TERMS OF BUSINESS
GOBANANAS DOWNUNDER LTD (“the Agent”)
1. DEFINITIONS & INTERPRETATION
1.1 In these terms of business, unless the context otherwise requires:-
Business Day means a day on which the main clearing banks are open for business in Auckland other than a Saturday or a Sunday;
Buyer means the means the person, organisation or body to whom/which the Proposal is addressed or such other party as the Agent agrees in writing may be substituted therefore ;
Cancellation Charges means the cancellation charges set out in clause 6;
Contract means the contract between the Agent and the Buyer in respect of the provision of Services;
Contractual Terms means:-
(a) the terms set out in the Proposal;
(b) any other terms which the Agent and the Buyer expressly agree, in writing, to incorporate; and
(c) save to the extent that they are inconsistent with the terms referred to in (a) and/or (b) above, the terms set out herein;
Deposit means the deposit set out in the Proposal;
Parties means the Buyer and the Agent and Party means either one of them;
Price means the charges for the the Services and the Third Party Services as set out in the Proposal (including any amendment thereof), exclusive of the items referred to in condition 7.2;
Proposal means [the written proposal/quotation issued by the Agent which accompanies these terms of business][the proposed itinerary[ sent to the Buyer by email][set out on the Agent’s website customised for the Buyer];
Relevant Obligations means the obligation to provide the Services and the obligations ancillary thereto;
Services means the agency services referred to in the Proposal and final confirmation letter issued on payment of the Deposit which are to be provided to the Buyer by the Agent;
Third Party means the third party from whom the Agent will source the Third Party Services for the Buyer;
Third Party Services means the services to be provided by the Third Party to the Buyer referred to in the Proposal;
GST means value added tax or, if applicable, its equivalent in another jurisdiction.
1.2 The headings in these terms of business are for convenience only and shall not affect the interpretation or construction of these terms of business.
1.3 The singular includes the plural and vice versa and any reference to one gender includes a reference to all genders.
1.4 Save where expressly stated otherwise, words and expressions defined in the Companies Acts 1985 to 2006 shall bear the same meanings in the Contract.
1.5 Reference to any statute or statutory provision shall include a reference to any statute or statutory provision which amends, extends, consolidates or replaces the same (save to the extent that any amendment, extension, consolidation or replacement would impose more onerous obligations than otherwise exist at the date on which the Contract is entered into) or which has been amended, extended, consolidated or replaced by the same and shall include any orders, regulations, instruments or other subordinate legislation made under the relevant statute or statutory provision.
2. APPLICATION OF TERMS
2.1 The Contract shall be solely on the Contractual Terms to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply (whether under any purchase order, confirmation of order, specification or otherwise)) and no variation to the Contractual Terms shall have effect unless expressly agreed in writing by the Agent.
2.2 The Buyer acknowledges that it has not relied on any statement, promise and/or representation made or given by or on behalf of the Agent which is not set out in the Contract. Nothing in this condition shall exclude or limit the Agent's liability for fraudulent misrepresentation.
2.3 By its acceptance (whether deemed or actual) of, inter alia, the Proposal and these terms of business (“Acceptance”), the Buyer:-
2.3.1 warrants to the Agent that all (if any) information supplied by it to the Agent was, when given, and, at the time of Acceptance, remains true, accurate and complete in all material respects: and
2.3.2 acknowledges and agrees that in the event of a breach of the warranty set out in condition 2.3.1, the Price shall be adjusted by such amount as the Agent (acting reasonably) determines is appropriate to reflect all (if any) additional work/materials which the Agent (in its absolute discretion) determines is necessary and/or desirable for its proper performance under the Contract (provided always that this condition 2.3.2 shall be without prejudice to all other rights and remedies available to the Agent at law in connection with any such breach of warranty).
2.4 A certificate (in such form as the Agent shall in its sole discretion determine) signed on behalf of the Agent specifying the total sums due to the Agent by the Buyer (including, without prejudice to the foregoing generality, sums in respect of fees, expenses and/or interest) shall, in the absence of manifest error, be conclusive in determining the extent of the Buyer’s liability to the Agent.
3. AGENCY AND DESCRIPTION
3.1 The Buyer appoints the Agent as its exclusive agent in the purchase of the Third Party Services for it and on its behalf from the Third Party. The Buyer acknowledges and agrees that the Agent will act as its disclosed Agent in connection with the purchase of the Third Party Services and that responsibility for payment for those Third Party Services rests with the Buyer and not with the Agent.
3.2 The quantity and description of Services and Third Party Services shall be as set out in the Proposal.
3.3 All drawings, descriptive matter, specifications and advertising issued by the Agent and any descriptions and/or illustrations contained on the Agent’s website or in the Agent's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the services described in them and they shall not form part of the Contract. All rack and/or retail prices published or disclosed on the Agent’s website or in the Agent’s catalogues or brochures or other advertising materials have been provided by third parties and are so published or disclosed in good faith by the Agent. The Agent shall have no liability to the Buyer in the event that such rack and/or retail prices are incorrect.
4.1 Unless otherwise agreed in writing by the Agent, delivery of all Services and Third Party Services shall take place at the address identified in the Proposal.
4.2 Subject to the other provisions of these terms of business, the Agent shall not be liable for any direct, indirect or consequential loss (all of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges and/or expenses caused, directly or indirectly, by any delay in the delivery of Services (even if caused by the Agent's negligence) or the Third Party Services, nor shall any delay of less than 80 Business Days continuous duration entitle the Buyer to terminate or rescind the Contract.
4.3 If, for any reason, the Buyer fails to accept delivery of any Services when they are ready for delivery or the Third Party is unable to deliver the Third Party Services on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations the Services or Third Party Services (as appropriate) in question shall be deemed to have been delivered.
Any liability of the Agent for non-delivery of Services shall be limited to replacing the Services in question within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Services. The Agent shall have no liability to the Buyer for non-delivery of the Third Party Services. The Buyer acknowledges and agrees that responsibility therefor will rest with the Third Party.
6. BOOKINGS AND CANCELLATION
6.1 A booking is valid after the Deposit has been paid and a Proposal has been issued by the Agent to the Buyer. If the Buyer seeks to amend any Proposal, the Agent will establish whether this is possible and advise the Buyer in writing of any additional Price payable. On payment of any such additional Price, the Proposal will be amended.
6.2 The Buyer shall be responsible for payment of the Price regardless of whether delivery of the Services or the Third Party Services is made to parties other than the Buyer. On receipt of the Price from the Buyer, the Agent will make payment to the Third Party of any sums due to it for the provision of the Third Party Services on the Buyer’s behalf.
6.3 The Deposit is non-refundable and once full payment has been received that is non-refundable as well.
6.4 If a booking is a gift for a third party, the Agent will provide a voucher to the Buyer for the appropriate Services upon receipt of the full Price. That voucher will be valid for a period of 12 months from receipt by the Agent of the Price and the voucher will be capable of redemption during that period subject to any Cancellation Charges.
6.5 If the Buyer wishes to cancel any booking (in whole or in part) the Buyer should advise the Agent immediately in writing. In the event of cancellation, the Agent shall be entitled to retain all sums paid. If cancellation is made less than 30 days prior to the date on which the Services were to be provided, the full Price will immediately fall due and payable.
7.1 The Proposal sets out how the Agent will calculate its charges for the Services. In the absence of the Agent’s written agreement to the contrary after the date of the Proposal, charges for any other services (whether required as a consequence of input from the Buyer or otherwise howsoever) will be calculated using the applicable rates (if any) set out in the Proposal or, if no such rates are set out therein, the Agent’s rates generally prevailing for work/goods of the type in question from time to time.
7.2 The Price is stated inclusive of all applicable:-
7.2.3 other like government (central or local) tariffs and levies;
7.2.4 charges for packing, loading, unloading, shipping, carriage, delivery and insurance;
Which, in each case, the Buyer shall pay, in NZD dollars, in addition to (and contemporaneously with) the Price.
8.1 Subject to condition 8.4, payment of the Price (including the Deposit) is due in NZD seven days to four weeks prior to the date of delivery of the Services set out in the Proposal. You will be notified of payment date due to what has been booked.
8.2 Time for payment shall be of the essence.
8.3 No payment shall be deemed to have been received until the Agent has received cleared funds.
8.4 All payments payable to the Agent under the Contract shall become due immediately on termination of the Relevant Obligations notwithstanding any other provision.
8.5 The Buyer shall make all payments due under the Contract in full without any deduction whatsoever (whether by way of set-off, counterclaim, discount, abatement or otherwise).
8.6 If the Buyer fails to pay the Agent any sum due pursuant to the Contract, the Buyer shall be liable to pay interest to the Agent on such sum from the due date for payment at the annual rate of 8% above the base lending rate from time to time of the ANZ, accruing on a daily basis until payment of all principal and interest is made (in full), whether before or after any judgment. The Agent reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 and/or other like legislation prevailing from time to time.
8.7 If payment is not made by the due date, the Services will be cancelled immediately and the Agent shall be under no obligation to provide any Services to the Buyer.
9. QUALITY AND ABILITY
9.1 The Agent warrants that (subject to the other provisions of these terms of business) Services shall be delivered by it using reasonable skill and care.
9.2 The Agent shall not be liable for a breach of the warranty in condition 9.1 unless:-
9.2.1 the Buyer gives written notice of the defect to the Agent within 5 Business Days of the time when the Buyer discovers or ought to have discovered the defect; and
9.2.2 the Agent is given a reasonable opportunity after receiving such notice to investigate/examine the Services in question.
