Terms and Conditions of Sale
Last updated: 2 December 2022.
By placing an order with us, you agree to the following terms and conditions (“Terms”). The Terms constitute the entirety of our agreement except where otherwise agreed by us in writing and approved or signed by a duly authorised officer.
- Rules for reading these Terms
- In these Terms:
- The words “we”, “us” and “our” refers to Nimbl Inc Limited, a limited liability company registered in New Zealand.
- The words “you” and “your” refer to the person or organisation placing an order with us.
- “Goods” refers to any wheelchair and/or related accessories that you order from us.
- In these Terms:
- We do not have to accept your order
- We are not obliged to accept any order you place with us.
- We will inform you if we accept your order. Our acceptance may be subject to your agreement to additional terms that we may make our acceptance conditional upon (“Further Terms”).
- We will seek your written agreement to any Further Terms.
- However, we will be reasonably entitled to infer agreement to proposed Further Terms from your subsequent conduct and such reasonable inference will be deemed to be binding on you.
- You are responsible for determining suitability
- You agree that you have determined for yourself that the Goods are entirely suitable for your needs in consultation with your own physician, health and other advisors.
- You agree that we do not provide medical or health advice and that we have no knowledge, express or implied, as to whether the Goods are suitable for your needs.
- We have no responsibility to you if you later determine that the Goods are not suitable for your needs.
- Our relationship is governed by New Zealand law
- We are a New Zealand business. You agree that you have placed your order in New Zealand.
- These Terms are governed by and construed according to the laws of New Zealand and the parties submit to the exclusive jurisdiction of the courts of New Zealand in respect of any dispute or proceeding arising out of these Terms.
- You are responsible for complying with the legislation or regulations governing the importation of the Goods into the country of destination.
- We will send the completed goods to you
- We will arrange for manufacture of the Goods to your specifications once your order has been accepted.
- On completion of their manufacture, the Goods will be delivered to the address specified in your accepted order at your cost.
- Delivery is deemed to have been completed when the Goods are physically handed over to a courier or other carrier to be sent to you.
- If we have given you a date for completion or delivery, that date is approximate only and we give no warranty that delivery will occur on or before that date.
- We may extend the date for delivery because of any reason or other circumstance outside our control.
- All payments must be received before goods are dispatched
- In consideration of us supplying the Goods, you will pay to us the specified price plus any disbursements (including any delivery costs and applicable taxes and levies) incurred by us on your behalf.
- Our prices are inclusive of Goods and Services Tax (if any). However, we are entitled to add to the price the amount of any other sales, excise and other taxes payable by us in respect of the sale and delivery of Goods to you.
- Any customs duties or other charges, fines or assessments whatsoever levied on the Goods for delivery outside of New Zealand will be met by you.
- Unless agreed otherwise, you must pay us a deposit equal to fifty percent of the total price immediately on an order being accepted, time being of the essence.
- Any deposit will be non-refundable except in the case of our termination of our agreement by us without fault on your part.
- Nothing in this clause prevents us from seeking damages or costs in excess of any deposit for any breach or repudiation of the agreement.
- The balance of the price, and any additional costs associated with delivery, are payable within seven days of our notification to you that the Goods are ready for dispatch to you, time being of the essence.
- If you do not make payment on the due date, you must pay us late payment interest at the rate of 16% per annum, accruing daily on the total amount outstanding from the due date to the date of payment in full of the amount due, including any accrued interest.
- Payment of all sums will be without set-off or deduction of any kind.
- We may apportion payments to outstanding accounts as we determine in our sole discretion.
- Unless specified otherwise, all amounts payable are in New Zealand dollars.
- Where payments are made by you through a credit card, 3% of the transaction value may be charged to you as a condition of accepting the payment.
- We retain ownership until paid and risk until delivery
- We retain ownership of the Goods until all amounts payable by you are paid in full. This creates a security interest, as defined in the Personal Property Securities Act 1999.
- Risk passes to you on completion of delivery. You will be responsible for ensuring the Goods are insured from that point.
- We use contractors to assist with the manufacture of Goods
- We will contract the manufacture of the Goods to our suppliers. This does not relieve us from any obligation to you under this agreement.
- Our manufacturing contractors will be engaged by us will be responsible to and paid by us.
- There may be some variation in the Goods
- You acknowledge the Goods and any materials in the Goods may vary from any description, photo, or specification.
- Any variation, irregularity or imperfection in the materials will not constitute a failure of the Goods or materials to correspond with the sample, description, photo, or specification provided that the Goods remain fit for their intended purpose.
- Except as these Terms expressly provide, our liability in respect of materials which are defective or are not in compliance with the specification is excluded to the fullest extent permitted by law. Where that liability cannot be excluded, our liability for materials is limited to the amounts we receive under any warranty from the manufacturer/supplier of such materials.
