Terms and Conditions
Table of Contents
1. Definitions and Interpretation
2. Terms and Conditions
3. Acceptance
4. Membership
5. Provision of Goods or Services
6. Intellectual Property
7. Privacy
8. Acceptable Use
9. Indemnity and Liability
10. Warranties and Representations
11. General Provisions
RECITALS
Access and use of this Website is subject to the terms and conditions of use outlined in the Terms.
1. Definitions and Interpretation
1.1. In these Terms (including the recitals) unless the context otherwise requires:
•“Account Information” has the meaning given in clause 4.2;
• “Goods” means the products available for purchase on the Website;
• “Intellectual Property” or “Intellectual Property Rights” includes all present and future rights in relation to copyright, trade marks, designs, patents or other proprietary rights, or any rights to registration of such rights whether created before or after the date of these Terms;
• “Member” or “Membership” has the meaning given in clause 4.1;
• “Site Content” means all material, content and information made available on the Website including but not limited to written text, graphics, images, photographs, logos, trademarks, audio material, video material and any other forms of expression;
• “Website” means the website as identified in the Schedule;
• “Website Owner”, “We”, “Our” or “Us” means the owner of the Website as identified in the Schedule;
• “Terms” means this agreement (including the recitals and the schedule), as amended from time to time;
• “You”, “Your” means you as the user of the Website. 1.2. In these Terms, unless the context otherwise requires: (a)
1.2. In these Terms, unless the context otherwise requires:
(a) headings are for convenience only and do not affect their interpretation or construction;
(b) the singular includes the plural and vice versa;
(c) references to recitals, clauses, subclauses, paragraphs, annexures or schedules are references to recitals, clauses, subclauses, paragraphs, annexures and schedules of or to these Terms;
(d) words importing a gender include other genders;
(e) the word “person” means a natural person and any association, body or entity whether incorporated or not;
(f) where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;
(g) a reference to any statute, proclamation, rule, code, regulation or ordinance includes any amendment, consolidation, modification, re-enactment or reprint of it or any statute, proclamation, rule, code, regulation or ordinance replacing it;
(h) all monetary amounts are in charged in NZD currency;
(i) a reference to time refers to New Zealand Standard Time;
(j) “includes” is not a word of limitation;
(k) no rule of construction applies to the disadvantage of a Party because these Terms are prepared by (or on behalf of) that Party;
(l) a reference to any thing is a reference to the whole and each part of it;
(m) a reference to a group of persons is a reference to all of them collectively and to each of them individually; and
(n) a reference to a document includes all amendments or supplements to, or replacements or novations of, that document.
2. Terms and Conditions
2.1. Access to and use of this Website is governed pursuant to these Terms. By using or reading the content of the Website, You signify that you have read, understood and agree to be bound by these Terms.
2.2. The Terms are periodically reviewed by Us and We reserve the right to change the Terms by updating this page at our sole discretion. You should review this page regularly as any changes to the Terms take immediate effect from the date of the publication on this page.
2.3. While every attempt is made to ensure the information provided on our site is accurate, we are not responsible for any product image and information errors and omissions.
3. Acceptance
3.1. In order to use this Website, You must first agree to the Terms.
3.2. You accept the Terms by:
(a) reading, reviewing or browsing the content on the Website;
or (b) clicking to accept or agree to the Terms, where this option is made available to You by the Website.
3.3. Notwithstanding clause 3.2, You may not accept the Terms or access the Website if:
(a) You are not of legal age to form a binding contract with Us; or (b) You are a person barred from entering into contracts under legislation, in which case, You must immediately leave the Website.
3.4. By accepting the Terms, You agree that this is clear and unequivocal proof that the Terms herein are not unconscionable, that there is no unfair bargaining power or position, that there is no duress, and that You have carefully read and understood the Terms.
3.5. If You do not understand any part of the Terms You should seek independent legal advice.
3.6. Before You continue, You should print off or save a local copy of the Terms for Your records.
4. Membership
4.1. In order to use this Website, You are required to provide personal information about yourself such as identification or contact details to become a registered member (“Member” or “Membership”).
4.2. In becoming a Member, You will be issued with a User ID and password (“Account Information”).
4.3. You agree that any information You provide to Us will always be accurate, correct and up to date. We may suspend or terminate Your access to the Website if any information provided is inaccurate, outdated or incomplete.
4.4. In creating a Membership, You understand and agree that access and use of the Membership is limited, non-transferable and allows for the sole use of the Website by the Member.
