Terms & Conditions
These terms and conditions are the contract between you and Black Duck NZ LTD (“us”, “we”, etc). By visiting or using Our Website in any way, you agree to be bound by them.
I / We are: Black Duck NZ Ltd, a company registered in New Zealand number 985690. Our address is: PO BOX 7462 Taradale 4141.
You are: Anyone who uses Our Website.
Please read this agreement carefully and save it. If you do not agree with it, you should leave Our Website immediately.
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Definitions
| “Carrier” | means any person or business contracted by us to carry Goods from us to you. |
| “Content” | means any content in any form published on Our Website by us or any third party with our consent. |
| “Goods” | means any of the goods we offer for sale on Our Website, or, if the context requires, goods we sell to you. |
| “Our Website” | means any website of ours, and includes all web pages controlled by us. |
| “Post” | means display, exhibit, publish, distribute, transmit and/or disclose information, Content and/or other material on to Our Website, and the phrases “Posted” and “Posting” shall be interpreted accordingly. |
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Interpretation
In this agreement unless the context otherwise requires:- a reference to a person is a reference to one or more individuals, whether or not formally in partnership, or to a corporation, government body, or other association or organisation.
- these terms and conditions apply to all supplies of Goods by us to any customer. They prevail over any terms proposed by you.
- any agreement by any party not to do or omit to do something includes an obligation not to allow some other person to do or omit to do that same thing.
- any obligation of any person arising from this agreement may be performed by any other person.
- in this agreement references to a party include references to a person to whom those rights and obligations are transferred or pass as a result of a merger, division, reconstruction or other re-organisation involving that party.
- the headings to the paragraphs and schedules (if any) to this agreement do not affect the interpretation.
- a reference to an act or regulation includes new law of substantially the same intent as that act or regulation.
- these terms and conditions apply in any event to you as a buyer or prospective buyer of our Goods and so far as the context allows, to you as a visitor to Our Website.
- this agreement is made only in the English language. If there is any conflict in meaning between the English language version of this agreement and any version or translation of this agreement in any other language, the English language version shall prevail.
Our contract with you
- This agreement contains the entire agreement between the parties and supersedes all previous agreements and understandings between the parties.
- Each party acknowledges that, in entering into this agreement, he does not rely on any representation, warranty, information or document or other term not forming part of this agreement.
- If you use Our Website in any way and make an order on behalf of another person you warrant that you have full authority to do so and you accept personal responsibility for every act or omission by you.
- Because we rely on our suppliers, We do not guarantee that Goods advertised on Our Website are available. We may change these terms from time to time. The terms that apply to you are those posted here on Our Website on the day you order Goods.
3.5. The price of Goods may be changed by us at any time. We will never change a price so as to affect the price charged to you at the time when you buy those Goods. - If in future, you buy Goods from us under any arrangement which does not involve your payment via Our Website; these terms still apply so far as they can be applied.
- We do not sell the Goods in all countries. We may refuse to deliver the Goods if you live in a country we do not serve.
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Acceptance of your order
- Your order is an offer to buy from us. We shall accept your order by e-mail or phone confirmation. That is when our contract is made. Our message will also confirm details of your purchase and tell you when we shall despatch your order.
- If we do not have all of the Goods you order in stock, we will offer you alternatives. If this happens you may:
- accept the alternatives we offer;
- cancel all or part of your order.
- Inform you of an approximate date for delivery; please note these delivery times may change.
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Price and payment
- The price payable for the Goods that you order is clearly set out on Our Website. These prices are in New Zealand Dollars.
- Prices include goods and services tax (“GST”). If you show by your delivery address that you reside outside New Zealand, we will refund to you the amount charged as GST.
- Bank charges by the receiving bank on payments to us will be borne by us. All other charges relating to payment in a currency other than New Zealand dollar will be borne by you.
- Any information given by us in relation to exchange rates are approximate only and may vary from time to time.
