1. DEFINITIONS
1.1 In this Contract, unless the context otherwise requires capitalised terms have the meaning set out below:
(a) “Business Days” means a day on which banks are open for business in New Zealand other than a Saturday, Sunday, or public holiday.
(b) “Customer” means the person/s, entities (including but not limited to, partnerships and/or a trust and where applicable shall include the Customer’s executors, administrators, successors and permitted assigns) or any person with written consent given by the Customer to act on the Customer’s behalf to request the Manufacturer to provide Good and Services as specified in any quotation, purchase order or other documentation.
(c) “Gift Card/s” means a document that states a designated amount in New Zealand Dollars ($NZD) available for purchase by the Customer from the Manufacturer, which shall be used by a third-party recipient (end user) within a certain timeframe, conditions apply, as per clause 5.
(d) “Products” means any Products supplied to the Customer by the Manufacturer and as specified in any Contract, order, or any other documentation.
(e) “Services” means all Services (including any documentation, related goods, advice, consultancy) supplied by the Manufacturer to the Customer, and are as described on the invoices, order forms or authorisation form or any other forms as provided by the Manufacturer to the Customer.
(f) “Price” means the Price due under this Contract for the supply of Products and/or Services, as agreed between the Manufacturer and the Customer and (if applicable) shall include any Goods and Services Tax (“GST”) payable, in accordance with clause 2.
(g) “Manufacturer” means Eezapet Petcare Limited, its successors, and assigns.
2. ACCEPTANCE
2.1 This Contract becomes legally binding between the two parties (based on these terms and conditions contained herein) and deemed accepted by the Customer once the Customer placing an order for the supply of Products or if the Customer accepts the provision of the Services from the Manufacturer. In such events, the Customer will immediately be bound, jointly and severally, by these terms and conditions.
2.2 No amendment of this Contract will be of any force or effect, unless in writing signed by an authorised representative of each party.
2.3 The Customer acknowledges and accepts:
(a) Although, Products are contained in a dark glass container to support against light deterioration, it is recommended by the Manufacturer that the Product is not stored in direct sunlight and that storage of the Products are maintained within a temperature range of between 4 to 30 degrees Celsius; and
(b) A “money back guarantee” is offered by the Manufacturer should the Customer not be 100% satisfied with the Product (subject to clauses 8.1 and 8.2, where the Customer feels that the Product has not worked as expected with their pet, if itching is still occurring, or a rash has not subsided, or any redness has not reduced or their pet was aggravated by the application of the Product).
2.4 Where it is agreed between both parties, electronic signatures, or e-signatures shall form part thereof, the acceptance to this Contract and to be deemed compliant, both parties acknowledge and agreed to adhere to all required provisions pertaining to such acceptance covered by the Contract and Commercial Law Act 2017.
3. ERROR AND OMISSIONS
3.1 The Manufacturer shall have no liability, unless attributed to negligence and/or willful misconduct by the Manufacturer, arising from any typographical, clerical, or other error, mistake or omission in any information, communication or other document or information issued by it.
4. SUPPLY OF PRODUCTS BY AN AUTHORISED SUPPLIER
4.1 The Customer accepts that until they are authorised as an approved Supplier by the Manufacturer, (and for the purposes of this clause, hereinafter the Customer will be referred to as “Supplier”), the Supplier shall not be able to sell the Products on, as a Supplier for the Manufacturer or represent to any third parties that the Supplier is in any way acting for the Manufacturer.
4.2 The Supplier acknowledges:
(a) During the period of appointment, the Manufacturer shall not accept responsibility or agree to be bound in any way for any contracts with third parties to whom the Supplier is a party; and
(b) Only approved Supplier have the authority to accept internet orders via their respective website and/or any alterative online auction sites.
4.3 Orders from a Supplier are accepted on the basis that:
(a) Products are resold to consumers at retail level only, at the Manufacturer’s Recommended Retail Price (“RRP”) or Maximum Price Indicator (“MPI”), unless otherwise agreed by prior approval between the Manufacturer and the Supplier. However, there is no obligation on the Customer to comply with such recommendations, but Products may not be sold at wholesale level or to any other trader that is known or is suspected to be purchasing for resale; and
(b) Products are to be sold for retail or displayed for sale only at Supplier’s locations approved by the Manufacturer; and
(c) Online or mail order sales (including but not limited to, any website or any alternative online auction platform) are prohibited without prior written consent by the Manufacturer; and
(d) Products are to be displayed, presented, and marketed in the manner that is in the best interest of the brand name.
