# 32096 ∕ © EC Credit Control (NZ) Limited
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Rose Willis T/A
Magic At Willis
Address: 41 Chelsea StreetLinwood, CHRISTCHURCH 8062
Phone: 021 0236 2138
Email: willis.mgt@magicatwillis.co.nz
Web: www.magicatwillis.co.nz
TERMS OF TRADE
PART A: OVERVIEW OF THESE TERMS
1. Introduction
1.1 These Terms set out all of the terms and conditions that apply to Products
and Services that we supply to you.
1.2 Any other terms and conditions will not apply unless expressly approved in
writing by us for a particular Order.
1.3 We may update these Terms on notice to you in writing. Our updated Terms
will apply to all Products and Services you order after we have notified you
that we have updated our Terms.
PART B: PRODUCTS AND SERVICES
2. Order process
2.1 You may order Products and Services from us in accordance with our order
processes that we advise to you at any time.
2.2 All Orders are subject to acceptance by us. We may accept an Order (in
whole or in part) by issuing an invoice for the applicable Products and
Services, delivering the Products and Services or otherwise confirming the
order in writing.
2.3 We are under no obligation to enquire as to the authority of any person
placing an Order on your behalf.
2.4 You may request Variations to Orders. However, acceptance is at our
discretion and is subject to our approval in writing, and in accordance with
clause 7.
3. Delivery of Products and Supply of Services
3.1 We will use reasonable efforts to deliver Products and provide Services on
the Delivery Date specified in the relevant Order. However, unless
expressly agreed otherwise, the Delivery Date is indicative only.
3.2 We will deliver the Products and provide the Services at the delivery location
set out in the relevant Order or any other location agreed with you in writing.
3.3 If you request that we deliver the Products to an unattended location, then
the Products shall be left at your sole risk. In the event that the Products are
lost, damaged or destroyed then replacement of the Products shall be at
your expense.
3.4 Subject to clause 16, if the delivery location is at your premises, you must
provide our Representatives with suitable access to your premises during
normal business hours, together with any assistance reasonably required
by our Representatives to deliver the Products and perform the Services.
4. Supply of Products
4.1 Clauses 4 and 5 applies if your Order relates to Products.
4.2 We may deliver Orders in instalments (unless agreed otherwise).
4.3 If you delay, fail or refuse to accept delivery of Products, the Products will
be treated as delivered when we were willing and able to deliver the
Products. Without affecting any other rights we may have, we may charge
you for any reasonable expenses or additional costs incurred by us as a
result of the delay, failure or refusal to accept delivery (including storage).
4.4 Risk in the Products passes to you on delivery.
4.5 You are responsible for ensuring that any instructions, recommended uses,
applications and installation methods are followed for Products and any
cautions and/or warnings are observed.
5. Defects
5.1 You must inspect the Products on the date of delivery and notify us of any
alleged defect or damage or incorrect Products or quantity (Defects). Upon
request, you must allow us to inspect, or return to us, any defective or
damaged Products. You should notify us of any alleged Defects as soon as
possible to enable us to confirm that any Defects occurred before delivery
to you.
5.2 If there are any Defects in an Order, the remedies set out in clause 24.1 will
apply.
6. Cancellation
6.1 Either party may cancel an Order by written notice if the other party:
(a) commits a material breach of these Terms which is not remedied
within 20 Business Days of written notice of the breach from the other
party; or
(b) suffers an Insolvency Event.
6.2 If we are unable to deliver any Products or Services to you, due to reasons
beyond our reasonable control, we may cancel the Order (in whole or in
respect of any instalment) by giving written notice to you. We will repay you
any amount you have paid to us in advance for the relevant Products and/or
Services. We will not be liable for any loss or damage arising from such
cancellation.
6.3 We will not accept cancellation of any Order for Products made to your
specifications, or for non-stocklist items, after the Order has been accepted
by us except in accordance with clause 6.
7. Variations
7.1 We may require variations to an Order if we identify factors that affect
delivery of the Products and Services to you, before or during our provision
of the Products and Services. Any such variations will be submitted to you
for approval (Variation Notice). You must respond to a Variation Notice as
soon as possible (and within 10 Business Days). We may suspend or delay
provision of the Products and Services pending your approval.
7.2 If you do not respond to a Variation Notice within 10 Business Days, we
may assume that you have accepted the applicable variations.
7.3 If you notify us, within 10 Business Days of a Variation Notice, that you do
not accept the variations, we will cancel the Order (or, if applicable, the
remaining Products and Services to be provided under the Order) on notice
to you. We will repay you any amount you have paid to us in advance for
the Products and Services that we do not provide as a result of such
cancellation (less any unrecoverable costs that we have incurred).
PART C: PRICE
8. Price
8.1 The Price for Products and Services will be:
(a) calculated in accordance with our current price list as at the date you
submit the relevant Order;
(b) as indicated on any invoice we provide to you; or
(c) the Price that we have quoted for the Products and Services (subject
to clause 8.4).
8.2 We may update our price list at any time on notice to you in advance. Any
such updates will only apply to Orders placed after the effective date of the
update.
8.3 We may charge you for freight, insurance, installation, disbursements and
any applicable taxes, duties and levies, in addition to the Price.
8.4 Where we provide a quotation, proposal or estimate:
(a) unless otherwise specified, the quotation, proposal or estimate is
valid for 30 days from the date of issue and may be subject to such
further conditions as are expressly set out in the quote, estimate or
pricing;
(b) we may withdraw the quotation, proposal or estimate at any time
before you accept it or we accept an Order by notice in writing to you;
and
(c) the quotation, proposal or estimate will be exclusive of any applicable
additional amounts referred to in clause 8.3.
PART D: PAYMENT TERMS
CONTENTS
1. PART A: Overview of these Terms ................................................. 1
2. PART B: Products and Services ..................................................... 1
3. PART C: Price ................................................................................ 1
4. PART D: Payment Terms................................................................ 1
5. PART E: Compliance and Information ............................................. 2
6. PART F: Dispute Resolution and Liability ........................................ 3
7. PART G: General ............................................................................ 3
8. PART H: Dictionary ......................................................................... 4
9. PART I: Specific Terms ................................................................... 4
Part B sets out details about placing Orders. It also sets out the process that
applies if there are any issues with an Order or if an Order is cancelled.
Part C sets out terms relating to the Price for the Products and Services.
Under these Terms, we may supply Products and Services to you on credit. It
is very important to us that you pay us in full by the due date for payment.
The following clauses provide additional protections for us to reflect that
arrangement, including terms that will apply if there are any delays or disputes
relating to payments.
These Terms of Trade apply to all Products and Services that we supply to
you.
At Rose Willis T/A Magic At Willis, ensuring our Terms are transparent and
easy to understand is important to us. If you have any questions or are unsure
about anything, please contact us.
To make these Terms easy to use, we:
(a) have set out a ‘Dictionary’ in Part H, which explains the specific
meaning, for the purposes of these Terms, of the capitalised words used
in these Terms; and
(b) have included summaries / outlines for each Part in blue boxes – these
are intended for guidance only and do not replace any of the terms in
these Terms.
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9. Payment
9.1 You must pay us all Amounts Owing to our bank account (notified to you
and updated at any time) or any other payment method that we agree with
you.
9.2 Payment shall be:
(a) before delivery of the Products; or
(b) at the time an Order is placed for any specialised or non-stocklist
Products;
(c) as indicated on our invoice; or
(d) no later than 7 days from the date of the invoice (unless otherwise
stated on the invoice), and
(e) in full without deduction, withholding, set-off or counterclaim.
9.3 If you have any dispute relating to an invoice issued by us, you:
(a) must notify us of that dispute in writing within 5 days from the date of
invoice (after that period, unless there is a manifest error, you will be
deemed to have accepted the invoice); and
(b) will only withhold payment of the amount in dispute and will, upon
resolution of any dispute, immediately pay the balance (if any) due
to us.