- If, by mistake, we have under-priced Goods, we will not be liable to supply those Goods to you at the stated price, provided that we notify you before we dispatch it to you.
- The price of the Goods does not include the delivery charge which will be charged at the rates applicable at the date you place your order and which will be displayed on a page of Our Website before we ask you to pay.
- If we owe you money (for this or any other reason), we will credit your credit or debit card as soon as reasonably practicable but in any event no later than 15 days from the date when we accept that repayment is due.
Security of your credit card
We take care to make Our Website safe for you to use.
- Card payments are not processed through pages controlled by us. We use one or more online payment service providers who will encrypt your card or bank account details in a secure environment.
- If you have asked us to remember your credit card details in readiness for your next purchase or subscription, we will securely store your payment details on our systems. These details will be fully encrypted and only used to process your automatic monthly payments or other transactions which you have initiated.
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Delivery and pick up
- Deliveries will be made by the Carrier to the address stipulated in your order. You must ensure that someone is present to accept the delivery.
- If we are not able to deliver your Goods within the timeframe as specified in our email confirmation, we shall notify you by e-mail to arrange another date for delivery.
- We may deliver the Goods in instalments if they are not all available at the same time for delivery.
- Goods are sent at our risk until signed for by you or by any other person at the address you have given to us.
- All Goods must be signed for on delivery by an adult aged 18 years or over. If no one of that age is at the address when the delivery is attempted the Goods may be retained by the driver. When your Goods arrive, it is important that you check immediately the condition and quantity. If your Goods have been damaged in transit, you must refuse the delivery and immediately contact us so that we may dispatch a replacement quickly and minimise your inconvenience.
- Signing “Unchecked”, “Not Checked” or similar is not acceptable.
- Goods are sent by Courier. We will send you a message by email to tell you when we have despatched your order.
- If we agree with you to deliver on a particular day or at a particular time, we will do our best to comply. But no time given is to be treated as contractual. So we are not liable to you for any expense or inconvenience you incur on account of delayed delivery or non-delivery.
- Time for delivery specified on the order, if any, is an estimate only and time shall not be of the essence.
- We are happy for you to pick up Goods from our shop/ warehouse provided you make an appointment in advance and payment has been received into our bank.
- If you pick up Goods from our premises then:
- we will not be able to assist you in loading heavy items;
- Goods are at your risk from the moment they are picked up by you or your Carrier from our shop / warehouse;
- you agree that you are responsible for everything that happens after you take possession of the Goods, both on and off our premises, including damage to property of any sort, belonging to any person.
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Foreign taxes and duties
- If you are not in New Zealand, we have no knowledge of, and no responsibility for, the laws in your country.
- You are responsible for purchasing Goods which you are lawfully able to import and for the payment of import duties and taxes of any kind levied in your country.
Liability for subsequent defects
- Please examine the Goods received from us immediately you receive them. If you do not tell us of any defect or problem within 30 days of receipt of the Goods, we shall assume that you have accepted them.
- The procedure to return the faulty Goods is as follows:
- the Goods must be returned to us as soon as any defect is discovered but not later than 15 Days from receipt by you.
- before you return the Goods to us, please carefully re-read the instructions and check that you have fit them correctly.
- please follow the returns procedure [provided on Our Website / set out on the reverse side of the delivery note we sent to you with the Goods / which we will send to you as soon as you notify us that you wish to return them.]
- We will return your money subject to the following conditions:
- we receive the Goods with labels and packaging intact where applicable and the product/products must be in a clean and unmarked condition.
- you comply with our returns procedure. We cannot return your money unless we know who sent them.
- you tell us clearly what is the fault you complain of, when it first became apparent, and other information to enable us to identify or reproduce it.
- If any defect is found, then we shall:
- repair or replace the Goods, or
- refund the full cost you have paid including the cost of returning the Goods.
- If delivery was made to New Zealand address, you are also protected by the Fair Trading Act 1986 and the Consumer Guarantees Act 1993.
