Terms & Conditions
Effective from 1 December, 2012
1. DEFINITIONS
“Company” means Empower Enterprises Ltd trading as “MAKERshop” or its permitted assigns.
“Conditions” means these terms and conditions.
“Contract” means any contract between the Company and the Customer for the sale and purchase of Supplies.
“Customer” means the person(s) or company whose order for the Supplies is accepted by the Company.
“Goods” means any goods supplied or to be supplied by the Company to the Customer, and includes their packaging and any replacement goods supplied under these Conditions.
“GST” means goods and services tax under the Goods and Services Tax(NZ) Act 1985.
“Services” means any services supplied or to be supplied by the Company to the Customer, and includes any technical advice, repair or maintenance services provided by the Company or its technical representatives in connection with Goods.
“Supplies” means any Goods or Services.
“Website” means any e-commerce website owned by the Company and where these Conditions are set out.
“in writing” includes electronic communications.
2. CONDITIONS
All orders are accepted by the Company subject to and in accordance with these Conditions.
These Conditions override and exclude any terms or conditions in or referred to in any negotiations or course of dealing between the Company and the Customer or set out in the Customer’s standard terms and conditions to the fullest extent permitted by law.
If there is any conflict between the provisions of the order for the Supplies and these Conditions then these Conditions will prevail unless the Company agrees otherwise in writing. Together with any terms accepted in writing by the Company in connection with an order, these Conditions constitute the entire agreement between the Company and the Customer in relation to the Supplies ordered. No variation to these Conditions is permitted unless expressly authorised in writing by a director of the Company.
3. PRICES AND GST
Unless indicated otherwise, prices stated on the website for Supplies are in New Zealand dollars, and are inclusive of GST and exclude any other duties or taxes.
The Company has used all reasonable endeavors to ensure that prices for the Supplies (including shipping) are accurately set out on the website but these prices are not binding and the Company reserves the right to change its prices without notice at any time. Prices charged will be those prevailing when an order is accepted.
The Company will issue a tax invoice to the Customer in relation to any supply that is subject to GST.
The amount of GST payable will be calculated by multiplying the sum of the price for the supplies plus any freight or other charges by the rate of GST applicable at the time of the supply. The words “supply” and “tax invoice” in this Condition have the same meaning as that given to them in the Goods and Services Tax (NZ) Act 1985.
4. PAYMENT
Payment is due not later than the 20th day of the month following the date of statement, without any deductions, withholding or set off. If the Customer fails to make payment by the due date then, without prejudice to any other right or remedy, the Company shall be entitled to:
· cancel the order or suspend any further deliveries or performance;
· appropriate any payment made by the Customer to such of the Supplies (or the Supplies made under any other contract) as the Company may think fit; and
· charge interest (both before and after any judgment) on the amount unpaid at the rate of 2% per annum above the Reserve Bank of New Zealand’s published official interest rate.
If legal or other action is taken to recover monies due to the Company then the Company reserves the right to charge the Customer an amount to cover all and any costs (including legal costs) incurred by the Company.
5. NEW ACCOUNTS
A Customer wishing to open a credit account must furnish such information as may be requested by the Company and the Company may make a search with a credit reference agency. The Company reserves the right in its absolute discretion to grant, refuse or discontinue any credit facilities or reduce or suspend any credit limit at any time.
6. ORDERS
The Company reserves the right to decline to trade with any company or person, or to accept orders for Supplies in part.
Once accepted, no order may be cancelled or reduced without the prior written agreement of a director of the Company. Without limiting the generality of this, orders for Goods which are not listed on the website or non-stock items may not be cancelled.
Orders for Goods are usually accepted by the Company by dispatching the Goods provided, however, that dispatch will not be acceptance where the price for the Supplies has been incorrectly quoted or referenced by the Customer in its order.
7. DELIVERY
The Company reserves the right to deliver or perform by instalments. Failure to meet a delivery or performance date where deliveries or performance are by instalment shall not prevent or restrict the Company from making further deliveries or rendering subsequent performance under the relevant Contract by instalment.
Delivery will be made to the address specified by the Customer.
The Company may use any method of delivery available to it. The Company will use reasonable endeavors to meet delivery and/or performance estimates but, except as set out in Condition 8 below, in no circumstances shall it be liable to compensate the Customer for non-delivery, non-performance or late delivery or performance.
8. INSPECTION, DEFECTS AND NON DELIVERY
The Customer must inspect the Supplies as soon as is reasonably practicable after delivery or, in the case of Services, performance. Except as set out in Conditions 13 or 14 below, the Company shall not be liable under these Conditions for a defect in the Supplies, incomplete or failed delivery, shortage of weight or quantity of Supplies unless written notice is given to the Company within 7 days of the date of delivery as recorded by the freight carrier.
It is the Customer’s responsibility to check for the presence of computer viruses before the Goods are used.