4.5. In creating a Membership, You agree to receive commercial messages from Us. You may unsubscribe from such commercial messages at any time by using the “opt-out” function within the message.
5. Provision of Goods or Services
5.1. Should you order Goods:
(a) You will pay for the costs of the Goods in accordance with the payment terms on the Website, including any applicable costs of packaging and posting;
(b) We may use a third-party banking merchant to process payments made through the Website and, in these circumstances, Your use of these payment facilities may be subject to the terms and conditions of the third-party banking merchant;
(c) You agree to indemnify us against any loss directly or indirectly suffered due to Your failure or delay in making payment in full or in part and notwithstanding that the failure or delay may be out of Your control;
(d) We undertake to accept or reject your order for Goods within seven (7) days of the order being made. If We have not responded to you within seven (7) days, your offer is deemed to be rejected. We are not required to give reasons for rejecting Your offer to purchase the Goods;
(e) once you have submitted an order for Goods, you may not cancel that order even if Our acceptance or rejection of Your offer is still pending;
(f) delivery of Your ordered Goods will be in accordance with delivery terms on
the Website;
(g) risk in Your ordered Goods will pass to You upon dispatch of the Goods to You;
(h) title to Your ordered Goods will pass to You upon Our receipt of Your payment for the Goods;
(i) upon receipt of Your ordered Goods, if You believe that the Goods are defective, You will:
(i) as soon as reasonably practicable, notify Us of the alleged defect;
(ii) following such notification, return the Goods to Us;
(iii) provide us with ten(10) days from Our receipt of the Goods in which to determine, in Our reasonable opinion, whether the Goods are defective;
(iv) where We are of the opinion that the Goods are defective, We will, in our absolute discretion, provide You with a replacement Good or a credit note for the price of the Good (where You have already paid for the Good); and
(v) where We are of the opinion that the Goods are not defective, We will return the Goods to You at your own cost.
(j) unless otherwise specified, any monetary amounts referred to on the Website are in NZD dollars. We reserve the right to amend the cost of the Goods at any time; and
(k) a payment processing fee of 2.35% for Visa/MasterCard and 4.40% for Amex/Diners applies to all purchased made by credit or debit cards and is not included in the price listed.
(l) if payment in full for the Goods is not made in accordance with the payment terms on the website then you will be in default under the Terms; and
(i) Interest on the default monies will be payable at the rate of 2% above the prevailing BNZ Home Loan rate per annum at the time of default, payable on a daily basis from the due date until payment in full is made.
(ii) You will be liable for all expenses (including on a solicitor/client legal costs basis) incurred by us as a result of the defaults.
(iii) We may withhold the further supply of Goods.
5.2. Any special conditions or terms of sale specified in the Website prevail over this clause.
6. Intellectual Property
6.1. The Site Content is protected by copyright and We reserve all Intellectual Property Rights which may subsist in the Site Content and/or the Website.
6.2. By accepting the Terms, You are granted a non-exclusive license to:
(a) view the Website;
(b) print pages from the Website in its original form; and
(c) download any material from the Website for caching purposes only.
(d) use, under an non exclusive, non-transferrable Licence, any software provided with the Goods.
6.3. You must not, without Our prior written consent, which may be withheld at Our absolute discretion:
(a) copy, republish, reproduce, duplicate or extract Site Content;
(b) redistribute, sell, rent or license any Site Content; or
(c) edit, modify or vary the Site Content.
7. Privacy
7.1. We collect and store the personal information you enter on the Website, including any such information you provide to become a Member. The personal information we collect will be maintained in accordance with Our privacy policy available on the Website.
8. Acceptable Use
8.1. You must not use, or cause this Website to be used, in any way which:
(a) breaches any clause of the Terms;
(b) infringes our or any third party’s Intellectual Property Rights;
(c) is fraudulent, illegal or unlawful; or
(d) causes impairment of the availability or accessibility of the Website.
8.2. You must not use, or cause this Website to be used, as a medium which stores, hosts, transmits sends or distributes any material which consists of:
(a) spyware;
(b) computer viruses;
(c) Trojans;
(d) worms;
(e) keystroke loggers; or
(f) any other malicious computer software.
8.3. We reserve the right to terminate your Membership effective immediately, should you breach the terms of this Agreement. You may not access the Website upon termination of your Membership.
9. Ownership
9.1. Property in and ownership of the Goods remains with us until all money you owe to us (whether under this contract or otherwise) has been paid in full.