Disclaimers
- The law differs from one country to another. This paragraph applies so far as the applicable law allows.
- All implied conditions, warranties and terms are excluded from this agreement. If in any jurisdiction an implied condition, warrant or term cannot be excluded, then this sub paragraph shall be deemed to be reduced in effect, only to the extent necessary to release that specific condition, warranty or term.
- We make no representation or warranty for:
- the quality of the Goods;
- any implied warranty or condition as to merchantability or fitness of the Goods for a particular purpose;
- the correspondence of the Goods with any description;
- the adequacy or appropriateness of the Goods for your purpose.
- We claim no expert knowledge in any subject. We disclaim any obligation or liability to you arising directly or indirectly from information you take from Our Website.
- We shall not be liable to you for any loss or expense arising out of or in connection with your use of Our Website, which is indirect or consequential loss, or economic loss or other loss of turnover, profits, business or goodwill. This applies whether in an action of contract, negligence or otherwise, even if such loss was reasonably foreseeable or we knew you might incur it.
- We make no representation or warranty and accept no responsibility in law for:
- accuracy of any Content or the impression or effect it gives;
- delivery of Content, material or any message;
- privacy of any transmission;
- any act or omission of any person or the identity of any person who introduces himself to you through Our Website;
- any aspect or characteristic of any goods or services advertised on Our Website;
- Our Website includes Content Posted by third parties. We are not responsible for any such Content. If you come across any Content which offends you, please contact us via the “Contact us” page on Our Website.
- We will do all we can to maintain access to Our Website, but it may be necessary for us to suspend all or part of our service for repairs, maintenance or other good reasons. We may do so without telling you first.
- You agree that in any circumstances when we may become liable to you, the limit of our liability is the amount you have paid us in the immediately preceding 12 month period for the Goods concerned.
- This paragraph (and any other paragraph which excludes or restricts our liability or provides an indemnity to us) applies to our directors, officers, employees, subcontractors, agents and affiliated companies, as well as to us. Any of them may enforce this provision under the Contract and Commercial Law Act 2017.
- If you become aware of any breach of any term of this agreement by any person, please tell us by email. We welcome your input but do not guarantee to agree with your judgement.
- Nothing in this agreement excludes liability for a party’s fraud.
Your account with us
- You agree that you have provided, and will continue to provide accurate, up to date, and complete information about yourself. We need this information to provide you with the Goods.
- If you use Our Website, you are responsible for maintaining the confidentiality of your account and password and for preventing any unauthorised person from using your account.
- You agree to accept responsibility for all activities that occur under your account or password. You should tell us immediately if you believe some person has accessed your account without your authority and also log in to your account and change your password.
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Restrictions on what you may Post to Our Website
You agree that you will not use or allow anyone else to use Our Website to Post Content which is or may:- be malicious or defamatory;
- consist in commercial audio, video or music files;
- be illegal, obscene, offensive, threatening or violent;
- be sexually explicit or pornographic;
- be likely to deceive any person or be used to impersonate any person, or to misrepresent your identity, age or affiliation with any person;
- give the impression that it emanates from us or that you are connected with us or that we have endorsed you or your business;
- solicit passwords or personal information from anyone;
- be used to sell any goods or services or for any other commercial use;
- include anything other than words (i.e. you will not include any symbols or photographs) except for a photograph of yourself in your profile in such place as we designate;
- link to any of the material specified above, in this paragraph;
- send age-inappropriate communications or Content to anyone under the age of 18.
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Your Posting: restricted content
In connection with the restrictions set out below, we may refuse or edit or remove a Posting which does not comply with these terms. In addition to the restrictions set out above, a Posting must not contain:- hyperlinks, other than those specifically authorised by us;
- keywords or words repeated, which are irrelevant to the Content Posted;
- the name, logo or trademark of any organisation other than yours;
- inaccurate, false, or misleading information.
How we handle your Content
- Our privacy policy is strong and precise. It complies fully with Privacy Act 2020 which is at [link to privacy policy]..