The quantity of any consignment of Goods, as recorded by the Company upon dispatch from the Company’s place of business, shall be conclusive evidence of the quantity received by the Customer on delivery, unless the Customer can provide conclusive evidence to the contrary. The Company will not be liable for any non-delivery of Goods or non-performance of Services unless written notice is given to the Company within 10 days of the date when Goods should have been delivered or the Services performed in the ordinary course of events.
Any claim by the Customer under this Condition is subject to the limitation on the Company’s liability set out in Condition 14.
9. RETURNS
Prior to returning any Goods to the Company for any reason, the Customer must contact the Company to obtain a returns authorisation number (‘RMA’). All Goods are returned at the Customer’s risk and expense and should be undamaged by the Customer and in their original packaging. The Customer is responsible for returning Goods to the Company and for providing proof of delivery of such return.
The Company operates a 14 day return policy. To be accepted for return on this basis, Goods must be returned in their original condition for receipt by the Company within 14 days. The Customer must return the Goods to “MAKERshop, 9 Anich Road, Massey, Auckland 0614” clearly quoting the Customer’s name, order number and RMA number.
Any Goods returned after 14 days as ‘unwanted’ or ‘incorrectly ordered’ may be accepted at the discretion of the Company and may be subject to a restocking fee of 10% of the invoice value of the Goods (subject to a minimum charge of $10).
Any Goods which are not listed on the website, are sold as clearance items or are non-stock items may not be returned under this Condition.
10. DESCRIPTION
All specifications, drawings, illustrations, descriptions and particulars of weights, dimensions, capacity or other details including, without limitation, any statements regarding compliance with legislation or regulation (together “Descriptions”) wherever they appear (including without limitation on this website, on dispatch notes, invoices or packaging) are intended to give a general idea of the Supplies, but will not form part of the Contract. If the Description of any Goods differs from the manufacturer’s description, the latter shall be deemed to be correct. The Company shall take all reasonable steps to ensure the accuracy of Descriptions but relies on such information, if any, as may have been provided to it by its suppliers and to the fullest extent possible by law excludes all liability in contract or tort or under statute or otherwise for any error in or omission from such Descriptions whether caused by the Company’s negligence or otherwise. The Company may make changes to the Supplies as part of a continuous programme of improvement or to comply with legislation.
11. RISK AND OWNERSHIP
The risk of damage to or loss of Goods will pass to the Customer when the Goods are unloaded from the Company’s carriers at the Customer’s premises. Ownership of the Goods shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due from the Customer to the Company for those Goods.
12. PERFORMANCE AND FITNESS FOR PURPOSE
Subject to Condition 14:
(i) unless any performance figures, tolerances or characteristics have been specifically and expressly warranted by a director of the Company in writing, the Company accepts no liability for any failure of the Supplies to comply with such criteria, whether attributable to the Company’s negligence or otherwise; and
(ii) the responsibility for ensuring that Supplies are sufficient and suitable for a particular purpose is the Customer’s, unless specifically stated in writing by a director of the Company. Any advice or recommendation given by an employee of the Company which is not confirmed in writing by a director of the Company is acted on entirely at the Customer’s risk and the Company shall not be liable for any such advice or recommendation which is not so confirmed.
13. WARRANTY / GUARANTEE
The Company will endeavor to transfer to the Customer the benefit of any warranty or guarantee given by the manufacturer of Goods.
In addition, the Company will, free of charge, repair or, at the Company’s option, replace Goods which are proved to the reasonable satisfaction of the Company to be damaged or defective due to faulty materials, workmanship or design for a period of 6 months after dispatch of the Goods.
Software programs are supplied on the strict understanding that the Company does not warrant their function to be free from defects or error.
This obligation will not apply:
· if the defect arises because the Customer has altered or repaired such Goods without the written consent of the Company;
· if the defect arises because the Customer did not follow the manufacturers’ instructions for storage, usage, installation, use or maintenance of the Goods;
· if the Customer has failed to notify the Company of any defect in accordance with Condition 8 where the defect should have been reasonably apparent on reasonable inspection; or
· if the Customer fails to notify the Company of the defect within 12 months (or such other period as the Company shall specify at the time of acceptance of the order for the Supplies) of the date of dispatch of the Goods.
Any replacement Supplies made or Goods repaired under this Condition will be guaranteed on these terms for any unexpired portion of the period of guarantee given on the original Supplies. Any Goods which have been replaced will belong to the Company.
14. EXCLUSION OF LIABILITY
Subject to this Condition 14:
· these Conditions set forth the full extent of the Company’s obligations and liability to the Customer with respect to the Supplies under any Contract; and
· all other terms, conditions, warranties and representations that might otherwise be implied by statute or otherwise, are hereby expressly excluded.
