Terms and Conditions
WEBSITE TERMS AND CONDITIONS OF USE AND PRIVACY STATEMENT
These terms and conditions apply to the use of this website ("Site"), including the purchase of goods over this Site. In using this Site for these and other purposes, you agree to be bound by these terms and conditions. Please read them carefully. If you do not accept these terms and conditions, you must refrain from using the Site. These terms and conditions must be read alongside other applicable terms and conditions governing the use of the Site including Kovea Limited's Standard Terms of Trade ("Terms of Trade").
Terminology
In these terms and conditions the expressions "we", "us" and "our" are a reference to Kovea Limited, the owner of this Site.
Amendments to terms and conditions
We reserve the right to amend these terms and conditions from time to time. Any amendments will be effective immediately upon notification on this Site. Your continued use of this Site following such notification will represent an agreement by you to be bound by the terms and conditions as amended.
Ordering procedure
You can offer to purchase goods described in this Site ("Goods") for the price listed on the Site or as advised by Kiwi Camping from time to time ("Price"). If you elect to make an offer in the manner provided on the Site you will incorporate the Terms of Trade as part of that offer and any contract which might be formed. In particular you acknowledge that the Price will be determined in accordance with Clause 1 of our Terms of Trade.
Your order must contain your name, email address, credit card details and any other ordering information specified on this Site.
You may not cancel an order once it has been submitted. We will only accept cancellation of an order if it is in accordance with Clause 5 of our Terms of Trade.
If we reject your offer to purchase the Goods for any reason, neither of us will be under any further liability to the other arising out of your original offer or our non-acceptance of that offer.
We give no undertaking as to the availability of the Goods advertised on the Site. The Goods may not be available for purchase in your particular country or locality. The reference to such Goods on the Site does not imply or warrant that these Goods will be available at any time in your particular location. You should check with us as to the availability of specific Goods in your area.
Delivery of the Goods to you will be effected in the manner described on this Site and more specifically in accordance with Clause 4 of the Terms of Trade.
Title in the Goods will not pass to you until payment has been received. The risk of any loss or damage to the Goods passes to you at the date we deliver. Risk and ownership in the goods is further detailed in Clause 6 of the Terms of Trade.
Payment must be carried out in the way described on the Site and in accordance with Clause 2 of the Terms of Trade. Prices are exclusive of goods and services tax (if applicable) and/or any other, duties and charges imposed or levied in New Zealand or overseas in connection with the supply of goods as set out in Clause 1 of the Terms of Trade.
The Goods are offered for sale only to persons who can make legally binding contracts.
Cancellation due to error
You acknowledge that despite our reasonable precautions, Goods may be listed at an incorrect price or with incorrect information due to a typographical error or similar oversight. In these circumstances, we reserve the right to cancel the transaction, notwithstanding that your order has been confirmed and your credit card has been charged. We reserve this right up until the time of delivery of the Goods to you. If a cancellation of this nature occurs after your credit card has been charged for the purchase, we will immediately issue a credit to your credit card account for the amount in question.
New Zealand Consumer Guarantees Act 1993
If you purchase Goods from us for a business purpose, then you agree that the statutory guarantees and implied terms, covenants and conditions contained in the New Zealand Consumer Guarantees Act 1993 are excluded by mutual agreement and do not apply as set out in Clause 9 of the Terms of Trade.
Disclaimer
We do not accept responsibility for any loss, damage (including direct, special, or consequential loss or damage), however caused (including through negligence) which you may directly or indirectly suffer in connection with your use of this Site or any linked website, nor do we accept any responsibility for any loss arising out of your use of or reliance on information contained on or accessed through this Site.
The extent of our liability in relation to any Goods purchased over the Site is specified in Clause 10 of our Terms of Trade, and as set out below. Except as otherwise stipulated in these terms and conditions or in the Terms of Trade, we will not accept liability to you in respect of any loss or damage (including direct, special or consequential loss or damage) however caused (including through negligence) which may be suffered or incurred by you or which may arise directly or indirectly in respect of Goods supplied pursuant to an order placed on this Site or in respect of any failure or omission on our part to comply with our obligations as set out in these terms and conditions and in the Terms of Trade.