9.4 We and you each agree to promptly deal with any disputed invoices and,
where possible, to resolve disputes before the due date for payment.
10. Credit terms and repayment obligations
10.1 The supply of Products and Services to you on credit is subject to our prior
approval. We may use the services of credit reporters and debt collection
agencies (in accordance with clause 17.3).
10.2 You must notify us immediately:
(a) if you suffer an Insolvency Event. Any Amount Owing will, whether
or not due for payment, immediately become due and payable if an
Insolvency Event occurs; or
(b) if you are a company and there is a material change in your effective
management or ownership.
11. Deposit and guarantee
11.1 We may require that you pay us in advance, or pay a deposit, or provide a
guarantee or other security, before we supply Products or Services, as
security for any Amount Owing.
11.2 If we cancel an Order (for any reason other than your breach of these
Terms), we will refund any deposit that you have paid to us in full.
Otherwise, any deposit that you pay to us is non-refundable, unless we
expressly agree otherwise in writing.
12. Rights to recover Products
12.1 We retain ownership of all Products that we supply to you until we have
received payment in full of the Amount Owing.
12.2 You may resell or use any Products in the ordinary course of your business
before ownership of the Products has passed to you. However, you will be
deemed to hold the proceeds of sale or use (in whatever form) on trust for
us to the extent of the Amount Owing.
12.3 If any Amount Owing is overdue or if an Insolvency Event occurs, you must
return Products to us on request or permit us to enter any premises where
Products may be stored to repossess those Products.
13. Late payments
13.1 If payment in full of any Amount Owing (which is not subject to a genuine
dispute) is not made to us on the due date, we may:
(a) suspend, or cancel (in accordance with clause 6.1(a)), the provision
of any or all Products and Services to you;
(b) cancel any rebates or discounts (whether or not previously credited);
and
(c) charge you interest at a rate of 2.5% per month on the balance of the
outstanding amount from the due date of payment until the date the
outstanding amount is paid, accruing daily and charged monthly.
14. Costs of recovering Amounts Owing
14.1 You must reimburse us for any reasonable costs and expenses we incur to
recover any Amount Owing, or exercise our rights to recover Products,
including any debt collection fees or commission and full legal expenses.
15. Security interests
15.1 You acknowledge that these Terms create, in our favour, a security interest
(as defined in the PPSA) in all Products and the proceeds of any Products
(in accordance with clause 12.1) (Security Interest), to secure the payment
by you to us of the Amount Owing.
15.2 You undertake to promptly sign any further documents which we may
reasonably require to enable us to perfect and maintain the perfection of the
Security Interest (including by registration of a financing statement) and to
provide not less than 14 days’ prior written notice of any proposed change
in your name and/or any other change in details (including changes in
address, trading name or business practice).
15.3 The parties agree to contract out of sections 114(1)(a), 133 and 134 of the
PPSA. You agree to waive your rights under the PPSA to the extent
permitted by section 107(2) of the PPSA and to receive a verification
statement relating to the Security Interest. Where we have rights in addition
to Part 9 of the PPSA, those rights will continue to apply.
15.4 We reserve the right to require a guarantee, or any other additional security
(at your cost), as security for payment, before we provide Products or
Services to you.
PART E: COMPLIANCE AND INFORMATION
16. Health and safety
16.1 Each party will comply with the Health and Safety at Work Act 2015 (HSW
Act), including all applicable regulations under the HSW Act, as well as all
applicable standards and codes of practice relating to health and safety. In
addition, each party will comply with the other party’s pre-notified and
reasonable health and safety policies when on the party’s premises.
16.2 You must notify us of any known hazards arising from your premises to
which any of our Representatives may be exposed while on the premises
and ensure that your workplace is without risks to the health and safety of
any person.
16.3 Each party must consult, co-operate with and co-ordinate activities with all
other persons who have a health and safety duty in relation to the same
matter in providing the Products and/or Services (including in connection
with the delivery of the Products and/or Services).
