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Terms of Trade

CHILL WELLNESS LIMITED – TERMS OF TRADE

 

 1.           NATURE AND SCOPE OF TERMS OF TRADE

1.1         We provide access to advanced wellness treatments and support for recovery, relaxation, and rejuvenation.

1.2         We may from time to time provide Goods to support the Services provided or sell Goods to you for personal use.

1.3         These terms of trade (the Terms) form a contract that applies between us and you in respect of any supply of Goods and/or Services provided to you by us.

1.4         You acknowledge that any request for us to provide Goods or Services constitutes an acknowledgment by you that the contract between you and us shall be governed by these Terms.

1.5         From time to time, we may issue updated or amended Terms, which shall be deemed to be accepted immediately from the date on which we publish amended Terms on our Website and any new order of Services or Goods following that date shall be governed by the amended or updated Terms.

1.6         We and you may agree in writing (including in special terms that apply to certain courses) terms and conditions that either vary or are additional to these Terms, otherwise these Terms will apply to all transactions between us and you.

1.7         Where any promotion we have made is subject to any conditions contained in our Website or any other material, those conditions form part of these Terms.

 

2.           REQUEST FOR GOODS AND SERVICES

2.1         You may request Goods or Services by selecting a particular Service on our Website, in person at our Store, or via telephone (hereafter referred to as an Order) in the form provided by us to you or in accordance with the procedures required by us from time to time. Each Order:

(a)          Is subject to these Terms except as is otherwise specified by us; and

(b)          At a minimum, must specify all of the matters required by us in respect of the Order, including completion or provision of any particular Client information or online order form we may provide from time to time.

2.2         All Orders submitted by you will be subject to acceptance in writing by us (at our absolute discretion) and will not become binding on us until such acceptance.  Any variation, waiver or cancellation of any order or any amendment to terms or conditions of the order made by you once an order has been made shall be of no effect unless accepted in writing by us.

2.3         You acknowledge and agree that we are not under any duty to accept Orders from you and may cancel any arrangement with you at any time.

2.4         You acknowledge and agree that we have the right to alter and vary our Services without notice.

2.5         Once submitted under clause 2.1, you may not revoke an order for 2 Business Days and once accepted under clause 2.2, you may not revoke or cancel an order without our prior written consent which may be withheld at our sole discretion.

2.6         Except as set out in clause 2.1(a) if there are any terms or conditions inserted or imposed in an order by you that are inconsistent with or in addition to these Terms they are hereby rejected by us and will be deemed null and of no effect, even if we accept or acknowledge such Order itself.

2.7         The Services and Goods are designed for use by persons over the age of 18. We may at our sole and absolute discretion provide Services and Goods to persons under the age of 18 (a Minor) where a parent or legal guardian agrees to these Terms on behalf of the Minor and is present at all times that the Services are provided. If we are not satisfied that a parent or legal guardian has agreed to these Terms on behalf of a Minor, we may choose not to provide the Services and Goods to you or if we have commenced providing the Services to you, to suspend the same and/or terminate these Terms with you. Where you are under the age of 16, we will, without limiting the other provisions of this clause, only provide Services to you in the event your parent or legal guardian attends any appointment at which those Services are to be performed.

2.8         Before you request to engage in our Services, you should ensure that you have consulted with a relevant medical practitioner and are aware of, and properly understand, all of the risks involved, and that those risks will include any particular risks associated with any health condition or pre-existing disability from which you suffer. You acknowledge and agree that we are not qualified to provide medical advice in relation to, and the use of, the Services and Goods.

2.9         By engaging in our Services, you:

(a)          confirm that you have been given an adequate opportunity to consult with a relevant medical practitioner, and that you have either consulted with, or waived your right to consult your relevant medical practitioner; and­

(b)          acknowledge, agree and understand that you engage or participate voluntarily and at your own risk in full knowledge of the risks generally.

2.10      If there is any change in the condition of your health while our Goods and Services are being provided to you, you must consult with a relevant medical practitioner, or waive you right to consult your relevant medical practitioner, prior to continuing to use our Goods and Services.

2.11      We reserve the right to close the Store during holiday periods or for the purposes of renovation.

 

3.           PRICE AND PAYMENT

3.1         All Payments in relation to our Goods and Services must be made at the time of booking.

3.2         The price payable by you for the Services shall be the price posted on our Website and agreed to by you at the time the Order is made.  The onus is on you to confirm prices prior to requesting Services. Prices may change over time to reflect market standards.