To the extent permitted by law, any condition or warranty which would otherwise be implied into these terms and conditions is hereby excluded. Where legislation implies any condition or warranty, and that legislation prohibits us from excluding or modifying the application of, or our liability under any such condition or warranty, that condition or warranty will be deemed included but our liability will be limited for a breach of that condition or warranty to one or more of the following at our option (and in accordance with Clause 8 of the Terms of Trade):
(a) where the breach relates to Goods:
(i) the replacement of the Goods or supply of equivalent goods;
(ii) the repair of such Goods;
(iii) the payment of the cost of replacing the Goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the Goods repaired.
Exception to disclaimer
The disclaimer set out in these terms and conditions does not attempt or purport to exclude liability arising under statute if, and to the extent, that such liability cannot be lawfully excluded.
Specific warnings
You must ensure that your access to this Site is not illegal or prohibited by laws which apply to you.
You must take your own precautions to ensure that the process which you employ for accessing this Site does not expose you to the risk of viruses, malicious computer code or other forms of interference which may damage your own computer system. For the avoidance of doubt, we do not accept responsibility for interference or damage to your computer system which arises in connection with your use of this Site or any linked site.
We make no warranty that Goods acquired from us over this Site will meet your requirements.
Details relating to the Goods have been prepared in accordance with New Zealand law and may not satisfy the laws of another country. We do not warrant that the details on this Site concerning those Goods will satisfy the laws of any other country. It is your responsibility to determine whether these details satisfy the laws of the jurisdiction where you reside (if that jurisdiction is outside of New Zealand) and if the details do not satisfy the laws of your jurisdiction, you may not order any Goods from this Site.
You acknowledge that despite all reasonable precautions on our part, there is a risk of unauthorised access to or alteration of your transmissions, data or of information contained in your computer system or on this Site. We do not accept responsibility or liability of any nature for any such losses which you may sustain as a result of such activity.
Copyright
Copyright in this Site (including text, graphics, logos, icons, sound recordings and software) is owned or licensed by us. Other than for the purposes of, and subject to the conditions prescribed under the New Zealand Copyright Act 1994 and similar legislation which applies in your location, and except as expressly authorised by these terms and conditions, or in any other written agreement between you and us, and in accordance with Clause 19 of the Terms of Trade you may not in any form or by any means:
(a) adapt, reproduce, store, distribute, print, display, perform, publish or create derivative works from any part of this Site; or
(b) commercialise any information, products or services obtained from any part of this Site;
without our prior written permission.
Trade marks
Except where otherwise specified, any word or device to which the ™ or ® symbol is attached is a Trade Mark owned or licensed by us (the "Trade Marks").
If you use any Trade Marks in reference to our activities or Goods, you must seek our express authorisation and at all times comply with Clause 19 of the Terms of Trade. You must not use the Trade Marks in:
(a) or as the whole or part of your own trade marks;
(b) connection with activities or goods which are not ours;
(c) a manner which may be confusing, misleading or deceptive; and/or
(d) a manner that disparages us or our information or the Goods (including this Site).
Intellectual property
All existing or future patent, patent applications, designs, copyright, manufacturing methods, processes, know-how or other industrial or intellectual property ("Intellectual Property") in the Goods is owned by or licensed by us, remains our property and you acknowledge that you have no right, title or interest in or claim to the Intellectual Property in accordance with Clause 19 of the Terms of Trade.
You acknowledge that any improvements to the Intellectual Property discovered by you pursuant to your use of the Goods is our property and you will advise us as soon as possible and assign any such improvements to us, and we will have the sole right to apply for any patents and/or obtain any copyright protection for such improvements.
Restricted use
You are authorised to print a copy of any information contained on this Site, unless such printing is expressly prohibited. You may not however on-sell information obtained from this Site without our written permission.
Privacy policy
Any personal information we may collect will be used by us only to respond to your inquiry or process an order. We may also use any personal information provided by you to measure the use of our Site and to improve its content.
At times cookies may be used to help us serve you better. A cookie is a tiny element of data sent by a website to your browser, which may then be stored on your hard drive so we can recognise you when you return. You may set your browser to notify you when you receive a cookie and, if you wish, to reject it.