17. Privacy
17.1 We may collect, use and share Personal Information:
(a) for the purposes of the performance of our obligations or exercise of
our rights under these Terms; and
(b) in accordance with the Privacy Act 2020.
17.2 We may share Personal Information with our Related Companies.
17.3 We may use the services of credit reporters and debt collection agencies to
manage credit and recover amounts owing. We may provide your Personal
Information to those agencies in order to use their services. Information
disclosed to credit reporters (including default information) will be held by
them and used to provide credit reporting services.
17.4 The credit reporters we may use are Centrix, Equifax, and Experian. Details
of how the credit reporters handle your Personal Information can be found
in their privacy policies:
(a) Equifax: https://www.equifax.co.nz/privacy
(b) Centrix: https://www.centrix.co.nz/privacy-statement
(c) Experian: https://www.experian.co.nz/privacy-policy
17.5 The debt collection agency we use is EC Credit Control (NZ) Limited.
Details of how they handle your Personal Information can be found in their
privacy policy: https://www.eccreditcontrol.co.nz/privacy/
17.6 By accepting these Terms, you understand that:
(a) we may use the credit reporters credit report services to credit check
you;
(b) in doing so we may provide your Personal Information to the credit
reporter, and they will store this information on their systems and use
it to provide reporting services to us and their customers;
(c) the credit reporters may provide us with Personal Information they
hold about you for the purposes of a credit reference;
(d) if you default on any payment obligations, information about the
default may be given to the credit reporters, and they may share this
information with their customers;
(e) we may use the credit reporting services for purposes relating to the
provision of credit to you. This may include using the credit reporters
monitoring services to receive updates if any of the information held
about your changes; and
(f) you have rights of access to, and correction of your credit information
and any other Personal Information held by the credit reporters as
set out in their privacy policy.
17.7 If you provide us with any information about a third party (including a
Representative), or authorise us to collect that information, you confirm that
you are authorised by the individual concerned to provide their Personal
Information to us or authorise the collection of information about them in
accordance with this clause 17. You also confirm that you have informed
the individual of their rights to access and request correction of Personal
Information.
17.8 You (if you are an individual) and your Representatives have the right to
access, and request correction of, any of your Personal Information held by
us.
18. Confidentiality
18.1 Each party must keep confidential all Confidential Information.
18.2 Nothing in clause 18.1 prevents a party from disclosing Confidential
Information if disclosure is:
(a) required by law or a Regulator (but only to the extent required or, if
applicable, requested by a Regulator);
(b) is reasonably required to enable a party to perform its obligations or
exercise its rights under these Terms; or
(c) to a Related Company or Representatives on a ‘need to know’ basis,
provided that person is under a duty to keep the Confidential
Information confidential in accordance with these Terms.
18.3 We may refer to you as a customer (including by using your logo) and
publish any testimonials or references that you provide to us, on our website
and associated marketing materials. We will ensure that any such
references or testimonials accurately represent your experience with our
Products and Services. Please contact us if you do not approve us referring
to you in accordance with this clause or have any comments on published
content.
19. Insights and Intellectual property
19.1 We may also use any information that we collect in connection with the
Products and Services to improve our Products and Services, for statistical
and research purposes, and for general information purposes including to
provide industry and market insights (together, Insights), provided that:
(a) we must ensure that our obligations of confidentiality and privacy are
paramount – for example, we will ensure that any information that
we disclose or publish in accordance with this clause 19.1 is in a fully
aggregated and de-identified form (so that it does not identify you or
any individuals); and
Part E sets out the provisions relating to health and safety, privacy,
confidentiality and intellectual property rights. Unless we agree otherwise, we
own all intellectual property rights in the Products and Services.
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(b) we will not use information that we collect in connection with the
provision of Products and Services to you, in accordance with this
clause 19.1, if you have informed us that you do not authorise us to
do so.
19.2 To the extent required by law, you grant us a non-exclusive, perpetual,
irrevocable, royalty-free licence to use and sub-licence information we
collect in connection with the provision of Products and Services to you, in
accordance with clause 19.1. However, for clarity, we own the intellectual
property rights in all Insights.