4.4 If a default clauses 4.1 to 4.3 does occur, the Manufacturer’s reserves the right to enforce immediate and permanent closure of account facilities and all account balances due will become immediately payable on demand, in accordance with clause 10.1.
4.5 The Manufacturer has sole discretion on which brands or Products are made available to any approved Supplier and the Manufacturer does not guarantee continuing supply of any specific brands or Products.
5. GIFT CARD/S
5.1 Conditions of Gift Card/s purchased are:
(a) Gift Card/s are redeemable for use of Our Products for hire offered via Our Website (www.eezapet.com); and
(b) Gift Card/s can be redeemed in whole or for part of a payment. Unredeemed values will remain on the Gift Card/s until the Gift Card/s expiry or until redeemed, whichever occurs first; and
(c) No change will be given on purchases made using a Gift Card/s, but balances may be used on subsequent purchases; and
(d) Gift Card/s are non-refundable and cannot be redeemed for cash or be used towards the purchase of another Gift Card/s; and
(e) Gift Card/s cannot be replaced, and We will not be responsible for any Gift Card/s that may be lost, stolen, damaged, or sent to an incorrectly entered email address; and
(f) Gift Card/s expire 12 months from the date of purchase or last redeeming transaction. Any remaining balance will be cancelled on expiry of the validity period.
6. PAYMENT TERMS
6.1 The Price will be payable by the Customer as displayed to the Customer on the Manufacturer’s website and/or as stated on the invoice supplied to the Customer.
6.2 The date for payment by the Customer shall be the date/s determined by the Manufacturer, which shall be:
(a) At the time of placing an order prior to dispatch of the Products; or
(b) Credit Approved Customer’s:
(i) As agreed by both parties, by the date as stated in the Manufacturer’s schedule for payments; or
(ii) Upon the issue of a statement to the Customer’s operating business address, 20 Business Days following the end of every month; or
(c) In all other cases, unless stated otherwise, the date for payment is 7 Business Days from the date of any invoice/s issued (by email or post) to the Customer by the Manufacturer.
6.3 Receipt for payment can be made through direct bank transfer, or via the Shopify platform by either credit card (a surcharge may apply per transaction for Visa or Mastercard), Apple Pay, Google Pay, PayPal etc or any other method listed an available from that website platform, if the Customer chooses the Shopify platform, the Customer will be bound by Shopify’s conditions, failure to honour a payment after 3 attempts will result in cancellation of this payment method and no Products will be dispatched.
6.4 Notwithstanding clause 6.3, payment shall not be recognised by the Manufacturer as payment made in full until such payments have been made by way of cleared funds and thereby the Customer’s obligations have been fulfilled, and until then the Manufacturer’s ownership or rights in respect of the Products or any Services shall continue.
6.5 Apart from where the Manufacturer states otherwise, GST is included in the Price, for all relevant Products and Services supplied (including but not limited to, all stock, Services, costs, duties, fees, and freight charges) except where GST is explicitly shown as not included in the Price.
7. DELIVERY
7.1 Delivery (“Delivery”) and/or (“Return”) relating to any Products are understood to have taken place when:
(a) The Products are picked-up at the Manufacturer’s address by the Customer or the Customer’s designated transport company; or
(b) The Manufacturer is in receipt of the signed Delivery docket if Products are returned to the Manufacturer’s address by the Customer.
7.2 Any Delivery and Return costs associated with the supply of the Products shall be either included or in addition to the Price and as such will be stated on the accompanying invoice issued to the Customer by the Manufacturer. Additional costs may apply where Delivery or Return is subject to a rural area pick-up.
7.3 Retail Customers - Free Shipping, is offered for direct sales within New Zealand, on orders of more than $75.00 (incl GST).
7.4 Delivery dates for the supply of the Products and/or Services will only always be an estimate, as delays may occur beyond the Manufacturer’s control i.e., Force Majeure, etc (including Government imposed lockdowns effecting the Manufacturer’s employees, which are required to, self-isolate). Where circumstances are beyond the Manufacturer’s control, the Manufacturer does not accept any liability should any loss or damage be incurred by the Customer because of a late Delivery, however, the Manufacturer will at every opportunity consult with the Customer to ensure Delivery does take place, as soon as reasonably possible.
7.5 Notwithstanding clauses 7.2 and 7.3, the Manufacturer reserves the right to pass on a fair and reasonable charge to the Customer, if the Products need to be stored or delivered again at a later stage, if the Customer is unable to take Delivery of the Products as arranged.