To the fullest extent permitted by law and subject only to any express exceptions contained in these Conditions, the Company will be under no liability to the Customer whatsoever (whether in contract, tort, (including negligence), breach of statutory duty, restitution or otherwise) for any injury, death, damage or direct or indirect or consequential loss (all of which terms include, without limitation, pure economic loss, loss of profits, loss of business, loss of use, loss of data, computer downtime, depletion of goodwill, business interruption, increased purchasing or manufacturing costs, loss of opportunity, loss of contracts and like loss) howsoever caused or arising out of or in connection with:
· Any of the Supplies, or the manufacture, sale, performance or supply or failure or delay in performance or supply of the Supplies by the Company or on the part of the Company’s employees, agents or sub-contractors;
· Any breach by the Company of any of the express or implied terms of the Contract;
· Any use made or resale or on-supply of any of the Supplies or any product incorporating any of the Goods or developed using the Supplies; or
· Any statement made or not made or advice given or not given by or on behalf of the Company, including as to compliance with legislation or regulation.
The Company does not exclude, restrict or modify any liability that cannot be excluded, restricted or modified by law. However, where such statutory provisions apply, or where the Customer is entitled to claim under an express provision of these Conditions (including Conditions 8, 10, 12 and 13), then to the extent permitted by law the Company’s total liability shall be limited at its option to:
· in the case of a supply of Goods, either the replacement of the Goods; or supply of equivalent Goods; or refund of the amount paid for the goods; or the payment of the cost of acquiring equivalent Goods; or the repair of the Goods; or the payment of the cost of having the Goods repaired; or
· in the case of a supply of Services, either the supply of the Services again; or refund of the amount paid for the Services; or the payment of the cost of having the Services supplied again.
Each of the Company’s employees, agents and sub-contractors may rely on and enforce the exclusions and restrictions of liability in these Conditions (including Conditions 8, 10, 12, 13 and 14) in that person’s own name and for that person’s own benefit.
15. INTELLECTUAL PROPERTY RIGHTS
The Supplies described on this website may be subject to the intellectual and industrial property rights (including patents, knowhow, trademarks, copyright, design rights utility rights, database rights and/or other rights) of third parties. No right or license is granted to the Customer, except the right to use the Supplies or re-sell the Goods in the Customer’s ordinary course of business. The Company shall have no liability whatsoever in the event of any claim of infringement of any such rights howsoever arising. In particular, without limiting the above, title in any software program forming all or any part of the Goods is reserved to the Company and/or its suppliers. The Customer is responsible for informing itself of the terms of its license or use and paying any royalty payable.
The Company owns full copyright in respect of this website and its reproduction in whole or part is prohibited without the Company’s prior written consent.
16. USE OF PERSONAL INFORMATION
For information on the Company’s use of personal data please see the Company’s Privacy Policy on its website.
17. EXPORT
The Customer is responsible at its own expense for obtaining any license and complying with any export regulations in force within New Zealand and in the country for which the Goods are destined.
18. AGE REQUIREMENTS FOR CERTAIN GOODS
Where the law requires a minimum age for the purchase of certain Goods, the Customer confirms that he or she is over the required age and that delivery of the Goods will be accepted by a person over the relevant age limit.
19. PROHIBITED APPLICATIONS
The Goods are strictly prohibited for use in anti-personnel landmines, or in any connection with biological, chemical or nuclear weapons or missiles to deliver them under any circumstances.
The Goods are not authorised for use in space or aircraft or air traffic applications, life support or life sustaining equipment, surgical implantation equipment or for any other purpose where the failure or malfunction of the Goods could reasonably be expected to result in personal injury, death, environmental damage or severe property damage. Use or inclusion of the Goods in any such equipment, system or applications is also strictly prohibited.
The Customer will indemnify the Company and its suppliers against any and all losses, liability and expense (including legal and other costs) resulting from any such inclusion or use even if damage is attributed to defective design or manufacture.
20. FORCE MAJEURE
The Company shall not be liable to the Customer in any manner or be deemed to be in breach of these Conditions because of any delay in performing or any failure to perform any of the Company’s obligations under these Contract if the delay or failure was due to any cause beyond the Company’s reasonable control (which shall include, but not be limited to government actions, war, fire, explosion, flood, import or export regulations or embargoes, labour disputes or inability to obtain or a delay in obtaining supplies of Goods or labour). The Company may, at its option, delay the performance of, or cancel the whole or any part of a Contract.
21. LEGAL CONSTRUCTION
All Contracts shall be governed by and interpreted in accordance with New Zealand law and the Customer submits to the jurisdiction of the New Zealand Courts and Courts able to hear appeals from those Courts.
22. GENERAL
Any provision of these Conditions of Supply which is held by any competent authority to be invalid, void, voidable, unenforceable or unreasonable (in whole or in part) shall to the extent of such invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the other provisions of these Conditions and the remainder of such provision shall not be affected. Failure by the Company to enforce or partially enforce any provision of these Conditions will not be constrained as a waiver of any rights under these Conditions.
These conditions supersede all previous terms and conditions which have previously governed a contract for the sale of Supplies from the Company to the Customer.