- You must check the Goods on receipt
- Once you take physical possession of the Goods, you must inspect them and, within 10 days of taking possession, notify us of any claimed defect or failure to comply with their description.
- You must afford us an opportunity to inspect the Goods within a reasonable time following notice and before any use is made of them.
- If you fail to comply with these provisions, the Goods shall be deemed to be in accordance with the agreement and free from any defect or damage which would be apparent on a reasonable examination of the Goods.
- Refunds and returns
- You acknowledge that we are not required to agree to accept any return or make any refund in respect of the Goods simply if you change your mind after placing an order with us.
- However, if you change your mind within 30 days of your taking possession of a completed wheelchair then we will offer you terms for a partial refund in exchange for the return of those components of the wheelchair that may be reusable by us.
- There is a limit on our liability to you
- Where you order Goods for your personal use, as a retail customer, we guarantee that the Goods will be free from defects in material and workmanship for a period of 1 year from the date of delivery.
- However, we will not be liable in any way for any loss or damage arising from fair wear and tear; wilful damage; any failure to follow our instructions as to the care and use of the Goods or any alteration or repair of the Goods other than approved by us.
- Where you engage us to install the Goods for the purposes of a business, as a commercial customer, you agree that the Goods are both supplied and acquired in trade for the purposes of 43(2) of the Consumer Guarantees Act 1993 and the parties contract out of the Consumer Guarantees Act 1993 to the fullest extent permitted by law; and that it is fair and reasonable that you are bound by the exclusion in this clause.
- Except to the extent that the law prevents us from excluding liability, we will not be liable for any loss or damage or liability of any kind whether suffered or incurred by you or another person and whether in contract, or tort (including in negligence), or otherwise and whether such loss or damage arises directly or indirectly from the Goods or materials provided by us to you.
- To the extent we are liable for any loss or damage suffered by you arising from breach of these Terms or for any other reason, such liability is limited to the total price paid by you.
- Problems may arise beyond our control
- We will not be liable for any delay or failure to deliver the Goods if the cause of such delay or failure is beyond our control.
- We will not be liable for any delay or failure to manufacture or deliver the Goods if the cause of such delay or failure is beyond our control.
- We retain all intellectual property rights
- We are the exclusive owner of all intellectual property rights and interests (including copyright, patent and design rights, drawings, documents, data, procedures, calculations, and all other statutory and common law rights and interests) in the Goods.
- We retain exclusive worldwide ownership of our artistic styles, methods of working, techniques, ideas, and know-how.
- You must not attribute the Goods to anyone other than us or remove any of trade marks or logos from the Goods.
- Neither you nor or any person acting on your behalf, may attempt to alter, disassemble, decrypt or reverse engineer the Goods without our consent.
- The above clauses continue in force notwithstanding any termination of the agreement.
- We will communicate by email
- Any notice may be delivered in person, posted, or sent by email to you or to any director, where you are a company.
- You must meet our costs of enforcing these Terms
- You must pay our costs of and incidental to the enforcement or attempted enforcement of our rights, remedies and powers under these Terms including all debt recovery costs and legal costs (on a solicitor and client basis).
- Our agreement is with you
- You must not assign any of your rights, powers, or obligations under this agreement without our prior written consent.
- Disputes are to be resolved informally at first
- If a dispute arises under or in relation to this agreement, the parties will act in good faith to resolve the dispute.
- Any claim or dispute arising under this agreement will be determined by mediation if the parties are unable to resolve the dispute themselves within one calendar month of the dispute arising. Nothing in this clause prevents either party from taking immediate steps to seek any equitable relief before the New Zealand courts.
- Your personal information
- You acknowledge that we may collect, use and disclose your personal information for the following purposes:
- Administering, whether directly or indirectly, our agreement with you and enforcing our rights, entitlements and interests.
- Marketing goods and services provided by us to you.
- Ascertaining at any time your creditworthiness and obtaining at any time credit statements and/or reports in your respect.
- Enabling us to notify any credit agency of any application for credit or default in the observance of any obligation under any agreement between you and us and enabling us to provide such personal information to any credit agency.
- Enabling us to communicate with you for any purpose.
- We may apply your personal information for any other purpose provided that you are not identifiable.
- We may assign a unique identifier to you to carry out our business efficiently.
- The intended recipient of the personal information is us and any third-party providing services to us in relation to the purposes outlined above.
- Where such third party is located outside of New Zealand then it may not be required to protect your personal information in a way that complies with the Privacy Act 2020.
- Your personal information shall be held and used for as long as we deem necessary to carry out the functions of its business efficiently in accordance with the Privacy Act 2020.
- You have the right under the Privacy Act 2020 to obtain access to and to request correction of any personal information concerning it held by us.
- You acknowledge that we may collect, use and disclose your personal information for the following purposes: