TERMS AND CONDITIONS OF SALE
These Terms and Conditions of Sale govern your purchase of Products from this website, www.ecomist.co.nz (Site
). The Site is operated by (Ecomist
), a division of Damar Industries Limited (Ecomist). Ecomist's products are sold and distributed by franchisees in New Zealand. Purchases made on the Site constitute transactions between you and the franchisee in your region (referred to in these Terms and Conditions of Sale as the Franchisee
) and these Terms and Conditions of Sale are between you and the Franchisee, not Ecomist. To view the details of the Franchisee in your region, please refer to the Franchises
page of the Site.
By registering to purchase Products through the Site, or by using the 'Express Checkout', you have indicated your acceptance of these Terms and Conditions of Sale. Each time you submit an order for Products through the Site, you agree that that order is subject to these Terms and Conditions of Sale (as current at the time of the order).
In these Terms and Conditions of Sale, unless the context otherwise requires:
GST means goods and services tax in terms of the Goods and Services Tax Act 1985, at the rate prevailing from time to time, including any tax levied in substitution for that tax;
Price means the price payable for Products as displayed on the Site from time to time, and unless specified otherwise such price will include GST, but will exclude any other applicable taxes, duty payments and delivery charges; and
Products means the products you may order and obtain through the Site from time to time.
- Orders and Contract Formation
If you order Products using the online order process available on the Site:
(a) Any quotation, price list or other information on the Site supplied by or on behalf of Ecomist or the Franchisee is an invitation to treat and is not an offer. All orders that you place will be deemed to incorporate the then current version of these Terms and Conditions of Sale and will constitute an offer which the Franchisee may in its discretion accept.
(b) All details (including Price and availability) relating to the Products ordered as displayed on the Site are subject to confirmation by the Franchisee, once the Franchisee has received your order. The Franchisee will notify you as soon as possible if the Franchisee accepts or declines your order or if any of the details on the order need to be amended.
(c) Any order which you provide to the Franchisee will be effective and legally binding as a separate, individual contract once the Franchisee has confirmed acceptance of your order or, if the Franchisee notifies you of any amendments to the order, once you have indicated your acceptance of the amended order as notified to you.
(d) Neither Ecomist nor the Franchisee will be liable for any loss, damage, cost or expense of any kind, whether direct, indirect, incidental, consequential, punitive or otherwise, suffered or incurred by you in connection with your reliance on any order which has not been confirmed by the Franchisee.
The Franchisee will be under no obligation to accept any order from you and reserves the right at its absolute discretion to decline an order. The Franchisee may cancel an order, regardless of whether that order has been confirmed, if:
(a) your credit card does not provide access to sufficient funds or payment of the order total has not otherwise been received within 3 business days of the date on which your order was made; or
(b) the Price for any of the Products that are the subject of the order was incorrect, provided that if the order is cancelled and payment has been received, the Franchisee will refund the payment.
Subject to the circumstances described above, the Franchisee will use its reasonable endeavours to supply the Products in accordance with your order. If for any reason the Franchisee is unable to fulfil your order after it is accepted, the Franchisee will notify you and refund any payment made in respect of that order.
If you are an individual person:
(a) you represent and warrant that you are over 18 and have legal capacity to enter into contracts in New Zealand; and
(b) if you are placing an order on behalf of an organisation, you warrant that you have the appropriate authority and power to do so on behalf of that organisation and are authorised to accept these Terms and Conditions of Sale on behalf of the organisation.
- Payment and Availability
Unless agreed otherwise with the Franchisee in writing, you must pay the order total for the Products by credit card at the time of placement of the order or directly to the Franchisee's nominated bank account (as advised on the Site) immediately following placement of the order.
When you pay by credit card, you represent and warrant that the credit card you use to pay the order total for Products is issued in your name, or that you are otherwise authorised to use the credit card in that manner.
The company name of the local franchise from which you purchase the Products will appear on your cardholder statement for any transactions through this website.
- Delivery, Title and Risk
Following the Franchisee's acceptance of an order, the Franchisee may inform you by email of the estimated delivery date for the Products (Delivery Date). The Delivery Date is given and intended as an estimate only. The Franchisee will use reasonable endeavours to deliver the Products by the Delivery Date. The Franchisee will not in any circumstances (whether in contract, tort or otherwise) be liable for delivering the Products after the Delivery Date.
Delivery will be made at or to the place specified in an order, provided that such place is in New Zealand and payment of the order total for the Products has been made in full. The Franchisee has the right to select the method of delivery and the carrier. Delivery may be made by instalments, at the sole discretion of the Franchisee.
Subject to payment in full, title to the Products will pass to you at the time of delivery of the Products. You will bear the risk of any loss, damage or deterioration of or to the Products from the time that they are delivered to you.
- Warranties and Liability
Where the Products sold are the subject of a standard warranty in relation to those Products (as notified to you by the Franchisee in writing or otherwise supplied with the Products) (Standard Product Warranty), then you will receive the benefit of the Standard Product Warranty. If the Standard Product Warranty requires registration details to become valid, then you must complete those registration details as directed.
