Totally Vets Ltd uses all reasonable skill, care and effort in its provision of Products and Services. The following document details the Terms by which Totally Vets Ltd provides all Products and Services to Buyers unless otherwise agreed in writing. In the event of any conflict between these Terms and any subsequent written agreement, the terms of the subsequent agreement prevail.
Totally Vets Ltd may at any time amend any of the Terms with immediate effect by posting the amended Terms on the Company’s website and referring to the Terms on the Buyer’s invoice. By continuing to order Products and Services, the Buyer is deemed to have accepted the amended Terms. It is the Buyer’s responsibility to ensure they are familiar with the version of the Terms that applies at any given time.
1. Defined Terms
“Goods” means all products or services supplied from time to time by us to you. “Order” means any oral or written instruction or direction you give us to supply Goods to you.
“CGA” means Consumer Guarantees Act 1993 as amended or substituted.
“us” “our” or “we” means Totally Vets Ltd.
“you” “your” “the Customer” or “the Buyer” means the person making an Order for the supply of Goods or the entity on which that person purports to act on behalf of.2. Terms of contract
Any goods supplied to you shall be subject to these Terms of Trade unless otherwise agreed in writing by us.
3.1 Each Order will constitute your acceptance of these Terms of Trade and our acceptance of your Order will create a binding contract.
4.1 Unless otherwise agreed in writing any quoted price may be altered prior to delivery of the Goods to you, or before completion of services by us, if our costs fluctuate materially. A cost fluctuation will be a material fluctuation for the purposes of these Terms of Trade, if the fluctuation has the effect of increasing the median gross acquisition cost of the Goods, or of the services obtained by us by a factor of 5% or more. We may withdraw any quotation before it is accepted, and any quotation will lapse 30 days after it is given without notice. GST will be payable by you as an additional amount on all prices and charges.
4.2 The price for Goods will be either as quoted to you in writing or, if no written quote is provided, levied pursuant to our standard charges applying at the time, notice of which you are hereby deemed to have received.
5.1 Unless otherwise agreed in writing you must pay for Goods on the 20th day of the month following our issuing the invoice (“the due date”)
5.2 If full payment for the Goods is not received on or by the due date, then without prejudice to any other remedies available to us:
(a) We may cancel this contract or withhold supply of any further Goods;
(b) We may charge interest on any amount outstanding to us on a daily basis at a rate of 1.5% per month compounding during such default (“penalty interest”) until the amount outstanding is paid to us in full. Penalty interest shall continue to accrue both before and after judgment. You shall be responsible for all costs incurred by us in recovering such monies on an indemnity or solicitor/client basis including an administration fee for the administration required by us in relation to your default.
5.3 Your obligation under these Terms shall be to pay the full amount owing under these Terms free of all deductions or rights of set off.
5.4 We may at our sole discretion allocate any payment received from you towards any amount outstanding to us by you at the time of receipt or at any time afterwards.
5.5 When paying by credit card a fee of 1.5 per cent (of your payment amount) may be applied.
6.1 Ownership in the Goods shall not pass upon delivery, but shall remain with us until full payment of all monies owing by you to us has been made. Until all monies have been paid:
(a) You hold the Goods supplied as fiduciary for us and will deal with them as our agent for and on behalf of us (but will not hold yourself out as our agent to any third parties);
(b) If you resell the Goods supplied the proceeds of any resale will belong to us, and you will pay the same into a separate account for which separate records are kept, and all claims which you hold against third parties will be immediately assigned, and are hereby deemed assigned, to us;
(c) You irrevocably give us and our agents the right to enter your premises, or any place where we may reasonably believe you to have stored the Goods, to remove any of the Goods supplied and to resell them;
(d) If any of the Goods become part of a product or mass such that the identity of those Goods is lost in the product or mass, the security interest created by this clause continues in the product or mass in accordance with the provisions of the PPSA.
(e) If any of the Goods are installed in, or affixed to, and become an accession to, other goods, the security interest continues in the accession in accordance with the provisions of the PPSA.
7.1 Except to the extent of written warranties given by us to you, all warranties and representations in respect of Goods are excluded, including (to the extent permitted by law) those expressed or implied by law.
7.2 We shall not be liable:
(a) Where you have altered or modified the Goods, mis-applied the Goods, or have subjected them to any unusual or non-recommended use, servicing or handling;
(b) For loss caused by any factors beyond our control;
(c) For any indirect or consequential loss of any kind;
(d) Where the terms of any written warranty have not been complied with, the operating specifications/directions contained in any manufacturers’ handbook provided to you have not been complied with.
7.3 Our total liability under any warranty for defective or damaged Goods supplied by us or in relation to the provision of services is limited at our option to either:
(a) Replacing or repairing the defective or damaged Goods at our cost; or
(b) Refunding the price of the defective or damaged Goods or provision of service.
8. General Terms
If a dispute arises, the parties will try to settle the dispute by mediation by a single mediator, before resorting to litigation or arbitration. Any party may initiate mediation by giving written notice to the other (“mediation notice”). The mediator should be agreed upon by the parties, but if the parties cannot agree on a mediator within fourteen days after service of the mediation notice, then the President for the time being of the Manawatu District Law Society shall be asked to appoint the mediator.