9.3 The Buyer shall be responsible for ensuring that it and all others for whom it contracts have the appropriate level of fitness to take part in any Third Party Services which are undertaken entirely at the Buyer’s and all other’s for whom it contracts own risk.
9.4 The Agent and its agents reserve the right to cancel or terminate any Services in the event that, in their reasonable opinion, the Buyer and/or any members of the Buyer’s party are unable to safely take part in the Services for any reason. Furthermore, the Buyer acknowledges and agrees that (1) the Third Party may cancel or terminate any Third Party Services in the event that it considers that the Buyer and/or any members of the Buyer’s party are unable to safely take part in the Third Party Services for any reason and (2) that the Agent has no control over the Third Party’s decision in connection therewith.
9.5 The Agent shall not be liable, in any way or to any extent, for a breach of the warranty in condition 9.1 if:-
9.5.1 the Buyer makes any further use of such Services after giving such notice; and/or
9.5.2 the defect arises because the Buyer failed to follow the Agent's and/or the Agent’s agents’ oral and/or written instructions in connection with such Services.
9.6 Subject to condition 9.4 and condition 9.5, if any of the Services do not conform with the warranty in condition 9.1, the Agent shall, in its own absolute and unencumbered discretion, choose to replace such Services (or the defective part) or refund the price of such Services at the pro rata Contract rate.
9.7 If the Agent complies with condition 9.6, it shall have no further liability for a breach of the warranty in condition 9.1 in respect of such Services.
10. LIMITATION OF LIABILITY
10.1 Subject to condition 4, condition 5 and condition 9, the following provisions of this condition 10 set out the entire financial liability of the Agent (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:-
10.1.1 Any breach of the Contractual Terms;
10.1.2 Any use made by the Buyer of any Services or of any product incorporating any Services; and
10.1.3 Any representation, statement or delictual act or omission (including negligence) arising under or in connection with the Contract.
10.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
10.3 Nothing in these terms of business excludes or limits the liability of the Agent:-
10.3.1 for death or personal injury caused by the Agent's negligence;
10.3.2 under section 2(3) of the Consumer Protection Act 1987;
10.3.3 for any matter which it would be illegal for the Agent to exclude or attempt to exclude its liability; or
10.3.4 for fraud or fraudulent misrepresentation.
10.4 Subject to condition 10.2 and condition 10.3:-
10.4.1 the Agent's aggregate liability in contract, delict (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to an amount equal to the Price.
10.4.2 the Agent shall not be liable to the Buyer for loss of profit, loss of business or depletion of goodwill (in each case, whether direct, indirect or consequential) or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract;
10.4.3 the Agent shall have no liability to a third party for losses, damages, costs, claims and/or expenses which arise in connection with (whether directly or indirectly) Services and the Buyer shall indemnify the Agent, on demand, in respect of the same; and
10.4.4 the Agent shall have no liability to the Buyer or any member of the Buyer’s party in connection with the actions (negligent or otherwise) of the Third Party. The Agent shall have no liability to the buyer for any death or personal injury caused by the Third Party negligence.
11.1 The Agent may assign the Contract or any part of it to any person, firm or company.
11.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Agent.
12. FORCE MAJEURE
12.1 The Agent reserves the right to defer the date of delivery or to terminate the Relevant Obligations or alter the Services ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Agent including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 80 Business Days, the Buyer shall be entitled to give notice in writing to the Agent to terminate the Relevant Obligations.
12.2 Following termination of the Relevant Obligations pursuant to condition 12.1, the Buyer shall pay the Agent such part of the Price as is due in respect of Services then supplied in accordance with the Contract.
