Drink Happy Limited – Customer Terms and Conditions
Drink Happy Limited (Drink Happy, we or us) agrees to supply goods (the Goods) to you, the Customer, in return for payment of the price for those Goods and subject to these Terms. Acceptance of delivery or receipt of any Goods will (notwithstanding any statement to the contrary by you) constitute acceptance of these Terms.
Price and Payment
- All prices include GST, any other applicable taxes and duties and insurance/freight/delivery/handling charges except where otherwise advised. You agree to pay the price and incidental charges, whether they are imposed before or after your order.
- Payment in full must be made in clear funds prior to delivery of your order unless we agree otherwise in writing.
Delivery and Risk
- Risk in Goods sold to you will pass to you on Delivery being the time the Goods are dispatched to you, whether the Goods are delivered to your address by us or uplifted from us by you or by a carrier arranged by you or us.
- If any Goods are damaged or destroyed before property in them passes to you, we are entitled, without prejudice to our other rights or remedies (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable in respect of the Goods whether or not the price has become payable under these Terms. The production of these Terms by us is sufficient evidence of our rights to receive the insurance proceeds without the need for any person dealing with us to make further enquiries.
- Any date or time stated for dispatch is an estimate only and not a condition of sale. Drink Happy shall not be liable for any delivery, shipment or other system failures which causes direct or indirect delay to your receiving the Goods.
- Ownership of all Goods supplied to you by us will not pass on Delivery, but will remain with us until we have received full payment in clear funds of all moneys you owe us (whether relating to those or other Goods, or any other matter). We hold a Security Interest in all Goods supplied to you and the proceeds of any resale of the Goods for payment of those moneys.
Exclusion of Warranties
- If you are in trade and are acquiring the Goods for business purposes, the guarantees under the Consumer Guarantees Act 1993 and sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 do not apply.
- Unless you have rights under the Consumer Guarantees Act 1993 or other legislation, which cannot be excluded or limited, there are no warranties express or implied. This disclaimer includes implied warranties as to merchantability and fitness for a particular purpose.
- Once you have paid us for the Goods, we will pass on to you the benefit of any manufacturer’s warranty that applies to the Goods, without being directly liable to you under any such warranty.
We are unable to guarantee the continuous availability of any product. We reserve the right to substitute similar Goods and make changes to Goods delivered without notice to you.
Limitation of Liability
- We are not liable to you for any loss or damage arising from delay or failure to perform our obligations due to any matter beyond our reasonable control nor any loss or damage caused or contributed to by you.
- You accept that no liability shall be attributed to us for any damages or injury (sickness, disease or loss of life) caused to you or any person resulting from the Goods.
- We and our employees and agents shall not be liable to you for any claim for breach of Contract (except as provided in clause 5.3 below) or Statute or breach of duty in Tort (including negligence) or for any claim in Equity or otherwise at law.
- Your sole remedy against us shall be limited to breach of contract and the extent of any such liability shall be limited, at our option, to repair or replacement of the Goods, payment of the cost of repairing or replacing the particular defective Goods or acquiring equivalent Goods or refund of the price you paid for the particular defective Goods. We will not, in any case, be liable for any other losses or damages whether general, exemplary, punitive, direct, indirect or consequential, including loss of business profits.
- No action may be brought against us unless notice of such claim is given to us within one week of delivery of the Goods to us by you.
- If you do not pay any monies owed to us (the unpaid monies) by the due date, we may charge penalty interest at a rate of 2% per calendar month calculated daily and capitalised monthly on the unpaid monies from the due date until payment in full is made (including after as well as before any Court judgment).
- You indemnify us for and agree to pay, on demand, all costs we incur (including legal costs on a solicitor-client basis and debt collection costs) in the recovery or attempted recovery of unpaid moneys and/or the enforcement of these Terms or the Security Interest contained in these Terms.
- If there is a dispute between the parties in relation to this Agreement, either party may give the other party notice of the dispute.
- Before taking any Court action, a party must use best efforts to resolve any dispute under, or in connection with, the Agreement through good faith negotiations. If no resolution is possible within 10 days of a meeting to resolve the dispute then a party may apply for mediation and if the parties cannot agree then the mediator will be appointed by the President of the New Zealand Law Society. If mediation does not resolve the dispute then the parties may take court action.
- Subject to clause 9.2, we reserve the rights to any intellectual property that may be associated or attributed to our agreement with you.
- The holder of any intellectual property associated with our products are retained by the holder.
- These Terms apply to all transactions we have with you. If there is any inconsistency between these Terms and any order submitted by you or any other arrangement with us, these Terms prevail unless otherwise agreed by us in writing.
- If any provision of these Terms is held by any court to be illegal, void or unenforceable, that will not impair the enforceability of the remaining provisions.
- These Terms are governed by, and shall be construed in accordance with, the laws of New Zealand. Both parties submit to the non-exclusive jurisdiction of the New Zealand Courts.
- In the event of an act of God (force majeure) all obligations under our agreement with you will be suspended until those circumstances no longer apply.
- We may review and change these Terms at any time and from time to time. Any such change will take effect from the date on which we notify you of the change. You consent to such future changes being made by updates on our website, and agree that such update shall constitute agreement by you to the amended terms.