8. DEFECTIVE PRODUCTS & RETURNS
8.1 The Customer agrees to examine the Products on Delivery and shall satisfy itself that they conform with the description, purchase order or any other document applicable to this Contract, that the Products are of merchantable quality, fit for purpose and in a useable condition.
8.2 If the Customer discovers a defect in the quality, or a shortage in the quantity of the Products, or a failure to comply with the Manufacturer’s description, invoice details and these terms and conditions, then the Customer must immediately notify the Manufacturer of that discrepancy and/or defect. If no notice is received by the Manufacturer within 5 Business Days from the time of delivery, then the Products shall be assumed to be accepted and clear of any defect or fault.
8.3 Subject to clause 8.1, any damaged Goods will always be replaced upon the Manufacturer upon receipt of written notice together with digital evidence of said damage unless the Customer requests a refund.
8.4 Where any Products are found to be defective and the Manufacturer has confirmed in writing that the Customer is entitled to reject, the Manufacturer’s liability (subject to clause 12.3 and the Consumer Guarantee’s Act 1993, if applicable) is limited to either (at the Manufacturer’s discretion) replacing the Products and/or rectifying the defective Services.
8.5 If Products are purchased through an approved Supplier and not direct from the Manufacturer, the Customer must in the first instance contact the Supplier regarding any issues with Products prior to the Products being considered for replacement, return or credit.
8.6 Returned Products will only be accepted by the Manufacturer, provided that:
(a) The Customer has complied with the provisions of clause 8.1;
(b) The Manufacturer has either confirmed in writing (email or text message), that they are willing to accept the return of the Products (exempt items that are non-returnable are: gift cards, downloadable software products, such items will be clearly identified at the time of purchase); and
(c) The Products for return must be actioned (at the Customer’s expense) within 14 Business Days of the Delivery date, or any other date as agreed with the Manufacturer to be eligible for a refund or exchange; and
(d) Returned Products must not be expired and must be in the original packaging with tags still attached together with the order number and the Customer’s contact details. All returns are assessed before a credit or refund is approved or declined and the Manufacturer’s assessment team will update the Customer regarding the outcome; and
(e) If the Products were marked as a gift when purchased and shipped directly to the gift recipient, the gift recipient will receive a gift credit for the value of the returned Products. Once the returned Products are received, a gift certificate will be mailed accordingly; or
(f) If the Products were not marked as a gift when purchased, or the gift giver had the order shipped to themselves to give to the gift recipient later, the Manufacturer will send a refund to the gift giver thereby notifying the Products return.
8.7 Non-defective Products that are subject to a “Special” and/or “Sale” Price offered by the Manufacturer will not be accepted for return or refund. Only Products that are purchased at the standard regular Prices will be considered for return or refund.
8.8 Furthermore, a restocking and handling fee of 15% of the returned Products, plus any freight, will apply on non-defective Products that the Manufacturer has agreed to accept for credit, unless otherwise agreed.
8.9 All refunds will be made direct to the bank account, credit card or original method of payment supplied.
9. DEFAULT
9.1 In any event, the Manufacturer reserves the right to charge the Customer interest in respect of the late payment of any sums due under this Contract, at the rate being two and a half percent (2.5%) per calendar month (interest shall accrue daily and will compound monthly), from the due date until receipt of payment, and also prior, to any judgement being awarded by a court of law.
9.2 For the sake of clarity, the Manufacturer has the right to suspend or bring the whole Contract to an end, or parts thereof, or any other contract or contracts with the Customer, in addition to its other remedies, upon the happening of any of the following events of default:
(a) Where monies owed by the Customer to the Manufacturer remains outstanding; or
(b) If the Customer breaches, or fails to comply or repudiates, any obligation under this Contract or any other subsequent contract with the Manufacturer; or
(c) The Customer intimating that they will not pay any sum by the due date; or
(d) Any Products seized by any other creditor of the Customer or any other creditor intimates that it intends to seize the Products; or
(e) Any Products in the possession of the Customer are materially damaged while any sum due from the Customer to the Manufacturer remains unpaid; or
(f) The Customer dies, becomes insolvent or subject to bankruptcy laws, calls a meeting of creditors, or if a company – enters into an arrangement with creditors or makes an assignment/compromise for the benefit of its creditors, or receivers, managers, liquidators (provisional or otherwise), administrators or any similar party is appointed in respect of the Customer (or any asset of the Customer), has any winding up petition presented against, or ceases to carry on business; or
(g) If the Customer ceases or threatens to cease carrying on business; or
(h) if the ownership or effective control of the Customer is transferred, or the nature of the Customer’s business is materially altered.