9.2. If the you are in default under these terms and conditions you will at our request:
9.2.1. Re-deliver the Goods to us or do anything reasonably necessary to allow us to retake possession of them; and
9.2.2. Make any records available which may assist us to trace the proceeds of sale of the Goods.
9.3. You grant a Security interest to us in respect of:
9.3.1. The Goods (“the Secured Goods”).
9.4. If you are in default under these terms and conditions then we will be entitled, without notice, to repossess the Secured Goods. You authorise us or our representatives, servants, agents or employees to enter the Property where the Secured Goods are situated for the purpose of repossession. We will not be liable for any costs, expenses, damage, loss of any kind suffered by you as a result of repossession.
9.5. If we take possession of the Secured Goods or the proceeds and after deduction of all money you owe to us (including any interest due and including any expense occurred by the Supplier in enforcing its rights including legal expenses as between solicitor and client) there is a surplus, we will pay that surplus to you.
10. Personal Property Securities Act 1999 (“PPSA”)
10.1. You acknowledge that we have a security interest in the Secured Goods (“Collateral”) supplied to you but not paid for under these terms and conditions.
10.2. We reserve the right at our discretion to register a financing statement in respect of each category or Goods supplied to you which comprises collateral. On the request by us you will promptly execute any documents and do anything else required by us to ensure that our security interest in the collateral created by these terms and conditions constitutes a perfected security interest over the Goods comprising collateral.
10.3. You will not agree to allow any person to file a financing statement over the collateral without our prior consent and will notify us immediately if you become aware of any person taking steps to file a financing statement against any of the collateral.
10.4. You and guarantor (if any):
10.4.1. Agree(s) that nothing in s114(1)(a), 117(1), 133, and 134 of the PPSA will apply to these terms and conditions; and
10.4.2. Waive(s) your right to do any of the following:
10.4.2.1. Object to our proposal to retain any personal property under s121 of the PPSA;
10.4.2.2. Not have Goods damaged when we remove an accession under s125 of the PPSA;
10.4.2.3. Receive notice of the removal of an accession under s129 of the PPSA;
10.4.2.4. Apply to the Court for an order concerning the removal of an accession under s131 of the PPSA;
10.4.2.5. To receive a copy of the verification statement confirming registration of a financing statement or a financing change statement relating to the security interest created by these terms and conditions.
11. Indemnity and Liability
9.1. General indemnity You agree to indemnify Us, on demand, against any claim, action, damage, loss, liability, cost, charge, expense or payment which We may pay, suffer, incur or are liable for, in relation to any act You do or cause to be done, in breach of the Terms.
9.2. General limitation of liability Subject to any applicable legislation, Our total liability for any loss, damage or reliance shall be limited to either replacement of the Goods, repair of Goods, or a refund of the price paid for the Goods (as We determine in our absolute discretion)
9.3. Acceptance By using this Website, You agree and accept that the indemnity and limitations of liability provided in this clause 9 are reasonable.
12. Warranties and Representations
10.1. To the greatest extent permissible by law, We make no warranty:
(a) as to the availability of specific Goods on our Website;
(b) whether express or implied, as to merchantability or the fitness of the Goods for a specific purpose, whether or not You notified Us of such a purpose. You undertake to make Your own enquiries as to the suitability of the Goods for Your purpose(s) prior to entering into this Agreement;
(c) as to the accuracy of the description of the Goods. Where We become aware of any mis-description, we reserve the right to correct any error or omission.
10.2. Images of the Goods have been provided for illustrative purposes only and We do not guarantee that any image will reproduce in true colour nor that any given image will reflect or portray the full design or options relating to such Goods.
10.3. The use of this Website is at Your own risk. The Site Content and everything from the Website is provided to You on an “as is” and “as available” basis without warranty or condition of any kind.
10.4. None of our affiliates, directors, officers, employees, agents, contributors, third party content providers or licensors make any express or implied representation or warranty about the Site Content or Website.
10.5. The Website may from time to time contain hyperlinks to other websites. Such links are provided for convenience only and we take no responsibility for the content and maintenance of or privacy compliance by any linked website. Any hyperlink on our website to another website does not imply our endorsement, support, or sponsorship of the operator of that website nor of the information and/or products which they provide.
13. General Provisions
11.1. Any provision of, or the application of any provision of these Terms which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.
11.2. Any provision of, or the application of any provision of these Terms which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
11.3. If a clause is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in these Terms.
11.4. These Terms are subject to the New Zealand Courts and jurisdiction and any legal action required to cover or reclaim costs, fees or outstanding account balances will be initiated in New Zealand Website:
Website Owner: Pacific Vision International Ltd