- If you Post Content to any public area of Our Website it becomes available in the public domain. We have no control who sees it or what anyone does with it.
- Even if access to your text is behind a user registration it remains effectively in the public domain because someone has only to register and log in, to access it. You should therefore avoid Posting unnecessary confidential information.
- We need the freedom to be able to publicise our services and your own use of them. You therefore now irrevocably grant us the right and licence to edit, copy, publish, distribute, translate and otherwise use any Content that you place on Our Website, in public domains and in any medium. You represent and warrant that you are authorised to grant all such rights.
- We will use that licence only for commercial purposes of the business of Our Website and will stop using it after a commercially reasonable period of time.
- You agree to waive of your right to be identified as the author and your right to object to derogatory treatment of your work as provided in the Copyright Act 1994 as amended.
- You now irrevocably authorise us to publish feedback, comments and ratings about your activity through Our Website, even though it may be defamatory or critical.
- Posting content of any sort does not change your ownership of the copyright in it. We have no claim over it and we will not protect your rights for you.
- You understand that you are personally responsible for your breach of someone else’s intellectual property rights, defamation, or any law, which may occur as a result of any Content having been Posted by you.
- You accept all risk and responsibility for determining whether any Content is in the public domain and not confidential.
- Please notify us of any security breach or unauthorised use of your account.
Removal of offensive Content
- For the avoidance of doubt, this paragraph is addressed to any person who comes on Our Website for any purpose.
- We are under no obligation to monitor or record the activity of any customer for any purpose, nor do we assume any responsibility to monitor or police Internet-related activities. However, we may do so without notice to you and without giving you a reason.
- If you are offended by any Content, the following procedure applies:
- Your claim or complaint must be submitted to us in the form available on Our Website, or contain the same information as that requested in our form. It must be sent to us by post or email.
- we shall remove the offending Content as soon as we are reasonably able;
- after we receive notice of a claim or complaint, we shall investigate so far as we alone decide;
- We may re-instate the Content about which you have complained or not.
- In respect of any complaint made by you or any person on your behalf, whether using our form of complaint or not, you now irrevocably grant to us a licence to publish the complaint and all ensuing correspondence and communication, without limit.
- You now agree that if any complaint is made by you frivolously or vexatiously you will repay us the cost of our investigation including legal fees, if any.
Security of Our Website
If you violate Our Website we shall take legal action against you.
You now agree that you will not, and will not allow any other person to:
- Modify, copy, or cause damage or unintended effect to any portion of Our Website, or any software used within it.
- link to Our Website in any way that would cause the appearance or presentation of Our Website to be different from what would be seen by a user who accessed Our Website by typing the URL into a standard browser;
- download any part of Our Website, without our express written consent;
- collect or use any product listings, descriptions, or prices;
- collect or use any information obtained from or about Our Website or the Content except as intended by this agreement;
- aggregate, copy or duplicate in any manner any of the Content or information available from Our Website, other than as permitted by this agreement or as is reasonably necessary for your use of Our Website;
- Share with a third party any login credentials to Our Website.
- Despite the above terms, we now grant a licence to you to:
- Create a hyperlink to Our Website for the purpose of promoting an interest common to both of us. You can do this without specific permission. This licence is conditional upon your not portraying us or any product or service in a false, misleading, derogatory, or otherwise offensive manner. You may not use any logo or other proprietary graphic or trademark of ours as part of the link without our express written consent.
- you may copy the text of any page for your personal use in connection with the purpose of Our Website.
Indemnity
You agree to indemnify us against all costs, claims and expense arising directly or indirectly from:
- your failure to comply with the law of any country;
- your breach of this agreement;
- any act, neglect or default by any agent, employee, licensee or customer of yours;
- a contractual claim arising from your use of the Goods;
- a breach of the intellectual property rights of any person.
Intellectual Property
- We will defend the intellectual property rights in connection with our Goods and Our Website, including copyright in the Content whether provided by us or by any other content provider (including copyright in text, graphics, logos, icons, images, audio clips, digital downloads, data, and software).