We will not release to anyone else personally identifiable data which we have gathered from your visit to our web page unless compelled by law, with your informed consent, to fulfil an order or request you have given to us, or to protect us against unlawful activity, fraud, or any danger to public safety.
All personal information that we collect (including your contact details, and if relevant, credit card details) is kept confidential to the best of our ability. You will appreciate, however, that we cannot guarantee the security of transmission.
How we handle emails
We will preserve the content of any email you send us if we believe we have the legal requirement to do so. Your email message content may be monitored by us for trouble shooting or maintenance purposes or if any form of email abuse is suspected.
Security of information
Unfortunately, no data transmission over the internet can be guaranteed as totally secure. Whilst we strive to protect such information, we do not warrant and cannot ensure the security of any information which you transmit to us. Accordingly, any information that is transmitted to us is transmitted at your own risk. Nevertheless, once we receive your transmission, we will take reasonable steps to preserve the security of such information.
Termination of access
Access to this Site may be terminated at any time by us without notice. Our disclaimer will nevertheless survive any termination.
Governing law
The use of this Site, any contracts formed in conjunction with this Site, and these Terms and Conditions are all governed by New Zealand law. If a dispute arises between you and us it will be decided by alternative dispute resolution, or the New Zealand Courts. The only exception to this is on points of patent, trade mark, or copyright protection. Disputes involving these issues will be governed by the law of the country granting the protection.
Our address
Kovea Ltd
P.O. Box 20137
Hamilton
New Zealand
General
We accept no responsibility for any failure to comply with these terms and conditions where such failure is due to circumstances beyond our control.
If we waive any rights available to us under these terms and conditions on one occasion, this does not mean that those rights will automatically be waived on any other occasion.
If any of these terms and conditions are held to be invalid, unenforceable or illegal for any reason, the remaining terms and conditions will nevertheless continue in full force.
EFFECTIVE: September 2003 TERMS OF TRADE
The following terms will be incorporated into each agreement entered into between the Buyer ("Buyer") and Kovea Limited ("KCC") for the supply of camping and related equipment ("Agreement").
1 Agreement and Price
1.1 KCC agrees to sell and the Buyer agrees to buy camping and related equipment ("Goods") selected at the price specified by KCC ("Price").
1.2 The Buyer agrees that the Price is:
(a) based on the quantity of the Goods supplied;
(b) plus GST, other taxes and duties which may be applicable and any insurance/freight/handling charges; and
(c) subject to and may be altered by KCC due to factory costs and foreign exchange fluctuations.
1.3 Any additional charges will be at the expense of the Buyer, and KCC will invoice the Buyer for such additional charges, providing any supporting invoices received in relation to the charges.
1.4 All Goods ordered are subject to availability.
2 Payment
2.1 All payments are due by the 20th day of the month following the date of invoice or the first business day after such date and such payment date is an essential term of this Agreement.
2.2 The Buyer may not withhold payment or make any deductions from or set off any amount against any amount owing without KCC's prior written consent.
2.3 KCC may impose a credit limit at its sole discretion, and may alter the credit limit without notice. If the credit limit is exceeded by the Buyer, KCC may refuse to supply Goods to the Buyer. If KCC at any time deems the credit of the Buyer to be unsatisfactory it may require security for payment and the Buyer will make such security available.
2.4 In accordance with the Privacy Act 1993 the Buyer authorises KCC to conduct all credit checks and searches of the Buyer, and its financial and business affairs deemed necessary by KCC. The Buyer will provide all necessary written authorisations for such credit checks and searches as requested from time to time by KCC.
3 Interest and costs on overdue accounts
3.1 If the Buyer fails to pay monies on the due date, KCC may (at KCC's discretion):
(a) charge interest on all overdue accounts at a rate of 2.0% per month calculated on a daily basis until it is received in full by KCC but without prejudice to all or any of KCC's other rights and remedies under this Agreement. Any payments received by KCC will be applied firstly against such interest;
(b) seek reimbursement from the Buyer for any legal costs (as between solicitor and client), any debt collection fees and any other costs incurred in the recovery or attempted recovery of an overdue debt; and
(c) revoke, without notice, any previously agreed entitlement to any discount.
