. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation, and the Seller will deduct any out-of-pocket costs associated with the cancellation of the Goods, including but not limited to: (i) raw materials; (ii) work in progress; (iii) postage and handling fees; (iv) administration costs; and (v) disposal fees where applicable.

14. Privacy Act 1993

14.1 The client and the Guarantor/s (if separate to the Client) authorises the Seller to:
a) Collect, retain and use any information about the Client, for the purposes of assessing the Client’s creditworthiness or marketing products and services; and
b) To disclose information about the Client, whether collected by the Seller from the Client directly or obtained by the Seller from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection, notifying a default by the Client.
14.2 Where the Client is a natural person the authorities under (clause 15.1) authorities or consents for the purposes of the Privacy Act 1993.
14.3 The Client shall have the right to request the Seller for an opportunity to view a copy of any information about the Client retained by the Seller and the right to request the Seller to correct any incorrect information about the Client held by the Seller. This process will be at a time and place of the sellers choosing, within a reasonable time frame from when the request is made to the seller.

15 Clients Disclaimer

15.1 The Client hereby disclaims any right to rescind, or cancel the contract, to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Seller, and the Client acknowledges that he/she buys the goods relying solely upon his/her own skill and judgement and that the Seller shall not by bound or be responsible for any term, condition, representation or warranty given by the Manufacturer of the Goods, which warranty shall be personal to the Client and shall not be transferable to any subsequent Client.

16 Contractual Remedies Act

16.1 The provisions of the Contractual Remedies Act 1979 shall apply to the contract as if section 15(d) of the Contractual Remedies Act which states that nothing in the Contractual Remedies Act shall affect the Sale of Goods Act 1908, where omitted from the Contractual Remedies Act 1979.

17 Unpaid Sellers Rights to Dispose of Goods

17.1 In the event that the Seller retains possession or control of the Goods, and payment of the price is due to the Seller and the Seller has made demand; and writing to the Client for payment of the price in terms of this contract; and the Seller has not received the Price of the Goods, then whether the title and the Goods has passed to the Client or remained with the Seller, the Seller may dispose of the goods and also claim from the Client the loss to the Seller on any such disposal.

18 Consumer Guarantees Act 1993

18.1 This agreement is subject, in all cases except where the Client is contracting within the terms of a trade/business (which cases are specifically excluded), to the provisions of the Consumer Guarantees Act 1993.

19. Limitation of liability

19.1 Except to the extent that the law prevents the Seller from excluding liability and subject to clause 20.2, the Seller will not be liable for any loss or damage or liability of any kind whatsoever (including indirect loss or lost profit or business) whether suffered or incurred by the Client or another person and whether in contract, or tort, or otherwise and whether such loss or damage arises directly or indirectly from Goods provided by the Seller to the Client.

19.2 To the extent that the Seller is liable for any reason for any loss suffered or liability incurred by the Client arising from any breach of these Terms, as a result of the Goods provided by the Seller to the Client, or for any other reason, such liability is limited to the Price of the relevant Goods concerned.

19.3 Where a claim relates to defects in the Goods themselves, Orthotics NZ will offer repair, replacement or credit for those Goods (at its sole discretion) in accordance with the procedure outlined in clause 7 applies.

20 General

20.1 If any provision of these terms and conditions shall be invalid, and or
20.2 Illegal or unenforceable the validity of existence, legality and enforceability of the remaining provisions shall not be affected by or prejudiced or impaired.
20.3 All Goods and services supplied by the Seller are subject to the laws of New Zealand and the Seller takes no responsibility for changes in the law that affect the Goods and services supplied
20.4 The Seller shall be under no liability whatsoever to the Client for any indirect loss and/or expense (including loss of profits) suffered by the Client arising out of a breach by the Seller of these terms and conditions.
20.5 In the event of any breach of this contract by the Seller and the remedies for the Client shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Goods.
20.6 Neither party shall be liable for any default due to any act of God, terrorism, war, strike, lockout, industrial action, flood, storm or any event beyond the reasonable control of either party.
20.7 The Client shall not set off against the Price amounts due from the Seller.
20.8 The Seller may licence or subcontract all or any part of its rights and obligations without the Clients consent.
20.9 Updates will take effect from the date the Terms of Trade are revised on our website. The Seller will make revisions from time to time and once posted will be deemed to have informed all clients of these updates. Clients are advised to review the Sellers T &C’s from time to time in order to keep informed of any updates that may be in effect related to their transactions with the seller.