3. Definitions: The terms collateral, debtor, financing statement, financing change statement, proceeds, and security interest have the meanings as defined in the Personal Property Securities Act 1999 (PPSA). Purchase Money Security Interest (PMSI) has the meaning defined in Section 16 of the PPSA.
4. Goods means the Bio Marinus Products and all goods supplied from time to time by United and includes all proceeds of such goods and all references to goods shall in respect of those goods, mean the goods described in any one or more of the relevant purchase order form, packing slip, tax invoice or invoice (or its equivalent whatever called), relating to those goods on the basis that each such order form, packing slip, tax invoice or invoice (or its equivalent) shall be deemed to be incorporated in and form part of the terms and conditions of sale.
5. Orders: It is possible to place orders for goods and make payment by direct debit, credit card, or cheque either through our Website, our authorised sales representatives or partners, or by contacting United directly. The goods will not be released by United until payment is cleared.
6. Payment: Unless otherwise agreed in writing, payment terms for goods purchased from United shall be the following:
• Unless otherwise agreed in writing, the price of the goods will be the current price on the day of order. United may change its prices from time-to-time without notice.
• Unless otherwise agreed in writing, 1.5% interest per month shall be payable on any amounts owing to United for the period from the due date until the date of actual payment.
• United may allocate any money received in payment for goods supplied towards debts, charges and expenses owing in any priority it determines so that payments can be applied in partial payment of all or any outstanding invoices to maintain a PMSI in the goods.
• United will undertake the costs of delivering the goods as part of the purchase price, unless otherwise agreed.
7. Risk: The risk of any loss or damage to or deterioration of goods shall pass to the Purchaser when the Purchaser takes possession of those goods. Purchaser must properly store and secure the goods according to instructions provided by United.
8. Rejected goods:
• All claims to reject the goods or that the goods do not conform to description must be made by the Purchaser in writing and received by United within seven days of receipt of those goods by the Purchaser, otherwise they shall be deemed to have accepted the goods and waived any such claim.
Where Purchaser has notified United regarding goods that are damaged or not of acceptable quality United may at its discretion provide credit to the Purchaser or refund part or the entire purchase price.
9. Disclaimer: Any technical advice and information provided by us in good faith but without warranty. We cannot control your use or storage of our goods and it is your obligation to test the goods for suitability of purpose in your particular circumstances. In the event that liability is established for accident or damage, this will be limited to the cost of replacing the goods. Where our goods are purchased other than for personal, domestic, or household use or consumption, the statutory warranties and conditions under the Sales of Goods Act 1908, Customer Guarantees Act 1993 and Fair Trading Act 1986 are excluded to the maximum extent permitted by law.
10. Limitation of Liability / Indemnity
• United will not be liable to Purchaser for loss caused by anything which is beyond its reasonable control, or for failure to deliver by a specified date.
• United’s liability to Purchaser (whether in contract, tort (including
negligence), equity, strict liability or by virtue of a breach of any statutory duty or otherwise) is otherwise limited to the value of the goods and/or services supplied by United and associated with Purchaser’s claim or the direct damages Purchaser actually incurs or suffers, whichever is less. The Purchaser is not entitled to make any claim against the United for loss of profit, consequential damage or loss arising out of a breach of any term or implied term of these terms of trade or under any law or guarantee or warranty given by United.
• You must take your own precautions when accessing the Website or downloading files from the Website to ensure it does not expose you to the risk of viruses, malicious computer code or other forms of interference which may damage your property.
• Purchaser shall indemnify United against any third party proceeding that relates to Purchaser’s breach of these Terms.
11. Title in goods:
• Title in goods sold by United will not pass until the Purchaser has made full payment of the purchase price for those goods to United.
(a) The Website may contain links to third-party websites and resources (“linked sites”). These linked sites are provided solely as a convenience to you and not as an endorsement by United. United makes no representations or warranties regarding the availability, correctness, accuracy, performance or quality of the linked site or any content, software, service or application found at any linked site. United may receive payments and/or commissions from operators of linked sites in relation to goods or services supplied by the operator as a result of you linking to the third party website from the United website or purchasing goods or services from them.
(b) You must also obtain the prior written approval of United before providing any link to the Website. Where such approval is given, you further agree that you will not use any United trademark or other copyright material as part of such link without the express prior approval of United.
