GENERAL TERMS AND CONDITIONS OF PURCHASE (UBCO LIMITED)
These General Terms and Conditions of Purchase (“Terms”) apply between Ubco Limited, a New Zealand registered company number 5640588 (“Ubco”), and you (“the Customer”) and govern the purchase of any Products you make from Ubco through the Website or otherwise. By placing an order for Products you are deemed to have read and agreed to be bound by these Terms.
Ubco reserves the right to amend these Terms from time to time. Amendments will be effective immediately upon being placed on the Website. Any order for Products following such amendments being placed on the Website will represent an agreement by you to be bound by the Terms as amended. Such amendments may include replacing these Terms with entirely new Terms.
3. ORDERS AND DELIVERY
(a) Products may be ordered from the Website or by contacting an Ubco representative.
(b) No order for Products will be binding upon Ubco unless and until its acceptance has been confirmed to the Customer.
(c) All Products displayed on the Website are subject to availability. Ubco does not guarantee that Products shown on the Website are in stock and available to order.
(d) Upon accepting an order Ubco will agree a delivery date with the Customer.
(e) You may not cancel an order once Ubco has confirmed acceptance, except with the prior written agreement of Ubco.
(f) Ubco will use all reasonable endeavours to dispatch orders to meet the agreed delivery date but will be under no liability to the Customer for any delay or failure to make delivery of the Products.
(g) Products will be delivered to the closest authorised Ubco dealer (as determined by Ubco) to the Customer’s nominated location. Products will be assembled by the dealer at which point the Customer may then either collect the Products from such dealer or request the dealer to arrange delivery to the Customer’s address, with freight to be charged to the Customer.
(h) Risk in the Products will pass on delivery.
(i) In placing an order you will be required to supply certain personal information such as your name, email address, delivery address, credit card details and other information as specified on the Website. Although Ubco will take all reasonable steps to protect your personal information supplied, Ubco cannot guarantee the complete security of any data you disclose online. You accept the inherent risk of providing personal information and using the Website.
4. PRICES AND PAYMENT
(a) Prices for the Products are in NZD and set out in the Price List, or as otherwise agreed in writing between Ubco and the Customer. Ubco reserves the right to amend the Price List from time to time without notice.
(b) Payment for all Products to be supplied by Ubco to the Customer must be made in full prior to dispatch unless credit terms have been agreed with Ubco. Where credit terms have been approved by Ubco, the standard terms are 7-days from date of invoice unless agreed otherwise by Ubco. All payments must be made without setoff or deduction.
(c) Late payment will be considered a breach of these Terms and will entitle Ubco to charge default interest at the rate of 12% per annum. The interest will be calculated on a daily basis from the date payment was due until the date payment is received in full by Ubco. Any failure or delay by Ubco to charge interest on any unpaid account or to exercise any of its rights will not operate as a waiver of those rights. Ubco may apportion payments to outstanding accounts as it sees fit.
(d) The name that will appear on your credit card statement will be UBCO.
5. TITLE RETENTION
(a) Retention of Title: Ubco retains title to, and all ownership rights and interest in, all Products delivered to the Customer until such time as title passes to the Customer. The Security Interest of Ubco in the Products extends to and includes all proceeds derived from the Products.
(b) Passing of Title: Title and ownership rights in the Products pass to and become vested in the Customer only at the point in time that Ubco has received payment in full in respect of all delivered Products. Until Ubco receives such payment, Ubco’s Security Interest in the Products continues.
(c) PPSA: The Customer acknowledges that Ubco’s Security Interest in all Products and their proceeds is security for payment of all delivered Products and all moneys payable by the Customer to Ubco (whether under these Terms or otherwise). The Customer:
(i) will, when requested by Ubco, promptly execute any documents and do anything else required by Ubco to ensure that the Security Interest created under these Terms constitutes a first ranking perfected Security Interest over the Products and their proceeds, including any information Ubco reasonably requires to complete a Financing Statement or a Financing Change Statement;
(ii) waives any right to receive a copy of a Verification Statement under the PPSA;
(iii) will pay to Ubco all costs, expenses and other charges incurred, expended or payable by Ubco in relation to the filing of a Financing Statement or a Financing Change Statement in connection with these Terms.
(iv) agrees that nothing in sections 114(1)(a), 116, 120(2), 121, 125 to 127, 129, 131, 133 and 134 of the PPSA shall apply to these Terms.
(v) acknowledges that these Terms constitute a Security Agreement for the purposes of the PPSA;
(vi) will not allow a Security Interest to be created or registered over the delivered Products in priority to a Security Interest held by Ubco; and
(vii) will on demand, pay all costs and expenses of, or incurred by, Ubco as a result of enforcing any of its rights under clause 5 of these Terms
(d) The provisions of clause 5 survive termination of these Terms.
(a) Examination of the Products upon Delivery: The Customer must examine the Products immediately upon delivery and notify Ubco in writing within 5 days of delivery, of any defects in the Products which have or appear to have occurred during transportation together with details of the defects. Failure to provide such notice will discharge Ubco from all liability in respect of all defective Products where such defects have occurred during transportation.
(b) Repair / Replace: Subject to compliance by the Customer with clause 6a Ubco will, in its sole discretion, repair or replace Products damaged or lost during transportation arranged by it.