3.3         The price payable does not include any errors or omissions and you agree that if we have published an incorrect or erroneous price for a Service, we may either agree with you a corrected price or may cancel the Service to which the error or omission related.

3.4         You are required to pay the price of the Services or in the currency stipulated by us.

3.5         We will deliver to you an invoice for Services provided.

3.6         Unless otherwise stipulated in an Order that complies with clause 2.1, payment of each invoice shall be made by you:

(a)          Into such bank account that we notify you of; and

(b)          Free of any deduction or withholding, and with no right of set-off for on or account of any taxes or other duties, currency controls or any other matter.

3.7         Unless otherwise stipulated in respect of a particular Service, that payment will be made in advance in one lump sum.

3.8         Your payment obligation to us in accordance with these Terms is unconditional, and the your failure to pay any invoice on the due date shall be an automatic default of these payment terms and we shall not be required to give you any prior notice of default.

3.9         Unless otherwise set out on its invoice, our prices are quoted inclusive of taxes, duties and other imposts which, if chargeable, are payable by you whether they are imposed or brought into force before or after acceptance of your Order.  Unless otherwise stated, our prices are inclusive of GST (as set out in clause 4 of these Terms) and any such amount that may be due is payable on the same date as payment for Services.

3.10      Without prejudice to any other remedies which we might have:

(a)          In the event of failure by you to pay for Goods or Services in accordance with these Terms; or

(b)          If you otherwise fail to otherwise comply with these Terms;

We shall be entitled to cease supply of any future Services to you and suspend Services.

3.11      In accepting any payments from you, we will not be bound by any conditions or qualifications or other terms which you may have attached to those payments.

3.12      Credit, as an alternative form of payment, might be available on request. In order to assess a credit application, we reserve the right to request that you complete a Credit Application Form.

3.13      The Intro Offer expires after 30 days from the date of purchase.

3.14      The Single Session and Concession Cards expire 90 days from the date of purchase.

3.15      If you want to share a sauna with a friend, the +1 Bring a Friend must be purchased at the centre and used on the day of purchase.

3.16      All Gift Vouchers are valid for 6 months from the date of purchase.

3.17      All Concession Cards and Gift Vouchers are not transferable. We accept no responsibility if a Concession Card or Gift Voucher is lost, stolen, destroyed, or used without your permission.

3.18      Refunds will only be provided when required in accordance with Consumer Guarantees Act 1993.

 

4.           GST

4.1         Our prices referred to in these Terms and in any quotation which may have formed the basis of an order are inclusive of GST (unless expressly stated otherwise). You shall pay GST on the Goods or Services the subject of these Terms, as invoiced by us on the payment terms on that invoice and, if rendered on the same date or on the same invoice as the Goods supplied, at the same time as payment for the Goods to which the GST relates.

 

5.           CANCELLATION, REFUNDS AND RESCHEDULING 

5.1         We may cancel any order accepted by us, or cease or refuse performance of any Services, if you:

(a)          Fail to make any payment as provided in these Terms or under the payment terms set forth in any Service description or invoice;

(b)          Are, at any appointment,  under the influence of alcohol or drugs, or otherwise behave in a manner which is deemed by us to be abusive or harassing to other clients and/or our staff;

(c)          Fail, at any appointment, to comply with any provisions of our Covid-19 Policy, the current version of which is located on or Website; or

(d)          We do not believe you are medically fit for treatment; or

(e)          Present, for an appointment, a Concession Card, Gift Voucher or Membership that is not under your name.

(f)           Otherwise fail to comply with these Terms or any other agreement with us.

5.2         Failure to reschedule or cancel an appointment at with at least 12 hours-notice will result in no refund or repayment and you will be charged for the full cost of the appointment. In the case of prepaid treatments, you will be charged the full cost of treatment.

5.3         All appointments that are rescheduled or cancelled with 12 hours-notice will be credited to your Chill Wellness Fresha account. All appointments can be rescheduled or cancelled using the Fresha App or account.

5.4         Arriving late to appointment may result in your treatment being cut short in order to maintain the work timetable.

5.5         We do not offer refunds, transfers, extensions, or suspension on Memberships, Gift Vouchers or Concession Cards for any act or omission by the customer i.e. change of mind, injury, illness, no-show, late cancellation or any other reasons

5.6         Any cancellation, refusal or delay made by us in accordance with clause 5.1 does not constitute a termination of any agreement with you (unless we advise you) and does not constitute a breach of any such agreement or these Terms by us, and any invoice payable by you is still due and any payment made by you will not be refunded.