19.3 We (or our licensors) own all rights, title and interest in the intellectual
property rights in the Products and Services at all times.
19.4 Any new intellectual property which is created by us or on our behalf,
including as a result of, or in connection with, the provision of our Products
and Services, will be owned by us, unless otherwise agreed in writing.
19.5 You assign all intellectual property rights to us with effect from creation, to
the extent required to give effect to clause 19.3 and 19.4, and agree to do
all things reasonably required by us to give effect to such assignment.
19.6 You warrant that the use by us of any designs, instructions or specifications
supplied to us by you will not infringe the intellectual property rights of any
other person and indemnify us against any losses, damages, liabilities or
costs (including full legal costs) that we may suffer or incur in the event of
any such infringement.
PART F: DISPUTE RESOLUTION AND LIABILITY
20. Dispute Resolution
20.1 If a dispute arises out of or in connection with these Terms, either party may
give a notice to the other setting out the details of the dispute (Dispute
Notice).
20.2 Following receipt of a Dispute Notice:
(a) a Representative of each of us (with authority to settle the dispute)
will meet, within 10 Business Days, to try to resolve the dispute;
(b) if the dispute is not resolved within 10 Business Days of our
Representatives meeting (or if the meeting does not take place, for
any reason, within 10 Business Days of the date of a Dispute Notice),
the dispute will be referred to the senior manager of each party (if
applicable), who will try to resolve the dispute within a further 10
Business Days; and
(c) if the dispute is not resolved by our respective Representatives in
accordance with clause 20.2(b), then either party may commence
court proceedings.
20.3 This clause 20 does not restrict either party from applying to a court for
interim measures or any other form of urgent relief at any time. However,
neither party may commence any other form of court proceeding without
first following the procedure set out in this clause 20.
20.4 Each party must continue to perform its obligations in these Terms, despite
the existence of a dispute, subject to the termination rights set out in these
Terms.
21. Consumer Guarantees Act
21.1 If you are acquiring, or hold yourself out as acquiring, any Products or
Services in trade, to the extent permitted by law, you agree that the parties
are contracting out of the CGA (to the extent that the CGA would otherwise
apply) and that the CGA does not apply to any matters covered by these
Terms.
21.2 If you are acquiring any Products for the purpose of resupply in trade, you
undertake that you will:
(a) contract out of the CGA to the maximum extent permitted by law in
your contracts with your own customers; and
(b) procure that your customers, and each other person in the
distribution chain thereafter, contract out of the CGA to the maximum
extent permitted by law in their contracts with customers.
You will indemnify us against any liability or cost incurred by us as a result
of your breach of this clause 21.2.
22. Warranties
22.1 We warrant that, at the time of delivery, the Products will substantially
conform to their description and be free from material defects in
workmanship. However, this warranty will not cover any defect or damage
to the extent that it is caused by:
(a) any fault or defect in our Products or Services resulting from any of
your (or your Representatives) acts or omissions (outside of the
ordinary use of the Products or Services); or
(b) minor deviations in specification, measurements, colour, weight, size
or strength of the Products.
22.2 Trading cards and collectible products are sold for their collectible value.
We do not warrant the future value, rarity, investment performance, grading
outcome, market demand, or appreciation of any Products.
22.3 Minor manufacturing variations, including centring, print quality, colour
variation, packaging imperfections, or other characteristics commonly
associated with trading card products, shall not constitute a defect unless
the Products are not of an acceptable quality under applicable law.
22.4 We do not guarantee that any card will achieve a particular grading score
from any grading service. Any grade, assessment, or opinion provided by a
third-party grading company is independent of us and is not therefore
warranted by us.
22.5 You acknowledge that, except for the warranty set out in clause 22.1 and
any written materials that we provide to you:
(a) we do not provide any other express warranties relating to the
Products and Services; and
(b) we expressly exclude any other Product and and/or Service
warranties, including any warranties relating to the suitability for
resale, quality or fitness for any particular purpose, of our Products
or Services. However, this clause 22.2 is subject to any rights that
you may have under the CGA (in accordance with clause 21).