- Except as set out below, you may not copy, modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, display, or in any way exploit any of the Content, in whole or in part.
- You may not use our name or logos or trademarks or any other Content on any website of yours or that of any other person.
- Subject to the other terms of this agreement, you may download or copy Content only for your own personal use, provided that you maintain all copyright and other notices contained in it. You may not store electronically any significant portion of any Content.
Miscellaneous matters
- When we communicate with you we do so by email or phone. You agree that email or phone communications are contractually binding in the same way as properly signed and dated paper sent by post.
- Where we provide goods or without specific charge to you, then it (or they) is deemed to be provided free of charge, and not to be associated with any other Goods for which a charge is made. Accordingly, there is neither contractual nor other obligation upon us in respect of those goods or that service.
- If any term or provision of this agreement is at any time held by any jurisdiction to be void, invalid or unenforceable, then it shall be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction and to prevent it from being void and it shall be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as severable and shall not in any way affect any other of these terms.
- The rights and obligations of the parties set out in this agreement shall pass to any permitted successor in title.
- No failure or delay by any party to exercise any right, power or remedy will operate as a waiver of it nor indicate any intention to reduce that or any other right in the future.
- Any communication to be served on either party by the other shall be delivered by hand or sent by express post or recorded delivery or by e-mail. It shall be deemed to have been delivered:
- if delivered by hand: on the day of delivery;
- if sent by post to the correct address: within 72 hours of posting;
- If sent by e-mail to the address from which the receiving
- party has last sent e-mail: within 24 hours if no notice of non-receipt has been received by the sender.
- In the event of a dispute between the parties to this agreement, then they undertake to attempt to settle the dispute by engaging in good faith with the other in a process of mediation before commencing arbitration or litigation.
- This agreement does not give any right to any third party under the Contract and Commercial Law Act 2017 or otherwise.
- Neither party shall be liable for any failure or delay in performance of this agreement which is caused by circumstances beyond his reasonable control,
- In the event of any conflict between any term of this agreement and the provisions of the constitution of a limited company or any comparable document intended to regulate any other corporate or collective body, then the terms of this agreement shall prevail.
- The validity, construction and performance of this agreement shall be governed by the laws of New Zealand and you agree that any dispute arising from it shall be litigated only in that country.
Explanatory notes
E-commerce terms and conditions template: retailer of goods
Paragraph specific notes:
Notes numbering refers to paragraph numbers.
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Definitions
Every business is different, not only in terms of the product or service being offered, but also the processes. The defined terms that we use are unlikely to suit most businesses perfectly.
By all means use the find and replace function in your word processor to change them, either to other general adjectives, or to specific product or service names. For example:
We use You might decide to change to
“Goods” “Products or Toys”/ “Headphones”
“Our Website” “The Toy Store Site”/ “The Site”
But if you do change the defined word, make sure it applies to every use of it in the document. Remember too, that when a word or phrase is defined, the defined meaning, capitalised, takes precedence over the common meaning of that word or phrase.
You should first decide on the contents of the document, then return to check what definitions are needed and whether they really fit the text you have left in place.
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Interpretation
Leave these items in place unless there is a good reason to edit or remove. Many of them strengthen the framework within which the agreement operates.
Our contract with you
This paragraph prevents a party from later saying he was relying on some other document or web site or conversation.
Acceptance of your order
This paragraph establishes the contract. This is very important in an Internet contract because there are so many places in the buying procedure where it could be claimed that the contract has been completed. By leaving the point at which the contract is formed as late as possible, you avoid a position arising where:
- you hold your customers’ goods; or
- every piece of advertising or information on your website could constitute an offer; or
- a customer could claim goods that you inadvertently priced wrongly; or
- goods are provided later than you expected or represented.
There are three options. Make quite sure that one of these accurately reflects the way your order process works.
