Terms of service

1            INTERPRETATION

“Creative Wellness” means Creative Wellness NZ Limited, company number 2528408, and includes any subsidiaries, agents or employees thereof and using the trading name of Mutual® or Mutual Skincare.

 

“Business Day” means any day, other than a Saturday, Sunday or public holiday in Auckland, on which banks are generally open for business in Auckland.

 

“Consumer Law” means the Consumer Guarantees Act 1993 as amended from time to time.

 

“Companies Act” means the Companies Act 1993 as amended from time to time.

 

“Customer” means any person purchasing Goods or Services from Creative Wellness, and any other person acting on behalf of, or with the authority of, that person or entity.

 

“Goods” means goods, products or inventory supplied by, or on behalf of, Creative Wellness to a Customer from time to time.

 

“GST” has the meaning given in the Goods and Services Tax Act 1985 as amended from time to time.

 

“Guarantor” means a person or entity nominated by the Customer who agrees to guarantee the Customer’s credit account with Creative Wellness.

 

“Insolvency Event”

 

(i)          an “act of bankruptcy” under the Insolvency Act 2006;

 

(ii)         the appointment of a receiver, receiver and manager, administrator or liquidator

 

(iii)        a resolution is passed to wind up or dissolve a Customer or it is deregistered;

 

(iv)        a person enters into possession of all or any part of the assets of a Customer;

 

(v)         a Customer is or states that it is unable to pay its debts when they fall due or enter into a compromise with creditors; or

 

(vi)        anything analogous or having a substantially similar effect to any of the events specified above.

 

“Intellectual Property Rights” includes all rights in relation to present and future copyright, confidential information, patents, inventions, registered and unregistered trade marks, registered or unregistered designs, ideas, concepts, know-how or techniques, software and documentation developed or utilised by Creative Wellness in relation to the Goods or Services and includes any right to licence and sub-licence any of the above.

 

“Order” means an order placed by a Customer (including by phone, website or in writing) requesting Creative Wellness to supply Goods or Services.

 

“PPSA” means the Personal Property Securities Act 1999 as amended from time to time.

 

“Price” means the moneys payable by a Customer to Creative Wellness in relation to the supply of Goods or Services.

 

“PMSI” has the meaning given to it in the PPSA. “Security Interest” includes any security interest under the PPSA.

 

“Services” means services supplied by Creative Wellness to a Customer from time to time.

 

2            GENERAL

 

(a)         All Orders placed by a Customer are subject to these Terms and Conditions. No additional term or condition contained in any Order will be effective unless expressly pre-agreed in writing by Creative Wellness. In placing an Order a Customer is deemed to have accepted these Terms and Conditions.

 

(b)         An Order may be refused by Creative Wellness. An order will be deemed accepted by Creative Wellness on the earlier of delivery of the Order or the time Creative Wellness notifies a Customer that it has accepted the Order.

 

(c)         If Goods or Services are supplied and acquired by Customer in trade, the parties agree, to the maximum extent possible, that the Consumer Law does not apply.

 

3            PRICE

 

(a)         Creative Wellness may advise a Customer of the Price from time to time by providing a price list, quote or estimate for the Goods and Services. If an estimate is provided, or no Price is advised or agreed, the Price will be the current amount charged by Creative Wellness for the relevant Goods and Services.

 

(b)         Any Price quoted by Creative Wellness is based on the full quantities specified and does not necessarily operate pro-rata for any greater or lesser quantities.

 

(c)         The Price quoted, estimated or agreed may be increased by the amount of any reasonable increase in the cost of supply of the Goods and Services that is beyond the control of Creative Wellness between the date the Order is it accepted and the date of delivery of the Goods or Services.

 

(d)         Unless otherwise indicated, Prices are inclusive of GST.

 

(e)         A Customer acknowledges and agrees to pay Creative Wellness on demand all costs and losses incurred by Creative Wellness if a Customer, for any reason, does not accept the Order after the date the Order is accepted by Creative Wellness.

 

4            QUOTATION

 

(a)         Where a quotation is given by Creative Wellness for Goods and Services:

 

(i)          unless otherwise agreed or withdrawn by Creative Wellness, the quotation shall be valid for 20 Business Days from the date of issue;

 

(ii)         the quotation shall be inclusive of GST unless specifically stated to the contrary; and

 

(iii)        Creative Wellness reserves the right to alter the quotation because of circumstances beyond its control.

 

(b)         Where Goods and Services are required in addition to the quotation, the Customer agrees to pay for the additional cost of such Goods and Services.

 

5            TERMS OF PAYMENT

 

(a)         A Customer agrees to pay Creative Wellness:

 

(i)          the Price for all Goods and Services provided by Creative Wellness;

 

(ii)         any applicable GST or other charges, duties and taxes in respect of the Goods or Services that are invoiced by Creative Wellness; and

 

(iii)        any delivery costs.

