Terms of trade – Goods & AED services
1.1 These terms and conditions of trade (“Terms”) apply to all:
(a) goods supplied (“Goods”) including, automated external defibrillators (“AEDs”); and
(b) AED testing services supplied (“AED Services”)
by Heart Saver NZ Limited (“we, us, our”) to the Customer (“you”).
1.2 By placing an order with us for any Goods and / or AED Services you agree to be bound by these Terms as varied from time to time. For the avoidance of doubt, these Terms will supersede and prevail over any representations made by any of our agents or representatives.
1.3 A CARDIAC ARREST IS A COMPLICATED MEDICAL EVENT INFLUENCED BY A WIDE RANGE OF FACTORS. WE MAKE NO GUARANTEE THAT AN AED PURCHASED OR TESTED BY US WILL REVIVE AN INDIVIDUAL WHO SUFFERS A SUDDEN CARDIAC ARREST.
2. Price and Payment
2.1 Prices for Goods and AED Services will be as quoted in writing by us to you. In the absence of a written quote, the standard charge listed on our website applies. All prices are stated exclusive of Goods and Services tax and other taxes and duties which are payable by you (if applicable).
2.2 We (as accurately as possible) estimate the time and resources required to deliver AED Services to you. Where a price has been agreed before delivering AED services to you, we will not alter our invoices to compensate for a change in completion time.
2.3 However, if additional AED Services are required, which have not been outlined in the original contract, we reserve the right to invoice for the additional AED Services.
2.4 All freight, couriers, travel costs, and any other charges in relation to the supply of Goods or AED Services are in addition to the quoted price and will be payable by you.
2.5 Unless otherwise expressly stipulated by us, payment for all Goods and AED Services must be made by you to our nominated Bank Account within 7 days of the production of our invoice. We may, at our option, issue a monthly interim invoice where the delivery of AED Services is over a period exceeding one month.
2.6 If payment is made by credit card, a surcharge of 3% will added to our quoted price.
2.7 If you fail to make payment by the due date we reserve the right to impose a late penalty fee calculated at 3.5% above the Official Cash Rate of the Reserve Bank of New Zealand against the total balance outstanding. On outstanding invoices of $1,000.00 NZD or more, where a late penalty fee has been imposed, that outstanding invoice will also have an administration fee of $25.00 NZD charged.
2.8 Any expenses, disbursements and legal costs incurred by us in the enforcement of any rights contained in these Terms will be paid by you, including any reasonable solicitor’s fees or debt collection agency fees.
3. Delivery, Risk and Title
3.1 Goods purchased by you from us are deemed to have been delivered as set out below (“Delivered”), when, as relevant to your order:
(a) you collect them from us; or
(b) we deliver them to the address specified in your order.
3.2 Risk in Goods passes to you on Delivery as defined above. Title in Goods passes to you upon receipt of payment by us.
4. Responsibility for AED Maintenance & Performance
4.1 Each AED purchased by you will be accompanied by the manufacturer’s user manual. For the avoidance of any doubt, it is your responsibility to read the user manual carefully and to strictly adhere to the maintenance and inspection schedules and instructions detailed therein.
4.2 We take no responsibility and accept no liability for any failure or malfunction of an AED resulting from your failure to strictly adhere to the schedules and instructions detailed in the manufacturer’s user manual or otherwise.
5. Provision of AED Services
5.1 In providing AED Services to you we will test your AED with examples of safety and performance parameters for AEDs as referenced in NZ / AUS Standard 3551.2012. Testing will include reviewing the output of your AED at that specific point in time. For the avoidance of any doubt, AED Services do not include repair or calibration of your AED and testing your AED in line with NZ / AUS Standard 3551.2012 does not guarantee you are compliant with NZ / AUS Standard 3551.2012.
5.2 We will use all reasonable skill and care in providing AED Services in a timely and efficient manner.
5.3 We will not be liable for any delay or non-performance in providing AED Services, if the delay or non-performance is attributable (directly or indirectly) to circumstances beyond our reasonable control.
5.4 We shall not be obliged to accept any request for AED Services to be provided to you and will be entitled, at our sole discretion, to refuse to provide AED Services.
5.5 We may withdraw a quotation for AED Services at any time before it is accepted by you. All quotations will lapse without notice 60 days after being given.