(c) Ubco Warranty: Subject to clauses 6d to g (inclusive), Ubco gives the warranty provided on the Website. These warranties do not detract from the Consumer Guarantees Act 1993.
(d) Procedure: To obtain the benefit of the warranty contained on the Website the Customer must follow the warranty claim procedure set out on the Website.
(e) Maximum Liability: Ubco’s maximum liability in contract, tort, equity, statute, regulation or otherwise for any loss, damage or injury directly or indirectly arising from any defect in, or non-compliance of, the Products or any other breach by Ubco of these Terms will not in aggregate, exceed the price paid by the Customer for the particular Product that caused loss, damage or injury.
(f) No Consequential Loss: Except as set out in clause 6e, Ubco is not liable to the Customer for any loss, damage, costs, legal costs, professional and other expenses of any nature whatsoever incurred or suffered by the Customer, or by any other third party, whether direct or consequential arising out of any dispute or contractual, tortious or other claims or proceedings in relation to the Products.
(g) Exclusion of Other Warranties: Any condition or warranty other than those relating to the title of the Products which might otherwise be implied or incorporated within these Terms by reason of statute or common law or otherwise is expressly excluded to the extent permitted by law.
7. PROPRIETARY RIGHTS
(a) All Proprietary Rights in the Products Held by Ubco: All intellectual property rights in the Products, including patents, trademarks, calculations, data, specifications, formulations, designs, drawings, papers, documents, procedures, and any other items, material or information whatsoever given to the Customer by Ubco relating to the Products is owned by Ubco and the supply of Products does not confer any right or licence upon the Customer to use, exploit or otherwise utilise any such intellectual property rights.
In relation to the service of notices under these Terms:
(a) any notice or other document must be in writing and will be deemed to have been duly given by:
(ii) post; or
(iii) by facsimile or email.
(b) A notice or document is taken to be received:
(i) if by delivery when it is delivered;
(ii) if sent by post, 5 Business Days after posting; and
(iii) if a facsimile or email, when transmitted to the correct facsimile number or email address of the recipient in its entirety without any notification of delayed or failed delivery
9. PRODUCT DESCRIPTIONS
Details contained on the Website relating to Products, including any descriptions or claims made in relation to Products, have been prepared in accordance with New Zealand law and may not satisfy the laws or regulations of any other jurisdiction. Ubco does not warrant that the details, descriptions or claims on the Website concerning Products will satisfy the laws of any other jurisdiction. It is your responsibility to determine whether the details, descriptions and claims satisfy the laws of the jurisdiction where you reside and if the details, descriptions or claims do not satisfy the laws of your jurisdiction, you may not order any Products from the Website.
Governing Law And Jurisdiction: The validity, construction and performance of these Terms is governed by New Zealand law. All disputes, claims or proceedings between the parties relating to the validity, construction or performance of these Terms are subject to the non-exclusive jurisdiction of the courts of New Zealand to which the parties irrevocably submit.
(a) Force Majeure: Neither Ubco or the Customer are liable for any breach or non‑observance of any of these Terms if such breach results from or is caused by reason or on account of any circumstances beyond their control including (but without limitation) acts of God or the Government’s enemies, revolution, rebellion, insurrection, riots, civil commotion, strikes, lock-outs of workmen, embargoes, confiscation, expropriation, floods, natural disasters or any inevitable accident. A party shall not be entitled to claim relief under this clause if the failure was caused by a lack of funds of that party.
(b) Severance: If any part or a provision of these Terms is judged invalid or unenforceable in a jurisdiction, it is severed for that jurisdiction and the remainder of these Terms will continue to operate.
(c) No Waiver: A provision or right under these Terms may not be waived except in writing signed by the party granting the waiver.
(d) Costs: The Customer must pay Ubco’s costs (including legal costs, as between solicitor and client) of and incidental to the enforcement or attempted enforcement of Ubco’s rights, remedies and powers under these Terms.
In these Terms unless the context otherwise requires:
“Business Day” means any day other than a Saturday, Sunday or public holiday in New Zealand.
“GST” means the goods and services tax, sales tax or other tax arising in New Zealand or elsewhere on the supply of the Products.
“the Products” means the products Ubco agrees to supply you, including any spare parts.
“Price List” means the most recent price list for the Products as shown on the Website. Prices shown in the Price List are expressed in NZD and are inclusive of GST.
“PPSA” means the Personal Property Securities Act 1999 (and any regulations made pursuant to it).
“Security Interest” has the meaning given to it in the PPSA;
“User Manual” means the user manual for the Products that will accompany delivery of the Products.
“Website” means www.ubcobikes.com
In these Terms, unless the context otherwise requires:
(a) reference to any party includes that party’s successors and permitted assigns, including any person taking by way of novation;
(b) words importing the singular include the plural (and vice versa) and words indicating a gender include every other gender;
(c) reference to any statute or statutory provision includes a reference to the statute or statutory provision as from time to time amended, extended or re-enacted;
(d) references to clauses are references to clauses in these General Terms and Conditions.
(e) references to $ or dollar is to New Zealand dollars;
(f) reference to a party, person or entity includes an individual, partnership, firm, company, and any other entity, whether or not incorporated and whether or not having a separate legal personality.