Price and payment
You must edit these paragraphs to make sure that they reflect how your business works.
Security of your credit card
This paragraph is more for information than contractual commitment. We have included it here because many users are reluctant to make payment, so this assurance given at the point of sale will allay their fears.
For payment you may have various alternatives like the PayPal and cheque. Edit this paragraph accordingly.
Security of your credit card
As for the paragraph on price and payment, there are many alternative ways that your business could work. Edit these paragraphs to suit your business. When a business accepts your payment for goods they must supply them to consumer within the timeframe they have indicated or if no time was specified, within a reasonable time.
Foreign taxes and duties
It is important to make this point clear if any of your sales are to other countries. It is not simply a question of avoiding expense or dealing with these matters yourself. More important is that if you tangle with the tax authorities of a foreign government, you may find yourself on the wrong side of the law if you later travel to that country.
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Liability for subsequent defects
Consumer contracts are protected by the Fair Trading Act 1986 and the Consumer Guarantees Act 1993 as amended. If goods are not of satisfactory quality, as described, fit for particular purpose or defective then they may be replaced, repaired or returned for a full refund. This paragraph provides a framework to enable you to comply with the law.
Disclaimers
Disclaimers are not always binding. The law is complicated and much depends on the facts of each case. Our best advice to you is to include these disclaimers so far as they apply to your business, but do not expect that you can conduct your business with disregard to basic moral principles.
Your account with us
These terms provide some protection in case of customer disputes about use of an account. We recommend leaving these if your website records customer information for subsequent purchases. If they are not applicable, remove them.
Restrictions on what you may Post to Our Website
This and the following four paragraphs relate directly to aspects of the interface between you and your buyers. The more they are allowed to enter data, upload, download, leave messages, and so on, the greater your risk. You cannot stop a criminal by a term in a document, but you can make clear to regular users, before and after the event, that you will take a tough line for bad behaviour.
The paragraphs in this section have two purposes: the first is the obvious and named purpose of preventing damage to your website and establishing a contractual obligation by your site users not to do so. Secondly, it may assist in protecting you from civil or criminal charges for which you may otherwise be liable as a result of what someone else posts to your website.
No matter what you put in these paragraphs, there is no certainty that you may not be the subject of some sort of attack or other problems. However, we do think it is worth providing a full and strict policy. By doing so, you have the best possible defence against anyone who claims he has been insulted, injured, defamed, or whatever.
Of course, anyone who wishes to continue to use your business will comply.
We suggest that you edit these paragraphs in line with the perceived extent of your risk.
Your Posting: restricted content
This paragraph continues in the vein of the previous one. As you see, we intend to make clear that certain other activities are prohibited.
How we handle your Content
It is a question of balance and maybe how your buyers will react. You are free to delete all or any of it.
This particular paragraph covers a sensitive issue. You should edit to suit the way you operate your business. You need to provide a balance between making precise promises which could trip you up on the one hand and giving a tight enough framework to convince doubters that you will not sell their data. You should also make sure you have the current Net Lawman privacy policy in support.
Removal of offensive Content
This paragraph is targeted at anyone who is aggrieved by your site content. He may or may not be one of your customers. By stating and following this policy you will reduce the chance of any claim for defamation, breach of copyright, and so on. Depending on how you attract acceptance of the terms generally, this paragraph may not be enforceable against a visitor who has not explicitly agreed to these T&C (for example, visitors who are not subscribers).
Security of Our Website
There is an intentional overlap here with the paragraph on restrictions on posting. Your need for this provision also depends on the extent to which users are able to post content of any sort. Delete provisions which are stronger than you need.
Indemnity
We suggest no edits.
Intellectual Property
Few business managers appreciate just how much IP is owned by the business. There is an enormous variety of IP rights, from domain names to trade marks.
We suggest that you edit these paragraphs, but keep them within the document.
Miscellaneous matters
A number of special points. Unless you have a good reason to delete any one of these, we recommend that they should remain as drawn.