 

(b)         For cash account Customers, all Orders must be paid in full at the time of up-lifting or prior to dispatch.

 

(c)         For approved credit account Customers, unless demanded earlier by Creative Wellness, all amounts are due and payable by the 20th day of the month following the date of invoice by way of direct credit to Creative Wellness’ nominated bank account from time to time (unless otherwise specified or agreed by Creative Wellness).

 

(d)         If payment is not received according with these Terms and Conditions, this will constitute a default and:

 

(i)          all moneys owed by a Customer to Creative Wellness will become immediately due and payable;

 

(ii)         default interest will accrue on the daily balances of overdue accounts from the day following the due date to the day of payment (both dates inclusive) at 2.5% per month, compounding; and

 

(iii)        Creative Wellness reserves the right to withhold any Orders from the Customer until all moneys owed by the Customer are paid to Creative Wellness.

 

(e)         In the event of a default by the Customer under these Terms and Conditions, the Customer agrees to indemnify Creative Wellness for all costs that Creative Wellness may incur in connection with the default, including:

 

(i)            any legal costs (on a solicitor/client basis);

 

(ii)         the costs of any collection agency that Creative Wellness may choose to engage (including their commission); and

 

(iii)        any other costs that Creative Wellness may become liable for as a result of the default.

 

(f)          A Customer may not set off, deduct or withhold payment of any amount due and owing to Creative Wellness, except where any portion of an invoice is in dispute and the Customer brings it to Creative Wellness’ attention no less than 5 Business Days before the due date of the invoice (supported by a letter of explanation setting out the particulars of the dispute), in which case the Customer shall be entitled to withhold the portion which is in dispute pending resolution of such dispute.

 

(g)         Creative Wellness may apply any payment received in any manner it sees fit.

 

(h)        Creative Wellness reserves the right to withdraw a Customer’s credit facilities at its sole discretion.

 

6            DELIVERY

 

(a)         Unless the Customer agrees to collect the Goods from Creative Wellness, Creative Wellness shall arrange delivery of the Goods by a carrier of its choosing to the address provided by the Customer at the time of the Order or as subsequently agreed by Creative Wellness in writing.

 

(b)         Risk in the Goods passes to the Customer when the Goods are collected or delivered (as the case may be). Delivery will be deemed complete when the Goods are given to the Customer or left at the Customer’s address by Creative Wellness’s designated courier.

 

(c)         Creative Wellness is not in any way responsible for any consequences arising in respect of any delay or non-delivery of an Order or any part of an Order.

 

7            RETENTION OF TITLE

 

(a)         Ownership in Goods supplied by Creative Wellness (which for the purposes of this clause 7 includes goods of the Customer incorporating Goods, and goods of the Customer in respect of which Creative Wellness has provided Services) remains with Creative Wellness until Creative Wellness receives the full Price. Pending such payment, the following conditions apply:

 

(i)          a Customer must designate and keep Creative Wellness’ Goods in such a way as to indicate that the Goods are the property of Creative Wellness and upon request must advise Creative Wellness of the location of the Goods;

 

(ii)         a Customer must keep the Goods insured against loss and damage;

 

(iii)        a Customer irrevocably authorises Creative Wellness to without liability to any person:

 

(A)         enter any of a Customer’s properties, without notice and inspect the Goods, and if the Customer is in default, repossess and dispose of the Goods;

 

(B)         resell the Goods at such price and upon such terms as it sees fit and the proceeds of such sale, after deduction of all expenses, shall be deducted from the amount due;

 

(iv)        if a Customer sells or disposes the Goods before a Customer has paid the Price, the Customer acknowledges and agrees that:

 

(A)         it holds the proceeds of the sale or disposal and any rights or claims against third parties arising out of such sale or disposal in a fiduciary capacity for and to the account of Creative Wellness until a Customer has paid all sums whatsoever due to Creative Wellness; and

 

(B)           a Customer must take all steps necessary to keep such proceeds separate from other monies, to pay over such proceeds to Creative Wellness and to transfer to Creative Wellness any such rights or claims to the extent necessary to discharge in full a Customer’s indebtedness to Creative Wellness; and

 

(v)         a Customer has no authority to enter into any contract or condition or give any warranty or representation in relation to the Goods which may render Creative Wellness liable to any third party for breach of such contract or condition or for inaccuracy of such warranty or representation which may render Creative Wellness chargeable to any tax or duty.

 

(b)         If after 5 Business Days from the date on which the Goods are ready for collection or despatch, delivery is delayed due to a Customer’s act, omission, breach or default, Creative Wellness may at its election:

 

(i)          store the Goods at its premises or elsewhere and the cost of storage, handling and insurance shall be payable by a Customer on Creative Wellness’ demand; or

 

(ii)         terminate the Order without liability to a Customer.