9.3 Whether this Contract is ended by mutual agreement or due to any breach by the Customer, all monies owed by the Customer (including any interest or costs due) to the Manufacturer shall become immediately due and payable. Without limiting the effect of this clause 9.3 it shall survive the end of this Contract, and any other terms and conditions which by their nature are intended to survive.
9.4 Where any event of default occurs, the Contractor may appoint a receiver in respect of all Products (including their proceeds) supplied to the Customer and any such receiver may take possession of the Products and sell them and otherwise exercise all rights and powers conferred on a receiver by law.
9.5 Notwithstanding clause 9.1, it is further agreed that if the Customer owes the Manufacturer any money, the Customer agrees to reimburse the Manufacturer all costs and expenses suffered by the Manufacturer in their attempt to recover all overdue monies owed to the Manufacturer, (which may include charges incurred by the Manufacturer from their banking institute for dishonours or chargebacks, legal costs on a solicitor and own client basis, inhouse admin fees or any fees charged during the debt recovery process, if a debt is passed to a recognised Debt Collection Recovery Agency).
10. CANCELLATION
10.1 By the Manufacturer:
(a) At any time before the Products are dispatched upon provided the Customer 7 Business Days’ notice in writing; and
(b) The Manufacturer agrees to refund the Customer any funds paid by the Customer in respect of the Products or Services, less any amounts owing to the Manufacturer for any goods purchased on the Customer’s behalf where credits or refunds cannot be obtained from the Manufacturer’s third- party suppliers; and
(c) The Manufacturer will not be liable to the Customer for any loss or damage the Customer suffers because the Manufacturer has relied on its rights covered in this clause.
10.2 By the Customer:
(a) Upon written notice, giving no less than 7 Business Days, prior to the commencement of the manufacture of the Products. The Customer remains liable for any costs incurred by the Manufacturer (including, but not limited to, loss of profit) up to the time of cancellation; or
(b) Where the Customer cancels an order that has commenced:
(i) The initial notification may be by telephone but must be confirmed in writing or email within 7 Business Days; and
(ii) The Customer shall be invoiced for all Products delivered up until the date of cancellation. Any deposit (if any) paid prior to the commencement of the Services will be forfeited in lieu of monies due, however, the Customer remains liable for any monies due over and above any deposit paid; or
(iii) At the Manufacturer’s discretion, where failure of clause 10.1(a)(b)(i) occurs, the Customer may be required to pay the full Price invoiced.
11. PRIVACY POLICY
11.1 In accordance with the Privacy Act 2020 and full disclosure, the Manufacturer has advised the Customer that Personal Information will be collected, handled, used, and stored about the Customer during the business relationship and thereby, the Customer grants consent to the Manufacturer to proceed with any inquiries with any third party necessary for the following purposes:
(a) Assessing the Customer’s credit risk (if any);
(b) Administering the Customer orders;
(c) Receiving information from one or more credit reference agencies, relating the credit record and repayment history of the Customer;
(d) Disclosing credit-related information to, and using the credit services of, one or more credit reference agencies, on a continuing basis at any time and entirely at its discretion concerning the Customer’s creditworthiness.
11.2 For the avoidance of doubt, all authorities given above are continuing authorities, to apply throughout the duration of the term of the Manufacturer and Customer’s trading relationship.
11.3 The Customer, if an individual, has a right of access to Personal Information about the Customer held by the Manufacturer and may request correction of the information.
11.4 If any Customer believes their privacy has been breached in any way, then a privacy complaint can be made to the Manufacturer’s Privacy Officer via email at: heather@eezapet.com or post to: The Privacy Officer, Eezapet Petcare Limited, PO Box 6688, Marion Square, WELLINGTON 6141. The Manufacturer will respond to that complaint within 5 Business Days of its receipt, should more time be needed to investigate the complaint then the Manufacturer will undertake to decide on a resolution as to the complaint within 20 Business Days of the original date of receipt. If the Customer is not satisfied with the resolution provided by the Manufacturer, the Customer can make a complaint to the Privacy Commissioner at www.privacy.org.nz.
11.5 For the purposes of this clause 11, Personal Information has the meaning given to it in the Privacy Act 2020.
12. MISCELLANEOUS
12.1 Dispute: any dispute or difference in connection with, or arising out of, this Contract shall be dealt with by the concerning party giving the other party written notice, clearly identifying, and providing full details of the dispute. Failure to resolve the dispute within 10 Business Days (or whatsoever timeframe agreed) by way of either formal discussions and/or mediation will result in the dispute now being referred to a sole arbitrator and the provisions of the Arbitration Act shall apply.