13.1 Subject to condition 13.2, either Party shall be entitled to terminate all, but not part only, of the Relevant Obligations forthwith (and shall notify the other Party in writing accordingly) in the following circumstances:-
13.1.1 if the other Party is wound-up or dissolved;
13.1.2 if a resolution is passed for the winding-up or dissolution of the other Party (other than a resolution for the purpose of any reconstruction or amalgamation or a member's voluntary winding-up, in each case, in terms previously approved in writing by the other Party otherwise entitled to terminate under this condition 13.1.2, such approval not to be unreasonably withheld or delayed);
13.1.3 if a liquidator, trustee, receiver, administrator, administrative receiver or similar officer is appointed over the whole or any material part of the property, assets or undertaking of the other Party;
13.1.4 if the other Party commits a material breach of its obligations under this agreement and, where such breach is capable of remedy, it is not remedied by the Party in default within 15 Business Days of it being required in writing so to do by the other Party;
13.1.5 save for diligence on the dependence of an action, if any diligence, distress, execution, sequestration or other process is levied or enforced upon or sued out against the property of the other Party and is not discharged, in full, within 5 Business Days;
13.1.6 if the other Party suspends payment of its debts or is unable or is deemed to be unable to pay its debts (within the meaning of the Insolvency Act 1986 or any statutory modification or re-enactment thereof);
13.1.7 if a proposal is made or a nominee or supervisor is appointed for a composition in satisfaction of the debts of the other Party or for a scheme of arrangement of the affairs of the other Party or the other Party commences negotiations with one or more of its creditors with a view to the general readjustment or rescheduling of all or part of its debts or enters into any composition or other arrangement for the benefit of its creditors generally or any class of creditors or proceedings are commenced in relation to the other Party under any law, regulation or procedure relating to the reconstruction or readjustment of debt;
13.1.8 if the other Party transfers all or a material part of its business and/or assets to a third party otherwise than in the ordinary course of its business;
13.1.9 if the other Party ceases to carry on its business or substantially the whole of its business; and/or
13.1.10 if any of the matters referred to in paragraphs 13.1.1 to 13.1.9 above (inclusive) occurs in relation to a holding company of the other Party.
13.2 The cessation of the Relevant Obligations shall be without prejudice to:-
13.2.1 the remaining provisions of the Contract which shall continue in full force and effect;
13.2.2 Without prejudice to condition 13.2.1, the due performance by each Party of all obligations incumbent on it up to the date of cessation; and
13.2.3 the remedies available to the other Party in respect of any breach of such obligations.
14. ENTIRE AGREEMENT
14.1 To the fullest extent permitted by law, the Contractual Terms represent an exhaustive statement of the terms of the Contract and no other term shall be deemed to be incorporated therein.
14.2 The Contract constitutes the whole and only agreement between the Parties relating to the provision of the Services forming the subject matter thereof and supersedes and extinguishes all (if any) prior drafts, agreements, understandings, undertakings, representations, warranties and/or arrangements of any nature whatsoever (whether or not in writing) between the Parties in connection therewith.
14.3 The Buyer agrees that:-
14.3.1 it has not been induced to enter into the Contract in reliance upon (nor has it been given) any warranty, representation, statement, agreement or undertaking of any nature whatsoever other than as form part of the Contractual Terms; and
14.3.2 to the extent that it has been so induced, it unconditionally and irrevocably waives all claims, rights and remedies which it might otherwise have had in relation thereto.
15.1 No waiver by either Party of any of the requirements of the Contract or of any of its rights thereunder shall be effective unless given in writing and signed by or on behalf of that Party and no forbearance, delay or indulgence by either Party in enforcing the provisions of the Contract shall prejudice or restrict the rights of that Party nor shall any waiver by either Party of any of the requirements the Contract or any of its rights thereunder release the other from full performance of its obligations stated therein.
15.2 Each provision of the Contract shall be construed separately and (save as otherwise expressly provided therein) none of the provisions thereof shall limit or govern the extent, application or construction of any other of them and, notwithstanding that any provision of the Contract may prove to be invalid or unenforceable, the remaining provisions of the Contract shall continue in full force and effect.
15.3 By Acceptance, the Buyer agrees to the registration of these terms of business, the Proposal and/or each (if any) certificate issued by the Agent pursuant to condition 2.4 above, for preservation and execution.
15.4 No variation of the terms of the Contract shall be effective unless made in writing and signed by each of the Parties.
15.5 All intellectual property (of whatever nature) created by the Agent in connection with the Contract shall belong solely to the Agent.
15.6 The Parties do not intend any provision of the Contract to be enforceable by any person who is not a Party, whether pursuant to the Contracts (Rights of Third Parties) Act 1999, by operation of ius quaesitum tertio or otherwise.
15.7 Any notice required to be given by either Party to the other shall be deemed validly served if served by:-
15.7.1 First class post addressed to the other Party at its registered office or principal place of business in the NZ;
15.7.2 Personal delivery by hand to such address; or
15.7.3 email to an email address used by a representative of the other Party at any time in the 130 Business Days prior to the date of the Proposal or such other email address as may, from time to time, be notified in writing by the other Party for this purpose;
and any notice so served shall be deemed to have been served:-
(a) in the case of 15.7.1 above, 2 Business Days after posting the same;
(b) in the case of 15.7.2 above, upon delivery; and
(c) in the case of 15.7.3 above, upon transmission if it is sent if sent before 3pm on a Business Day or 10am on the following Business Day in any other case (provided always that no error message indicating a failure to deliver has been received by the sender).
In proving service, it shall be sufficient to prove that the notice was properly addressed and posted or that delivery or transmission took place (as the case may be).
16. GOVERNING LAW
The Contract shall be governed by the law of New Zealand and the Parties submit to the exclusive jurisdiction of the New Zealand courts.