Terms of Trade

TERMS OF TRADE
Version 2023(1)

PARTIES:
Neptunes Gear Limited (the Supplier)
The terms of trade set out below govern all of the supplies of goods, software and services from the Supplier (“we”,“us”) to the Customer (“you”). They are effective from 1 September 2023 and will replace all earlier written or oral agreements and any terms and conditions contained in any document used by you and purporting to have contractual effect. Your acceptance of any goods or services from us indicates your continuing acceptance of these terms of trade. Consumers may have additional rights under the Consumer Guarantees Act 1993.

These terms may be modified or replaced from time to time without notice. This page is the current version.

BACKGROUND

1.0 Delivery and risk
1.1 We do not insure your shipments. Our responsibility ends when the goods leave our premises or in the case of goods delivered direct from a third-party warehouse at the point the goods leave that warehouse. You are responsible for all insurance and risk for the goods in transit.
1.2 You agree to pay all delivery costs, any import duty or taxes which may be applicable (as per clause 2.3) and all third-party fees. If we deliver any order in instalments, then each delivery is a separate contract on these terms.
1.3 You do not have the right to possess goods until they are delivered to you or collected by you. Where you ask us to deliver goods or software directly to another person, that person takes possession of the goods for you as your agent and you are still directly responsible to us on these terms.
1.4 All claims for shortage or delivery damage must be made to the carrier and to us as soon as reasonably practicable and otherwise no later than 5 business days of the date of delivery, or in the case of non-delivery within 2 business days of the due date for delivery. Where an estimated timeframe is provided for delivery the due date is the last day of the estimated timeframe.
1.5 We will use our best effort to deliver goods, or perform services, in a timely manner but will not be liable to you for any loss or damage arising in any way from any delay in delivery or performance including any consequential loss.
1.6 Where a product or service is defective our liability to you for such defect will be limited to the value of the product or value of the service rendered. We will not be liable for any consequential loss which may have been caused by a defective product or service, including where such loss is caused by negligence.
1.7 We will use our best endeavors to provide options for delivery to your destination but will not be liable to you for any unavailability of a carrier to your destination.

1.8 We may cancel or suspend delivery of any ordered product or supply of services in the event of any delay or non-performance due directly or indirectly to wars, terrorism, strikes, lockouts, delays or defaults of manufacturers or suppliers, acts of God or any other cause beyond our reasonable control.

2.0 Quotations, Orders and Prices
2.1 Unless otherwise agreed in writing before you place an order, prices for goods or services are those stated in our price list or otherwise in force at the date when you place the order. Prices are subject to alteration without notice.
2.2 Unless we state otherwise in writing:
(a) Quoted prices are the New Zealand dollar price exclusive of GST and are valid only for the time stated on any quotation, or if no time is stated, on the date of quotation only.

(b) Unless otherwise stated in writing, all goods will be box shipped and it is your responsibility to assemble, configure and install the goods.
2.3 You must pay goods and services tax and any other government duties, levies or taxes in respect of the goods or services.
2.4 Orders may be cancelled only if we agree in writing to the cancellation and the order has not been processed by us. We may charge you a cancellation or restocking fee as set out in clause 4.

3.0 Payments and property
3.1 Unless we have agreed in writing to extend credit to you, you must pay for all goods in full before delivery or collection, or at our request, set up an irrevocable letter of credit in our favor with a bank approved by our bankers. We may require you to pay a deposit before we deliver or you can collect the goods.
3.2 Unless otherwise agreed, payment for all goods and services must be made in full before the goods or services are supplied, shipped, installed or delivered. Your payment is deemed to be made only when funds have fully cleared through the banking system into our bank account.
3.3 Where services are supplied without invoice or on the basis of a quote, unless such quote states otherwise, payment for those services and any incidentals is due without deduction or setoff, within 7 days of the date of invoice.
3.4 If you have not paid in full by the due date, we may charge you interest compounding monthly on the unpaid overdue balance at the rate of 5% per annum above the current overdraft rate charged by our bankers, and we may charge costs (including collection costs and legal costs on a solicitor-client basis) and suspend delivery of further goods or performance of further services until your account is paid in full.
3.5 Property and ownership in goods, whether in their original form or incorporated in, commingled with or attached to another product, will not pass to you but will remain with us until we receive payment in full of the purchase price of the goods and all other amounts that you owe us for any reason.
3.6 Until property passes to you, you shall hold any goods and proceeds of all kinds in trust in a fiduciary capacity for us as bailee.
3.7 You must not resell or part with possession of any goods or equipment that we supply for your use before you have paid for it in full, unless we have given you written consent.
3.8 Where you have not paid for the goods, and we reasonably believe that the consumer goods have been or will be destroyed, damaged, disposed-of, sold endangered, disassembled, removed, or concealed or that you are or will be in breach of any part of clauses 3.0 or 4.0 of this agreement, we or our agent may enter your premises 0r vessel without further notice to you or any other person, to remove any goods which are our property, including goods or software which are incorporated into any other goods, using such force as is necessary and without prejudice to any of our other rights.
3.11 Where you acquire goods from us for your personal, domestic or household use, nothing in clauses 3.0 will limit or derogate from rights you may have under the Credit Repossession Act and we will comply with that Act in exercising our powers under clause 3.10.
3.12 You indemnify us against all costs and claims in respect of our exercise of rights under this clause 3.0.