23. Third party suppliers
23.1 If you request and authorise us to arrange the provision of Products or
Services directly to you by a third party supplier (whether or not such
arrangement involves us contracting as your agent), to the extent
applicable, these Terms will apply to our Services in arranging such supply,
provided that to the extent permitted by law we exclude all liability in
connection with the supply of Products and Services to you directly by a
third party supplier. You agree to pay any commission or other payments
due to us in accordance with these Terms.
24. Limitation of liability
24.1 To the extent permitted by law, subject to clause 24.3, our total liability
under or in connection with these Terms and the Products and Services is
limited to, at our option:
(a) in the case of Products, any one or more of the following:
(i) the replacement of the Products or the supply of equivalent
products;
(ii) the repair of the Products;
(iii) the payment of the cost of replacing the Products or of
acquiring equivalent products; or
(iv) the payment of the cost of having the Products repaired; or
(b) in the case of Services:
(i) supplying the Services again; or
(ii) the payment of the cost of having the Services supplied again.
24.2 Subject to clause 24.3, if we have any liability under or in connection with
these Terms, to the maximum extent permitted by law:
(a) our total aggregate liability to you for any loss, damage or liability
arising out of or in connection with these Terms will be limited to the
Price paid by you to us for the applicable Products and/or Services;
and
(b) we will not be liable for any:
(i) indirect, special or consequential loss or damage whatsoever;
or
(ii) loss of profits, revenue, data, goodwill, customers or
opportunity or loss of or damage to reputation.
24.3 Nothing in these Terms (including clauses 24.1 and 24.2) will limit or
exclude our liability for:
(a) any fraudulent act or omission;
(b) a breach of clause 18 (Confidentiality);
(c) our wilful breach of these Terms;
(d) our gross negligence; and/or
(e) any matter to the extent that liability cannot be excluded or limited by
law.
24.4 The limitations and exclusions on liability in this clause 24 will apply
irrespective of whether the legal basis for the applicable claim contract,
equity or tort (including negligence). However, this clause 24 does not limit
or exclude any rights that you may have under statute.
24.5 In no circumstances will we have any liability whatsoever under or in
connection with these Terms:
(a) for the acts or omissions of your Representatives or any third party;
(b) for any acts or omissions of performance in accordance with your
instructions (or instructions from your Representatives); or
(c) to any third party.
PART G: GENERAL
25. General
25.1 Governing Law: These Terms are governed by and to be construed in
accordance with the laws of New Zealand and each party submits to the
exclusive jurisdiction of the courts of Christchurch, New Zealand.
25.2 Previous Agreements: These Terms supersede and replace any previous
written agreements between the parties relating to the Products and
Services.
25.3 Sub-contracting: We may subcontract the performance of our obligations
(including to a Related Company), on the basis we remain solely liable to
you for the performance of our obligations.
25.4 Assignment: You must not assign, novate or transfer your rights or
obligations under these Terms without our prior written consent (which may
be withheld in our sole discretion). We may assign these Terms to any other
person on notice to you (provided that we will request your prior approval
(not to be unreasonably withheld or delayed) if the assignment could have
any material adverse effect on you). Without limiting the foregoing, we may
assign to any other person all or part of the Amount Owing by you to us.
25.5 Amendments: Any amendment to these Terms must be in writing signed
by each party, except where stated otherwise in these Terms or where we
are required to make changes to ensure compliance with applicable laws
(in which case we notify you of the changes in writing).
25.6 Force majeure: We will not be liable to you for any failure or delay in
performing our obligations under these Terms where such failure or delay
is caused by events or circumstances beyond our reasonable control,
including any strike, lockout, labour dispute, delay in transit, embargo,
epidemic, pandemic, accident, emergency, order of government or other
authority or act of God.
If a dispute arises under these Terms, we must follow the process in this part F
to resolve the matter. If a claim arises under these Terms, any amount
payable by you or us will be limited by the liability framework set out in this
Part F.