13. Licence/Intellectual Property: Unless otherwise stated, United is the owner of all intellectual property relating to United’s business and operations, the Website or the goods available on the Website. The purchaser is granted a license to make ordinary use of the Bio Marinus Products. No other rights or licences whatsoever, either express or implied, are granted hereunder to Purchaser as to any patents or patent applications, copyrights, trade marks, trade secrets, or other intellectual property now or hereafter acquired, developed, or controlled by United. United retains all rights and remedies afforded under any applicable laws for protecting confidential, proprietary, or trade secret information. If any improvements, modifications, or amendments are made to any intellectual property owned by United, all present and future rights in such improvements, modifications, or amendments are hereby assigned by Purchaser to United, unless otherwise agreed in writing. The Purchaser shall not, and shall not encourage others to reverse engineer, decompile or disassemble the formulation of the Bio Marinus Products.
14. Authority: It is hereby acknowledged that the person(s) making any order of goods has the authority to make and sign any order on behalf of the Purchaser.
15. Assignment: The Purchaser shall notify United in writing of any change in legal entity of the Purchaser and the Purchaser shall arrange for the new legal entity to be subject to these Terms if requested by United. The Purchaser may not transfer or assign any or all of its rights and/or obligations or delegate the performance of any or all of its obligations under these Terms, directly or indirectly, through acquisition, merger or otherwise, without the prior written consent of United. United shall be entitled to transfer or assign any or all of its rights and/or obligations under these Terms to a third party by written notice to the Purchaser.
16. Termination for Default: Any contract entered into subject to these Terms may be terminated by written notice to the other party’s default under these Terms (such default not being remedied within 7 days) or the other party becoming insolvent; or being subject to the appointment of a receiver, manager, liquidator, or statutory manager; or committing an act of bankruptcy; or making a scheme of arrangement with its creditors; or being unlikely to be able to meet its obligations. In the event of default, all amounts Purchaser owes United whether due for payment or not, will be immediately due and payable, and United shall be entitled to cancel all or part of Purchaser’s orders which have not been delivered in full, without prejudice to any rights which may have accrued up to the date of cancellation. Any such termination shall be without prejudice to any claim or right United may otherwise possess.
17. Dispute Resolution: If the parties are unable to resolve a dispute arising under these terms and conditions by discussion and negotiation within 14 days of receipt of written notice of the dispute from a party, then the dispute will be referred to mediation. The mediation shall be conducted in Christchurch (or such other mutually convenient forum in New Zealand) and administered by LEADR under its Commercial Mediation Procedures. Each party will bear its own costs of mediation and will pay half the mediation costs. If mediation has not resolved the dispute within one month of the matter being referred to mediation, then either party may commence court proceedings.
18. No waiver: All United’s rights will remain in full force despite any delay in enforcement. United will not be deemed to have waived any condition unless that waiver is in writing and signed by a duly authorised officer of United. Any waiver will apply only to the particular matter in respect of which it is given.
19. Entire Agreement: These Terms and any documents referred to in these Terms constitute the entire understanding and agreement between the parties relating to the matters dealt with in these Terms and supersede all prior understandings, agreements, representations and correspondence between the parties, and any terms or conditions which the Purchaser purports to apply under any purchase order, confirmation of order, specification or other document. These Terms will not be subject to change or modification except with the prior written consent of both parties. Notwithstanding this clause, in the event the Purchaser signs an Application for Credit Form, the Terms and Conditions of Sale and Credit attached to that Form shall apply, except to the extent such Terms and Conditions of Sale and Credit are inconsistent or wholly silent as to a matter covered by these Terms, whereby these Terms shall prevail.
20. Severability: If anything in these terms and conditions are unenforceable, illegal or void, it may be severed and the rest of these Terms will remain in force.
21. Force Majeure: In the event United is delayed in performing its obligations to the Purchaser due to any cause not within its control, United may cancel or suspend these terms and conditions without incurring any liability for any loss or damage suffered by the customer or any other person.
22. Governing Law and Jurisdiction: These Terms will be governed by and construed in accordance with New Zealand law. The parties submit to the exclusive jurisdiction of the New Zealand Courts in respect of all matters relating to these Terms.
These Website Terms were last updated on 30 October 2015