5.6 You will not cancel any contract for us to provide AED Services (in full or in part) without first obtaining our written consent. Such notice of cancellation must be in writing.
5.7 For the avoidance of any doubt, in carrying out the AED Services or in respect of any matter concerning the AED Services, we do not provide any guarantee whatsoever that an AED that is the subject to the AED Services will work or function as intended. The AED Services undertaken by us only provide the results of the testing undertaken and information relevant to those results at the specific point in time the AED Services are completed.
6. Claims and Liability
NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS:
6.1 Any claim by you of any “Defect” (as defined in clause 7.2) in an AED or of a defect in any other Good or AED Service provided, including non-conformity to an order, must be made in writing to us within:
(a) 1 month of the Goods and / or AED Services being delivered; and
(b) 10 days of such Defect or defect being discovered.
6.2 We provide the Limited Warranty in respect of AEDs in clause 7.1. The Consumer Guarantees Act 1993 (“CGA”), the Fair Trading Act 1986 (“FTA”), and other statutes may impose warranties, conditions or obligations upon us which, by law, either cannot be excluded, or can only be excluded to a limited extent (“Imposed Warranties”). To the maximum extent permitted by law, you and we exclude from this agreement:
(a) Imposed Warranties; and
(b) All other warranties or conditions (whether express or implied) as to quality, condition, description, compliance with sample or fitness for purpose (whether statutory or otherwise) other than those expressly set out in this agreement are excluded.
6.3 Where you acquire Goods and/or AED Services from us, for the purposes of a business:
(a) the parties acknowledge and agree that:
(i) you are acquiring the Goods and/or AED Services covered by these Terms for the purposes of a business in terms of sections 2 and 43(2) of the CGA;
(ii) the Goods and/or AED Services are both supplied and acquired in trade for the purposes of the FTA and the parties agree to contract out of sections 9 (Misleading and deceptive conduct generally), 12A (Unsubstantiated representations) and 13 (False and misleading representations); and
(b) you agree that all warranties, conditions and other terms implied by the CGA or sections 9, 12A and 13 of the FTA are excluded from these Terms to the fullest extent permitted by law and the parties further acknowledge and agree that it is fair and reasonable that the parties are bound by this clause.
6.4 Where the Imposed Warranties or the Limited Warranty applies, you agree to give us a reasonable opportunity to inspect, verify and accept or reject any claim of a Defect or defective Goods and/or AED services. Where a Defect is at issue, Clause 7.2 applies. Where your claim of another defect is accepted by us, we may (at our discretion) repair, replace or give credit for the Goods or AED Services supplied. To the maximum extent permitted by law, we will not be otherwise liable to you or any third party, whether in contract, tort or otherwise, for any loss or damage arising directly or indirectly from Goods or AED Services supplied by us to you. For the avoidance of any doubt we will not be liable to you for:
(a) any indirect, special or consequential loss or damage; or
(b) loss of equipment or property; or
(c) economic loss or damage; or
(d) incurring of liability for loss or damage of any nature whatsoever suffered by third parties (including in each case incidental and punitive damages); or
(e) any loss of actual or anticipated profit, interest, revenue, anticipated savings or business or damage to goodwill,
even if we are advised in advance of the possibility of any such losses or damages.
We will not be liable for any losses arising from your misuse of the Goods including (without limitation):
(f) wilful damage;
(g) your negligence or that of your agents or employees;
(h) any alteration or repair you make to the Goods.
In any case, where we are found by a Court of competent jurisdiction to be liable to you for any reason whatsoever, the extent of our liability will not exceed the price that you have paid us for the Goods and/or AED services provided to you in the preceding 12 months.
6.5 You acknowledge and agree that the prices agreed reflect the limitations of liabilities contained in these Terms.
7. AED Warranty
7.1 We warrant only that any AED purchased from us will comply with the warranties offered, and for the period specified, by the manufacturer (“Limited Warranty”).
7.2 Where the AED does not meet the Limited Warranty (“Defect”), we will, at our sole discretion, either repair or replace the AED, or provide a refund. Our warranty is conditional upon:
(a) the defect not being caused or partly caused by, or arising through failure on the part of you to properly maintain the AED;
(b) you following any user manual, instructions or guidelines provided by us or the manufacturer;
(c) use of the AED immediately ceasing once any defect becomes apparent or would have become apparent to a reasonably prudent operator or user;
(d) the defect not being as a result of fair wear and tear or any accident or act of God; and
(e) the AED not having been repaired, altered or overhauled in any way.