Part G describes miscellaneous provisions necessary for the proper operation
of these Terms.
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25.7 Waiver: A single or partial exercise or waiver of a right relating to these
Terms does not prevent any other exercise of that right or the exercise of
any other right.
25.8 Survival: Any provision of these Terms, which is by its nature a continuing
obligation, will survive termination.
25.9 Rights of Third Parties: These Terms are not intended to confer a benefit
on any person other than the parties to these Terms.
25.10 Relationship: We will provide Products and Services to you as an
independent supplier. Nothing in these Terms creates a relationship of
employment, trust, agency, joint venture, partnership or any other fiduciary
relationship between the parties.
25.11 Non-exclusive: These Terms are not exclusive and do not impose any
restriction on us providing Products and Services to, or you purchasing any
product or services from, any other person.
25.12 Counterparts: These Terms may be executed in any number of
counterparts (including by electronic signature or by email exchange of .pdf
copies) which together will constitute the one instrument.
PART H: DICTIONARY
26. Definitions
Amount Owing means any amount owed by you to us, from time to time,
including the Price, any applicable amounts referred to in clause 8.3, any
interest payable by you, your liability under these Terms and any
enforcement costs incurred by us in seeking payment of any Amounts
Owing by you.
Business Day means Monday to Friday, excluding public holidays in New
Zealand.
Confidential Information means all information that could be reasonably
regarded in the circumstances as confidential, including information which
relates to the business, interests or affairs of a party, the terms of use, the
Products and Services (as applicable), and intellectual property rights, but
excludes information which is:
(a) in the public domain, other than as a result of a breach of these
Terms;
(b) in the possession of a party prior to the commencement of these
Terms without any obligation of confidentiality; and
(c) is independently developed or acquired by a party prior to the
commencement of these Terms without relying on information which
would itself be Confidential Information.
Consumer has the meaning given to that term in the Consumer Guarantees
Act 1993.
Delivery Date means the date for delivery of the Products and/or Services,
as specified in the Order.
Insolvency Event means, in relation to you, any of the following steps has
occurred (or we have reasonable grounds to believe that any of these steps
is likely to occur):
(a) the primary, or all, of your business activities is suspended or ceases
(b) the presentation of an application for your liquidation;
(c) the making of any compromise, proposal or deed of arrangement
with all or some of your creditors;
(d) the appointment of a liquidator, receiver, statutory manager, or
similar official;
(e) your suspension or threatened suspension of the payment of your
debts as they fall due;
(f) the enforcement of any security against the whole or a substantial
part of your assets;
(g) if you are an individual, anything having a similar effect to any of the
events specified above happens in relation to you; or
(h) any other insolvency event or proceedings analogous to any of the
foregoing occurs in any relevant jurisdiction,
in each case, unless it takes place as part of a solvent reconstruction,
amalgamation, merger or consolidation.
Order means an order for Products or Services that you submit to us and
we approve, in accordance with clause 2.
Personal Information has the meaning given to that term in the Privacy
Act 2020.
PPSA means the Personal Property Securities Act 1999.
Price means the Price payable, in accordance with clause 8.1.
Products means any Products (and associated services) supplied by us to
you at any time, including the Products specified in an Order.
Regulator means any authority, commission, government department,
court, tribunal, or similar having regulatory or supervisory authority over the
parties or any of the Products and/or Services.
Related Company has the meaning given to it in the Companies Act 1993,
read as if a reference to company was a reference to any body corporate of
any jurisdiction.
Representatives means directors, officers, employees, agents and
contractors of the relevant party.
Services means any services supplied by us to you at any time, including
the Services specified in an Order.
Specific Terms means the terms (if any) that are included in Part I to these
Terms.
Terms means these Terms of Trade (including any Specific Terms outlined
in Part I), as may be amended from time to time, each Order and any
additional terms expressly agreed in accordance with clause 1.2 (if
applicable).
We or us means the supplier of Products and Services, Rose Willis T/A
Magic At Willis.