 

8            FORCE MAJEURE

 

(a)         Creative Wellness will not be liable for a delay or failure to supply an Order due to any cause beyond its control such as any act or neglect of any carrier, sub-contractor, manufacturer or supplier of Creative Wellness, acts of God, strikes, lock-outs, bans or other industrial disturbances, fire, flood, explosion, civil riot or commotion, government interference or request, by-laws, rules or regulations or order of any competent authority.

 

(b)         If the delay continues for a period of 10 Business Days or more either party may cancel the Order without liability to the other.

 

 

 

9            INTELLECTUAL PROPERTY

 

(a)         As between the parties, title to, and all proprietary rights in, all Intellectual Property Rights will be vested in and remain with Creative Wellness in its own right or as an agent for Medisca Canada (may be to define them in the Interpretation section).

 

(b)         All Intellectual Property Rights in respect of the Goods and Services and all modifications to, and derivative works based upon, such items and information, are and will remain the exclusive property of Creative Wellness and its licensors, subject only to the express terms of these Terms and Conditions.

 

10         DEFAULT

 

(a)         In the event of:

 

(i)          an Insolvency Event;

 

(ii)         a Customer failing to make any payment to Creative Wellness on the due date; or

 

(iii)        a Customer not complying with an obligation under these Terms and Conditions,

 

Creative Wellness may, without prejudice to any other remedy, have the right to:

 

(i)          cease to perform any of its obligations to a Customer;

 

(ii)         terminate the contract with a Customer without incurring any liability at law or in equity and without prejudice to Creative Wellness’ right to recover amounts owing to it by a Customer; and/or

 

(iii)        sell a Customer’s ordered Goods elsewhere and recover from a Customer any difference between the quoted price and the re-sale price.

 

(b)         Termination does not affect the accrued rights and obligations of the parties, including with respect to any payments due to Creative Wellness or any indemnities given by a Customer.

 

11         WARRANTY AND LIABILITY OF SUPPLIER

 

(a)         Other than as specified in these Terms and Conditions, to the extent permitted by law all warranties, conditions, liabilities or representations in relation to the quality or fitness of Goods or Services (other than any being or giving rise to non-excludable rights under any laws of New Zealand) are excluded.

 

(b)         Where any claim is made pursuant to any warranty:

 

(i)          the Customer must notify Creative Wellness of any alleged damage or defect or potential claim as soon as possible once it becomes aware of the same, but in any event, within 5 Business Days;

 

(ii)         the Customer must preserve the Goods and Services in the state they were at the time it became aware of such damage, defect or potential claim; and

 

(iii)        unless otherwise provided in this clause 11 or Consumer Law (if applicable), there is a no return policy on Goods and Services supplied under these Terms and Conditions.

 

(c)         The Goods and Services will be considered to have been supplied in good condition unless the Customer notifies Creative Wellness of any alleged damage or defect in accordance with clause 12 below.

 

12         RETURNS AND CREDIT

 

(a)        Goods: Creative Wellness cannot and will not accept the return of any Goods, unless Creative Wellness acknowledges:

 

(i)          there has been an error in supply of the Goods; or

 

(ii)         the Goods have been damaged in transit.

 

(b)         In circumstances where 12(a)(i) or 12(a)(ii) applies, Creative Wellness will:

 

(i)          pay for the cost of returning the Goods; and

 

(ii)         provide the Customer with a credit where the Goods have been immediately returned to Creative Wellness, or returned no later than 5 Business Days after the error or defect was detected.

 

(c)         A Customer agrees that to the extent permitted by law:

 

(i)          Creative Wellness’ liability to the Customer in respect of damaged or defective Goods and Services is limited to replacement, remedy or credit;

 

(ii)         Creative Wellness will not be liable for and a Customer releases Creative Wellness from all liability for any loss of profits, direct, indirect or consequential loss or damage which is or may be sustained by a Customer or any of its employees, officers, agents, contractors or other users of the Goods or Services arising out of or in connection with the supply of the Goods or Services; and

 

(iii)        Creative Wellness’ overall liability to a Customer or any of its officers, employees, agents, contractors or other users of the Goods or Services arising out of or in connection with the supply of Goods and Services is limited to the value of the Goods and Services supplied to the Customer.

 

13         PPSA

 

(a)         These Terms and Conditions constitute a security agreement for the purposes of the PPSA.

 

(b)         Definitions: unless the context requires otherwise, the terms used in these Terms and Conditions have the meanings given to them in, or by virtue of, the PPSA.