7.3 In respect of all claims we shall not be liable to compensate you for any delay in either replacing or repairing the AED or in properly assessing your claim. During such time we are not required to provide you with a loan AED.
8. Returns Policy
8.1 If you would like to return Goods purchased from us, no questions asked, the Goods need to be returned to us within 10 Business Days of your purchase. The Goods must be unused, sealed / unopened with all packaging in its original condition and be accompanied by proof of purchase. You will be offered a refund based on the value paid at the time of purchase. You shall be responsible for all costs associated with returning the Goods to us.
9.1 These Terms may be terminated by notice in writing by us:
(a) if you commit any act of bankruptcy, enter into any arrangement with your creditors or (in the case of a company do any act which would render you liable to be liquidated), or if a resolution is passed or proceedings commenced for the liquidation or voluntary administration of you or if a receiver is appointed in respect of all or any of your assets;
(b) you are in breach of these terms and conditions; or
(c) upon completion of the Delivery of the Good and/or supply of the AED Services and payment in full by you.
9.2 These Terms may also be terminated by mutual agreement in writing between the parties.
9.3 All disclaimers and limitations of liability contained in these Terms will survive termination.
10. Intellectual Property
9.1. You agree and acknowledge that we are the owner and/or licensee of the intellectual property rights in systems and documentation, know-how and other intellectual property which may be utilised in the provision of Goods and/or AED Services to you and that you obtain no rights and or interests in such intellectual property by virtue of purchasing the Goods and/or AED Services from us.
9.2. You understand that all written material and computer software used in the process of delivering the Goods and/or AED Services remains the property of us. You release us from any responsibility that may arise from the use of any written copy produced on your behalf.
11. Confidential Information
11.1 Due to the nature of the work conducted by us, access to confidential information may be required. At all times both parties shall treat all non-public information and material received from the other party as confidential and shall not publish, release or disclose the same to a third party, unless required to do so by law or when prior written consent is received from the disclosing party.
11.2 Unless otherwise agreed, we reserve the right to work with other businesses in similar industries. If you would prefer that we do not work with other businesses you deem to be in competition with your own, please advise us prior to engaging in any long term agreement. Wherever possible we will endeavour to accommodate your request(s).
11.3 We engage third party contractors where necessary in the provision of Goods and/or AED Services. Contractors employed by us are qualified to carry out their role, highly professional and comply with the confidentiality requirements detailed above.
12. Force Majeure
Subject to clause 6 and 7, but notwithstanding any other provision of these Terms:
12.1 Should we be delayed in supplying Goods and/or AED Services due to any event not reasonably within our control, we may either:
(a) cancel your order of Goods and/or AED Services; or
(b) suspend our obligations to you under these Terms during the period when such event is causing delay,
in either case without incurring liability to you for any loss or damage whatsoever suffered by you or any other person.
13.1 By placing an order with us, you authorise us to collect, retain and use information about you for the following purposes:
(a) to manage your account with us, including sending you statements and invoices, organising payment, assessing your credit worthiness, supplying Goods and/or AED Services to you; and
(b) to provide you with information about our products and services and any special offers we believe may be of interest to you.
13.2 Under the Privacy Act 1993 you have the right to access and correct any personal information we hold about you. Please direct any such request to the Administration Manager – firstname.lastname@example.org – 0800 233 342.
14.1 You may not assign or transfer all or any of your rights or obligations under these terms without our prior written consent.
14.2 We are not bound by any error or omission in any invoice, order, form or other document.
14.3 You must keep all information you have provided to us up-to-date, including advising us in writing of any change of name, address or other details that would be relevant to your account with us. Notice will be sufficiently provided if it is personally delivered, posted or email to your last known postal or email address.
14.4 If any provision of these Terms is or becomes invalid or unenforceable, that provision will be deemed deleted from these terms to the extent of such invalidity or unenforceability and such invalidity or unenforceability will not affect the other provisions of these Terms, all of which will remain in full force and effect.