If you have paid a deposit, and then cancel an order, we may retain any deposit paid. If any quotation is accepted and for any reason you determine subsequent to acceptance of the quotation that the Goods are no longer required then we shall have legal remedies against you including but not limited to damages. We shall have the right to cancel any orders for Goods under any contract entered into if, due to circumstances beyond our control, it would be impractical or unreasonable to fulfil the order, if any information supplied is materially incorrect or if, in our opinion, a satisfactory job cannot be achieved.
8.3 Return and Use of Products
Returns are evaluated by Totally Vets Ltd on the reason for return in line with our obligations under current New Zealand consumer legislation. If the return is accepted, the Buyer will be provided with a full refund (less shipment and other expense incurred by us) for Non-refrigerated products so long as such products are unopened and undamaged and are returned within 14 days of purchase. Refrigerated products are non-refundable for safety reasons.
8.4 Waiver or variation
Waiver or variation of these Terms of Trade by us will only be effective if given in writing by an authorised person. If we waive any of these Terms of Trade the waiver will not affect our rights under these Terms of Trade at any future time.
8.5 Governing law
These Terms of Trade will be interpreted in accordance with and governed by the laws of New Zealand and the New Zealand courts will have non-exclusive jurisdiction in respect of all matters between us.
8.6 The Privacy Act
To the maximum extent permitted by law, you and any guarantor (if relevant) authorise us to collect and hold personal information from any source we consider appropriate to be used for the purposes of determining credit worthiness, for communicating promotional activities and product information, for debt collection purposes, or for any other related purpose. You further authorise us to disclose such information for the purposes set out above to any other parties. You are advised that you have a right of access to any personal information about you held by us, and may request correction of personal information held by us about us.
8.7 Consumer Guarantees Act
To the maximum extent permissible at law the provisions of the CGA are excluded. In no circumstances shall the provisions of the CGA apply to any Goods acquired for business purposes.
8.8 Use of the Company’s Name
Prior written consent is required by us before any public reference to the Company or the Company’s provision of Goods is made by you. This includes use of the Company’s name in any advertising and promotional material.
8.9 (a) If any provision of these Terms of Trade are invalid, void, illegal or otherwise unenforceable the remaining provisions will remain valid, and enforceable.
(b) Unless otherwise provided in writing, these Terms of Trade will take precedence over any subsequent arrangement, representation or oral agreement.
(c) We may license, sub-contract, or assign any rights and obligations under these Terms of Trade without your consent, including any debt owing to us by you. You must not assign all or any of your rights or obligations under these Terms of Trade without our written consent.
(d)Neither party will be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond our reasonable control.
(e) Any error or omission by you or us in these Terms of Trade, or any quotation will be subject to correction by us.
(f) Failure by us to enforce any of the terms, conditions and obligations in the Terms of Trade will not be deemed to be a waiver of such terms, conditions and obligations by us. Waiver of these Terms of Trade by us will only be effective if given in writing to you by an authorised person. If we waive any of these Terms of Trade the waiver will not affect our other rights under these Terms of Trade and any waiver will only apply for the time specified in writing or if no time is specified will apply until we give notice that such write is no longer waived by us.
9.1 All quotations will remain open for acceptance at any time within a period of 30 days from the date the quotation is submitted to you.
9.2 A quote acceptance form may be required prior to work commencing on site.
9.3 If we are contracting with a private company we retain the right to require a personal guarantee as provided within these Terms of Trade from the directors of that company prior to us providing Goods.
9.4 Unless otherwise recorded in writing time shall not be of the essence within any contract and we shall not be liable for any delay in completion or non-completion of the contract due to the unavailability of stock or other factors arising directly or indirectly out of any circumstances beyond our control.
9.5 In the event there is any inconsistency between the Terms of Trade and any quote then the quote shall take precedence.
10.1 Any notices required under these Terms of Trade must be served pursuant to the Property Law Act 2007 and the Companies Act 1993, or by email, in which case notice is deemed to be given on the day of sending. For the purpose of providing notice via email, our email address is email@example.com and the Customer is advised from time to time.
11.1 If you at any time upon or subsequent to entering into these Terms of Trade, are acting in the capacity of a trustee of any trust (“Trust”) then regardless of whether we have notice of the existence of the Trust, you covenant with us as follows:
(a) The contract extends to all rights of indemnity which you now or subsequently may have against the Trust and the trust fund;
(b) You have full authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of you against the Trust or the trust fund. You will not release the right of indemnity or commit any breach of trust or be a party to any action which may prejudice that right of indemnity.
12. Intellectual Property
12.1 Where we have designed, drawn or written plans the copyright in all such designs, drawings, documents and plans will remain vested in us and are only used by you at our sole discretion. Under no circumstances may such designs, drawings, documents and plans be used without our prior written consent.
13. Privacy Act 1993
13.1 You authorise us to:
(a) Access, collect, retain and use any information about you (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing your creditworthiness or for the purpose of marketing products to you; and
(b) Disclosure information about you, whether collected by us from you directly or obtained by us 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 or notifying a default by you.
14. Unsolicited Electronic Messages Act 2007
14.1 You hereby provide your express consent to receiving from us commercial electronic message, in any form pursuant to the Unsolicited Electronic Messages Act 2007.