Subject to clause 7, to the fullest extent permitted by law:
(a) if any Products supplied do not comply with the Standard Product Warranty, your sole remedy or remedies will be as set out in the Standard Product Warranty;
(b) except as expressly set out in these Terms and Conditions of Sale, all warranties, representations and guarantees (whether express, implied or statutory) in relation to any Products you purchase through the Site, including any warranty of fitness for any particular purpose or warranty of merchantability, are excluded;
(c) the Franchisee will not be liable for any special, incidental, consequential or indirect damages or loss, loss of goodwill, data or business profits or any exemplary or punitive damages suffered or incurred by you in connection with the Products; and
(d) subject to the provisions of these Terms and Conditions of Sale, the maximum liability of the Franchisee to you in relation to a Product will not exceed the price you paid for that Product.
- Consumer Guarantees Act
Nothing in these Terms and Conditions of Sale is intended to limit or replace any rights you have under the Consumer Guarantees Act 1993 (CGA), provided that if you are acquiring, or hold yourself out as acquiring, Products for the purposes of a business in terms of section 43(2) of the CGA, the provisions of the CGA will not apply and you will not assert or attempt to assert any rights or claims against the Franchisee or Ecomist under the provisions of the CGA.
If you purchase Products for your business and on-sell them to a person acquiring them for the purposes of a business, you must contract out of the CGA when you on-sell the Products.
You agree to indemnify the Franchisee, Ecomist and Ecomist's related or associated companies, relevant suppliers, licensors and agents (each an Indemnified Party) in respect of any loss, damage, cost or expense (including legal costs on a solicitor and own client basis) suffered or incurred by the Indemnified Party as a result of any:
(a) breach by you of any of your obligations under these Terms and Conditions of Sale; or
(b) any of your negligent acts or omissions.
This clause is intended to be for the benefit of, and enforceable by, each Indemnified Party, who is not a party to these Terms and Conditions of Sale, for the purposes of the Contracts (Privity) Act 1982.
- Product Return Policy
Subject to clause 7 and any Standard Product Warranty or other guarantee explicitly advertised by or on behalf of the Franchisee, and to the fullest extent permitted by law, the Franchisee will not accept Products for credit or return unless:
(a) they have been damaged during delivery, were not received by you in full working order, have been double-delivered or mistakenly supplied; and
(b) the Products are returned to the Franchisee, correctly packaged in their original packaging, within 14 days of receipt by you, and all accessories, instruction manuals and packaging are returned to the Franchisee intact.
No credit will be issued unless the Franchisee is satisfied (when the Franchise examines the Products) that the Products have been damaged during delivery to you or were not received by you in full working order.
In the case of Products returned because of double-delivery or mistaken delivery, you must ensure that:
(a) the Franchisee receives the Products within 14 days of receipt by you;
(b) the Franchisee receives the Products unopened and in good condition with no rips, tears or writing; and
(c) a written notice accompanies the Products stating your name and contact details, details of the delivery, and the reason for the return of the Products.
If the conditions above are not met, you will be deemed to have purchased the Products, and will be invoiced at the applicable Price.
Your enquiries must be directed to your local Ecomist franchise by phoning 0800 75 75 78, in the first instance.
You are required to arrange your own courier at your sole cost to deliver the goods back to the Franchisee at the address provided by your local Ecomist franchise.
The requirements in this clause in relation to the return of Products because of double-delivery or mistaken delivery apply to the fullest extent permitted by law.
- Governing Law
These Terms and Conditions of Sale are governed by the laws of New Zealand (without reference to conflicts of laws principles), and all matters or disputes connected with these Terms and Conditions of Sale will be dealt with by the New Zealand courts.
The Franchisee may amend these Terms and Conditions of Sale from time to time without notice. Any order for Products that you submit will be subject to the then current version of these Terms and Conditions of Sale.
- Other Terms
Unless the Franchisee agrees otherwise in writing, your standard terms and conditions or standard terms of trade or similar (if any) will not apply to the supply of any Products.
You acknowledge that Ecomist is a party to neither these Terms and Conditions of Sale nor the transactions contemplated by your order. However, Ecomist may perform certain functions in relation to your order on the Franchisee's behalf, acting as its duly authorised agent.
To the extent permitted by law, Ecomist will not be liable to you for any loss, damage, cost or expense of any kind, whether direct, indirect, incidental, consequential, punitive or otherwise, suffered or incurred by you in connection with your purchase of any Products under these Terms and Conditions of Sale or your use of such Products.
Provisions of these Terms and Conditions of Sale (including this clause 16) which purport to grant rights or benefits to Ecomist or exclude, limit or disclaim the liability of Ecomist are intended to be for the benefit of, and enforceable by, Ecomist for the purposes of the Contracts (Privity) Act 1982.