12.2 Jurisdiction:
(a) If any term or obligation of this Contract is at any time held by any jurisdiction to be negated, invalid or unenforceable, then it shall be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction and to prevent it from being void and it shall be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as severable and shall not in any way affect any other provision covered in these terms and conditions; and
(b) The legality, construction and performance of this Contract shall be governed by the laws of New Zealand. The Customer agrees that any dispute arising from the Contract between the two parties that cannot reasonably be resolved by mediation shall then be litigated only, by the jurisdiction of the Wellington Courts of New Zealand.
12.3 Intellectual Property and Reputation:
(a) The Customer accepts:
(i) The copyright in any designs, logos and trademarks, signage, or any documents that display the Manufacturer’s brand shall always remain the intellectual property of the Manufacturer; and
(ii) Any misuse, misrepresentation or any other action that negatively impacts on the Manufacturer’s business (including but not limited to, any online services and/or marketing campaigns run by any other third party in the same industry) that may imply they are acting on behalf or in favour of the Manufacturer, which is deemed to damage and/or tarnish the reputation of the Manufacturer’s brand, will result in the Manufacturer enforcing their right to seek an injunction for the use of that third party’s name, including seeking compensation for damages in respect of misuse of the Manufacturer’s brand; and
(b) The Customer agrees not to use:
(i) Any of the Manufacturer’s intellectual property/trademarks without written permission; or
(ii) In or as the whole or part of the Customer’s own trademarks; or
(iii) On the Customer’s website or in any marketing or promotional materials; or
(iv) In connection with activities, products or services that are not the Manufacturer’s.
12.4 Legislation:
(a) If the Customer is acquiring Services for the purposes of a trade or business, the Customer acknowledges that the provisions of section 43 of the Consumer Guarantees Act 1993 (“CGA”) and section 5D of the Fair Trading Act 1986 (“FTA”) do not apply to the supply of the Services by MC&F to the Customer, nor will the provisions of the FTA apply to either parties conduct or representations if unintentional: section 9 (misleading conduct), section 12A (unsubstantiated representations) or section 13 (false or misleading representations); and
(b) If the Customer is acquiring the Services in the capacity as a “consumer” as defined in the Consumer Guarantees Act 1993 and the Customer is not in trade, nothing in the Contract will exclude or limit the Customer’s rights or remedies under the Act; and
(c) The Manufacturer agrees to comply with all governing laws (including the provisions of all statutes, regulations, and bylaws of Government, local and other public authorities) of New Zealand applicable to the supply of their Products to ensure compliancy is met and that all applicable safety regulations and standards are followed during and after production of the Products, prior to release to the Customer/end user; and
(d) If the Customer is ever in breach of clause 12.1, then the Customer accepts and agrees to indemnify the Manufacturer against all claims, liability, losses, or costs imposed or incurred by the Manufacturer, because of such a breach.
12.5 Limitation of Liability: THE MANUFACTURER WILL NOT BE LIABLE FOR ANY LOSS CAUSED BY A FAILURE BY THE CUSTOMER TO COMPLY WITH THE CUSTOMER’S OBLIGATIONS UNDER THIS CONTRACT. FURTHERMORE, THE MANUFACTURER’S TOTAL LIABILITY WILL NOT, UNDER ANY CIRCUMSTANCES, EXCEED THE PRICE OF THE PRODUCTS AND/OR SERVICES SUPPLIED OR PERFORMED, PURSUANT TO THIS CONTACT.
12.6 Notices: Where a notice is required to be served under this Contract by either party, it must be issued in writing and delivered either by email, registered post (to the recipient’s address for service as provided under this Contract) or given personally to the concerned other party. Any notice that is served subject to this clause 12.6 shall be deemed to have been served, unless stated otherwise, at the time when the notice would have typically been delivered.
12.7 Terms & Conditions Changes: Notwithstanding clause 2.2 the Manufacturer reserves the right from time to time to amend their terms and conditions, but for disclosure purposes any amendments shall always be provided in writing to the Customer and/or notified by email that the updated terms and conditions are posted and ready for viewing on the Manufacturer’s website. The amended terms and conditions take effect for any new contracts from when the Customer accepts the updated terms and conditions and/or from when the Customer asks the Manufacturer to supply additional Products and/or Services.