4.0 Returns
4.1 You acknowledge that returns will not be accepted, unless by negotiation. Returns will not be accepted for any opened or installed goods.
4.2 A restocking fee, being the higher of the restocking fee charged to us by our supplier and 20% of the sale price for the returned goods will apply to all returns.
4.3 However, nothing in these Terms of Trade or in the returns policy will limit or affect any rights that a non-business consumer may have under the Consumer Guarantees Act 1993.

5.0 Warranties
5.1 Where the New Zealand Consumer Guarantees Act 1993 applies to the supply of goods or services under these terms of trade, you may have additional rights under that Act.

5.2 Where goods are subject to manufacturers’ warranties. We will pass on the benefit of those warranties to you, without being directly liable to you under any warranty. You are responsible for the cost of returning goods to the manufacturer or to us under any warranty, and you may be responsible for additional costs including (but not limited to) freight. Where you require us to do anything related to a warranty claim, you must pay our service and call-out charges. We may refuse to assist with warranties if any sum that you owe us for any reason is overdue.
5.3 Any warranty may be voided by unreasonable use, damage or misuse of equipment, problems caused by the misuse of software or faulty software, damage after the goods left our possession, negligent installation or operation, inadequate packaging, cleaning or maintenance, unauthorized repairs, modifications or the use of parts, hardware, software or consumables not supplied by us.
5.4 Where the goods or services that you acquire from us are not of a kind ordinarily acquired for personal household or domestic use or consumption, or where you acquire, or hold yourself out as acquiring, the goods or services for the purposes of a business, the provisions of the Consumer Guarantees Act 1993 and the conditions, warranties and guarantees set out in the Contract and Commercial Law Act 2017, or implied by common law will not apply and are excluded from these terms of trade.

6.0 Limitation of liability
6.1 We will not be liable for any losses of any kind or any delay in supplying goods or services which are caused in whole or in part by circumstances beyond our reasonable control.
6.2 Subject to clause 5.1, our liability shall be limited to the value of any defective goods, software or services supplied, and none of us, our employees, contractors or agents, any manufacturer(s) or developer of the goods, or any of their materials or components or any suppliers of services, will be liable to you for loss or damage of any kind however that loss or damage is caused or arises. This limitation of liability includes, but is not limited to, costs (including costs of returning goods to us or to any manufacturer), loss of data, indirect or consequential loss, loss of contracts, loss of profits, damage caused by or arising from delays in manufacture or delivery, faulty or delayed installation, unreasonable use, negligence (including a failure to do something which should have been done or to prevent something from happening), faulty specifications and design, or faulty materials or components of the goods.

7.0 Intellectual property rights
7.1 You do not acquire any right, title or interest in any copyright, trade marks, or other intellectual property rights relating to any of the goods or software supplied to you.
7.2 You must not use any intellectual property, including trade marks, which belongs to us or our suppliers or manufacturers, or cause, assist or permit anything to occur which may interfere with, damage or endanger those intellectual property rights.
7.3 You must advise us immediately when you become aware of any unauthorized use or attempted use by any person of our trade marks or other intellectual property rights or those of our suppliers.
7.4 You must ensure that all confidential information we give you is protected and in particular made available to your employees only on the basis that those employees at all times maintain strict confidentiality.

8.0 Personal Information
8.1 We may use any personal information that you supply for credit, administration, service and marketing purposes. You have the right of access to, and to ask for correction of, your personal information.

9.0 General Conditions
9.1 We may change these terms of trade from time to time without notice. The terms applicable to a transaction are the terms and conditions contained in the version available on our website at the point in time that the order is placed.
9.2 If we fail to enforce any terms or to exercise any right under these terms of trade at any time, we have not waived that right.
9.3 You may not assign or subcontract any of your rights or obligations under these terms of trade.