4 Delivery
4.1 Delivery of Goods will be made to the address as previously agreed by the parties. If no address is specified or agreed, delivery will be made by the Buyer uplifting the Goods from KCC's premises.
4.2 KCC reserves the right to deliver the Goods by instalment and each instalment will be deemed to be a separate agreement subject to the same conditions of this Agreement.
4.3 If any time for delivery is stated in the order such time will be approximate only and will not be deemed to be an essential term of the Agreement.
5 Cancellation of orders
5.1 Goods will only be accepted by return to KCC, if the Goods are returned:
(a) within seven (7) days of delivery;
(b) in the condition they were in when dispatched by KCC to the Buyer; and
(c) with the original invoice.
5.2 Notwithstanding clause 5.1 KCC has the absolute discretion whether or not to accept returned Goods and to credit any amount to the Buyer for Goods returned in accordance with clause 5.1.
5.3 Goods returned to, and accepted by, KCC within the seven (7) days referred to in clause 5.1 will be subject to a 10% (of net invoice) return handling fee.
5.4 Notwithstanding any other provision of this clause 5, Goods made or supplied to special order are non-returnable.
6 Risk and ownership
6.1 On delivery of the Goods to the Buyer by KCC the Buyer will take responsibility from the moment of delivery and will carry the full risk of liability with no recourse to KCC.
6.2 KCC retains ownership of all Goods until the Buyer:
(a) has paid the full Price for the Goods and all other monies owing by the Buyer to KCC; or
(b) pursuant to these terms resells the Goods.
6.3 The Buyer will ensure that all Goods are stored separately in a way, which will clearly identify KCC's Goods as the property of KCC.
6.4 The Buyer acknowledges that it is in possession of the Goods solely as bailee for KCC until full payment for all Goods has been made. The Buyer will hold the proceeds of sale of all Goods that have not yet been paid for in trust for KCC.
6.5 The Buyer agrees that KCC, its agents and servants (without the need to give notice) may enter the premises where the Buyer is or may be storing the Goods for the purpose of KCC inspecting and/or removing such Goods.
7 Personal Property Securities Act 1999
7.1 Notwithstanding clause 6, the parties acknowledge that the Buyer grants KCC a security interest over all the Goods delivered to the Buyer.
7.2 The Buyer agrees to:
(a) protect KCC's retention of title provisions as provided in clause 6 of these terms of trade;
(b) if required by KCC, cooperate in good faith with KCC to execute the documentation required to register a security interest in favour of KCC on the Personal Property Securities Register and protect KCC's interest in the Goods supplied;
(c) waive any right to receive a copy of the verification statement, pursuant to s148 of the Personal Property Securities Act 1999; and
(d) advise KCC as soon as possible of any change in the Buyer's details, including but not limited to any change of name.
8 Repair and replacement
8.1 KCC warrants that the Goods supplied by KCC are of merchantable quality. If the Goods are found to be defective KCC will have the discretion whether to repair, replace or provide a refund or credit for any such Goods.
8.2 KCC provides a minimum of one (1) years warranty on materials and workmanship (weather damage excluded) on Goods (second hand Goods excluded) KCC manufactures itself.
8.3 KCC gives no warranty on behalf of any manufacturer on Goods KCC does not manufacture, however where possible, KCC will pass on to the Buyer the benefit of any warranty received from the manufacturer.
9 Exclusion of Consumer Guarantees Act 1993 and any statutory or common law implied terms
9.1 If the Buyer acquires the Goods for a business purpose the Buyer agrees that the statutory guarantees and implied terms, covenants and conditions contained in the Consumer Guarantees Act 1993 are excluded and do not apply.
9.2 The Buyer will indemnify and hold harmless KCC from any liability arising from the Buyer on-selling the Goods for a business purpose where the Buyer fails to exclude the application of the Consumer Guarantees Act to such transaction.
10 Limitation or exclusion of liability
10.1 To the extent permitted by law, KCC will be under no liability whatsoever to the Buyer for any indirect, special, incidental, consequential or exemplary damages or losses suffered by the Buyer arising out of these terms and whether actionable in contract, tort (including negligence), equity or otherwise.