Website means a location, owned/leased by us, which is accessible on the
Internet through the World Wide Web and which displays the Products
available for purchase (and where the context so permits shall include the
provision of “Services”, as defined).
You or your means the customer purchasing Products and Services from
us.
27. Interpretation
In these Terms, unless the context otherwise requires:
(a) headings are for convenience only and do not affect interpretation;
(b) a reference to legislation includes all regulations, orders,
instruments, codes, guidelines or determinations issued under that
legislation or and any modification, consolidation, amendment, reenactment,
replacement or codification of it;
(c) a reference to “in writing” includes by email and a reference to
“agree” or “agreement” or “notice” or “approval” means an
agreement, notice or approval (as applicable) in writing;
(d) the words “include” or “including”, or similar expressions, are to be
construed without limitation;
(e) a reference to a party to includes that party’s successors and
permitted assigns and substitutes; and
(f) a word importing the singular includes the plural and vice versa.
PART I: SPECIFIC TERMS
28. General risk
28.1 Any advice, recommendation, or information that we provide you in relation
to the Products or Services supplied is based on our knowledge, experience
and any relevant information provided by you at that time. We shall not be
liable in any way whatsoever for any damages or losses that you suffer, or
which occur where you elect not to adhere to the advice, recommendations
or information we provide you.
28.2 All Products supplied by us shall be in accordance with the specifications or
descriptions (if any) expressly listed or set out on the Website or Order. No
other specification, descriptive material, written or oral representation,
correspondence or statement, promotional or sales literature shall form part
of or be incorporated by reference into the Order.
29. Jurisdiction
29.1 The Website (excluding any linked third party sites) is controlled by us from
our principal business premises in New Zealand. It can be accessed from
countries around the world to the extent permitted by the Website. As each
country has laws that may differ from New Zealand, by accessing this
Website, you agree that the laws and statutes of New Zealand shall apply
to any dealings, actions or claims arising out of, or in relation to, this Order,
or your use of the Website, irrespective of any conflict with any laws and
statutes applicable to your country of domicile.
29.2 You further acknowledge and agree that, in accordance with clause 25.1,
the filing of a claim against us (if any) must be made in the city of
Christchurch, New Zealand in which our principal business premises in New
Zealand is domiciled, and that any legal proceedings will be conducted in
English.
30. Your acknowledgements
30.1 You acknowledge and accept that:
(a) where we are to supply Products which we have received already
“Sealed” and ready for re-delivery, the content and condition of
Products will be unknown; therefore, we accept no liability for loss or
damage in this instance;
(b) this contract forms a legally binding contract under applicable law,
and as such, you warrant that you are at least 18 years of age at the
time of entering in this contract, and that you are of full legal capacity.
In the event that you are under this age, we shall require the details
(and acceptance of this contract) of at least one parent and/or
guardian, who will take full responsibility for you and guarantee your
obligations hereunder are met and that you have provided us with
complete, accurate and current personal information; and
(c) we will never ask you to confirm any account or credit card details
via email. If an email is received claiming to be from us asking for
such information, you should not reply in the first instance but
forward this email request to us so that we may advise the relevant
authorities.
30.2 To ensure that returns are processed fairly, any card returned for refund,
replacement or credit must be the same card that was originally supplied.
We may use photographs, certification details and other identifying features
recorded at the time of sale to verify returned items. If a returned card
cannot reasonably be matched to the card originally supplied, or has
materially changed in condition after delivery, we may decline the return
request and discuss the matter with you.
31. Online ordering
31.1 We do not guarantee the website’s performance as the website may be
unavailable from time to time for regularly scheduled maintenance and/or
upgrades.
31.2 There are inherent hazards in electronic distribution, and as such we cannot
warrant against delays or errors in transmitting data between you and us,
and you agree that to the maximum extent permitted by law, we will not be
liable for any losses which you suffer as a result of the website not being
available.
Part H sets out a Dictionary, to define the capitalised terms used in these
Terms.
Part I details any specific terms that apply to your order of the Products and
Services.