 

(c)         Consideration: in consideration of Creative Wellness agreeing to supply Goods or Services to a Customer, the Customer:

 

(i)          grants to Creative Wellness, at Creative Wellness’ discretion, a Security Interest and/or PMSI in the Goods (which for the purposes of this clause 13 includes goods of the Customer incorporating Goods and goods of the Customer in respect of which Creative Wellness has provided Services);

 

(ii)         agrees that any Goods supplied after the date of these Terms and Conditions and any proceeds of sale of such Goods will be subject to:

 

(A)         the Security Interest or PMSI granted in these Terms and Conditions; and

 

(B)         these Terms and Conditions;

 

(iii)        agrees that the Security Interest or PMSI has attached or will attach to all Goods supplied now or in the future to a Customer when a Customer takes possession of the Goods and that the attachment of the Security Interest or PMSI has not in any way been deferred or postponed; and

 

(iv)        agrees to treat Creative Wellness’ Security Interest or PMSI in the Goods as a continuing and subsisting security with priority over a registered general security and any unsecured creditors.

 

(d)         Customer must take all steps: Creative Wellness may, by notice to a Customer at any time, require a Customer to take all steps that a Customer considers necessary or desirable to:

 

(i)          ensure that any Security Interest or PMSI arising under it, is enforceable against a Customer or any third party; and

 

(ii)         protect, perfect, record, or better secure Creative Wellness’ position as a first ranking security.

 

(e)         Registration: The Customer acknowledges that Creative Wellness reserves the right to register a financing statement in respect of any Goods supplied by Creative Wellness to a Customer under these Terms and Conditions and that Creative Wellness can require a Customer to pay the cost and expense of registering a financing statement or a financing change statement.

 

(f)          Notices: The Customer waives the right to receive a copy of any notice, verification statement confirming registration of a financing statement or a financing change statement relating to the Security Interest or PMSI under these Terms and Conditions, unless the notice or statement is required by law and cannot be excluded.

 

(g)         Protection of Goods: The Customer agrees:

 

(i)          not to allow any person to register a financing statement over any of the Goods without Creative Wellness’ prior written consent;

 

(ii)         that the Customer will immediately notify Creative Wellness if a Customer becomes aware of any person taking steps to register a financing statement in relation to the Goods; and

 

(iii)        to perfect and maintain any Security Interest or PMSI that a Customer may have in the Goods under the PPSA.

 

(h)         Contracting out of enforcement provisions: The parties agree that sections 114(i)(a), 133 and 134 of the PPSA are excluded.  A Customer waives its rights under sections 121, 125, 129, 131 and 132 of the PPSA.

 

(i)          Insolvency: If the Customer becomes insolvent, without prejudice to any of Creative Wellness’ other rights:

 

(i)          the Customer’s right to dispose of the Goods in the ordinary course of business in accordance with the PPSA and any of a Customer’s other rights in respect of the Goods immediately cease; and

 

(ii)         the Customer must immediately return the Goods to Creative Wellness in which title has not passed as provided for under clause 7.

 

14         PRIVACY

 

In receiving the Goods and Services and placing an Order for the same, Creative Wellness may collect the Customer’s personal information. Creative Wellness’ privacy policy sets out more information on how it collects and uses the Customer’s Personal Information. A copy of Creative Wellness’ Privacy Policy is available on its website and is deemed to be incorporated into these Terms and Conditions, in the then current form from time to time.

15         Intellectual Property

(a)         MUTUAL® is a trademark of Medisca Pharmaceutique Inc. used under license by Creative Wellness NZ Limited.

 

16         MISCELLANEOUS

 

(a)         These Terms and Conditions shall be governed and construed in accordance with the laws of New Zealand.

 

(b)         Any statement, invoice, notice or other document including any court process (“Notice”) may be given or delivered to or served upon a Customer by Creative Wellness by dispatch by prepaid post addressed to a Customer at the last address of a Customer known to Creative Wellness. A Customer shall be deemed to have received any Notice 3 Business Days after posting.

 

(c)         The Customer shall not assign any rights or obligations under these Terms and Conditions without the prior written consent of Creative Wellness.

 

(d)         The Customer acknowledges, where applicable, that it has all necessary licences to buy and sell the Goods.

 

(e)         Creative Wellness may assign its rights (including the right to payment) to a third party without the consent of a Customer.

 

(f)          The singular shall include the plural and vice versa, words importing any gender shall include every other gender and where there is more than one Customer, the Customers shall be bound jointly and severally.

 

(g)         If anything in these Terms and Conditions is unenforceable, illegal or void then it is severed and the rest remains in force, unless the severance would change the underlying principal commercial purpose or effect.

 

(h)         Creative Wellness may vary these Terms and Conditions, at any time, by updating these Terms and Conditions on its website or by sending a copy of its updated Terms and Conditions to the Customer.  The then current Terms and Conditions will apply to any subsequent Order.