10.2 In the event that KCC is found liable, KCC's liability will not exceed the value of the Goods.
10.3 Nothing in these terms of trade is intended to have the effect of contracting out of the Consumer Guarantees Act 1993 except to the extent permitted by that Act.
11 Indemnity
11.1 The Buyer indemnifies KCC against any legal proceedings and any costs involved, where through any acts or omissions of the Buyer in using any of the Goods provided by KCC, KCC becomes liable or where KCC suffers any loss due to any material breach of the terms and conditions of this Agreement.
12 Force majeure
12.1 KCC will not be liable for delay or failure in the performance of any of the obligations imposed by this Agreement, provided that such failure will be occasioned beyond the reasonable control and without the fault or negligence of KCC.
13 Terms and conditions
13.1 No alteration or variation of this Agreement will be binding upon KCC unless authorised by KCC in writing.
14 Termination
14.1 If the Buyer fails to pay any monies owing or otherwise breaches the terms of this or any other agreement with KCC, commits any act of bankruptcy, or being a company does any act, which would render it liable to be wound up or has a receiver appointed over its property, KCC may (without prejudice to any other remedies available to it) suspend or terminate this Agreement and the proportion of the Price owing, calculated according to the Goods supplied, will immediately fall due and payable.
15 Dispute resolution
15.1 In the event of any dispute between the parties in relation to these terms and conditions the parties will first seek to resolve such dispute by promptly giving notice to the other party and in good faith endeavour to resolve the dispute. If the dispute remains unresolved the parties will first seek a resolution through the use of mediation or other informal method of resolution before pursuing arbitration or resolution through the Courts.
16 Notices
16.1 Every notice given under the terms of this Agreement will be sufficiently given if delivered personally, posted or successfully transmitted by fax to the intended recipient at his/her or its last known address or facsimile number.
17 Individual liability and guarantees
17.1 Where the Buyer comprises more than one person carrying on business in partnership, each and every individual partner will be jointly and severally liable to KCC in respect of all or any indebtedness or liability of the Buyer arising out of this Agreement.
17.2 Where the Buyer is a limited liability company or other corporation, each of the directors thereof will, upon demand, and in writing interpose and bind themselves as sureties and co-principal debtors with the Buyer, jointly and severally, for the due and principal payment of all monies and performance of all obligations due by the Buyer arising out of this Agreement.
18 Miscellaneous
18.1 Assignability: The Buyer will not assign or otherwise transfer or encumber its rights or obligations under this Agreement except with the prior written consent of KCC.
18.2 Entire Agreement: This Agreement constitutes the sole understanding of the parties and supersedes all prior understandings, written or oral, which will be of no further force or effect.
18.3 Applicable law: This Agreement will be deemed to be made in New Zealand and will be construed and governed by the laws of New Zealand.
18.4 Waiver: No waiver of any provision of this Agreement will serve as a waiver of any other provision of this Agreement nor as a continuing waiver of such provision and KCC will not have waived or deemed to have waived any provision of this Agreement unless such waiver is in writing and executed by KCC.
18.5 Counterparts: This Agreement may be executed in counterparts (which may be facsimile copies) and all of which, when taken together constitute the one document.
19 Intellectual Property
19.1 The Buyer acknowledges that KCC is the owner or authorised user of the intellectual property rights in the Kiwi Camping brand name and associated brands and logos as notified by KCC to the Buyer from time to time.
19.2 The Buyer agrees:
(a) not to use the intellectual property of KCC except as expressly authorised by KCC from time to time;
(b) at the request of KCC to immediately cease use of, remove and/or otherwise permit KC to remove or withdraw from use any of KCC's brands and/or logos from the Buyers trade premises or elsewhere (including in any electronic media), or from Goods held at the Buyer's trade premises or elsewhere ; and
(c) to ensure that at the request of KCC any third party entity to which the Buyer on-sells any of the Goods in trade will remove and/or permit KCC to remove or withdraw its brands and/or logos from the use of such third party at any time upon KCC's request.
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