 

6.           DELIVERY OF GOODS

6.1         Delivery of Goods is deemed to be made when the Goods arrive at your nominated address or have been collected by you from us or our agent (as the case may be).

6.2         On delivery of any Goods supplied for resale:

(a)          The Goods are at your sole risk; and

(b)          Insurance is your responsibility.

6.3         You will cover the cost of delivery from the point of dispatch of the Goods by us and the risk of such delivery shall be borne entirely by you unless otherwise agreed by us and you in accordance with these Terms.

6.4         Any quotations of delivery times agreed by us are made in good faith but are estimates and not commitments and no delay in delivery will entitle you to refuse to accept delivery or cancel its order or otherwise entitle you to any damages whatsoever.

 

7.           RISK, DAMAGE AND LOSS IN TRANSIT (Goods)

7.1         Risk (including, without limitation, insurance responsibility) of any loss, damage or deterioration of or to the Goods shall pass to you on delivery of Goods to your nominated address.

7.2         Direct sales of Goods for use by you as a consumer shall be dealt with in accordance with Consumer Guarantees Act 1993.  All other Claims (such as for Goods supplied in trade for resale) shall be dealt with in accordance with clauses 6.1 – 6.4.

7.3         In respect of Claims made for damage in respect of defective Goods or Goods lost or damaged in transit supplied for resale, Claims must be made against us in the following manner:

(a)          Prior to accepting the Goods and acknowledging delivery you must ensure that the complete consignment as per the invoice or delivery note accompanying the Goods has been received;

(b)          In the case of damage the delivery note must be endorsed by you setting out in full the reasons for non-acceptance of the Goods;

(c)          In any case where the defect or damage is not reasonably able to be ascertained upon delivery, you must notify us within 5 Business Days of delivery of the full particulars of the defect and you must return the Goods (if requested by us) at our cost.

7.4         In the event we accept such a claim it may, at our option, credit your account or pay an amount equivalent to the established claim in full settlement of the dispute.

7.5         In the event we do not accept such a claim, the parties shall resolve any dispute in accordance with clause 12 of these Terms.

7.6         Our liability in respect of failure to deliver due to loss in transit or damage in transit where risk has not passed to you shall be limited to paying requisite insurance proceeds to you or assigning any such claim to you and in no event whatsoever shall any claim for defect in Goods exceed the purchase price of the such defective Goods supplied.

7.7         Risk shall pass back from you to us only if we repossess the Goods.

 

8.           RETENTION OF TITLE AND INTELLECTUAL PROPERTY RIGHTS

8.1         Notwithstanding any other provision of these Terms, if title to Goods is intended to pass to you, title in the Goods does not pass from us until we have received full payment in cleared funds for the Goods (together with an amount for GST, any accrued interest and any other amounts due in respect of the Goods); or

8.2         Until title passes from us:

(a)          Ownership of the Goods remains with us;

(b)          You holds the Goods as bailee for us; and

(c)          You must store the Goods separately from any other Goods and not commingle, admix the Goods with other Goods or otherwise add to or alter the Goods in any way.

8.3         We retain all Intellectual Property rights relating to the Goods and Services provided to you.

 

9.           YOUR COVENANTS AND WARRANTIES

9.1         You agree that where you are utilising the Services and Goods you shall:

(a)          Other than in accordance with law it shall not make any statement or undertake or perform any act or omission which brings or is reasonably likely to bring us or any of our Personnel into disrepute, and without limitation, where you are not an individual, you shall not cause or allow any of its Personnel to engage in any activity, conduct or otherwise that shall or may prejudicially affect our reputation or goodwill or our business;

(b)          Promptly submit to us complaints relating to Services together with all available evidence and other information relating to those complaints;

(c)          Not utilise Intellectual Property owned by or in which we have rights for any other purpose than expressly or impliedly authorised by us or utilise Goods or Services in which our Intellectual Property resides in any fashion not agreed to by us.

(d)          Understand that the Services, in which you will participate, are inherently dangerous and may cause serious or grievous injuries, including bodily injury, damage to personal property and/or death. You and your assigns, administrators, and executors, waive all Claims of damage, injuries and death sustained to you or your property, that you may have against us to such activities, including Claims in tort, contract, equity or otherwise.

(e)          Acknowledge, agree and represent that you understand the nature of the Services and Goods, and you represent that you are in good health and in proper physical condition to participate in, and use, the same.

(f)           Not publish any photos, or make any comments on social media, of or relating to any Goods or Services without our prior written consent.

 

10.         LIMITATION OF WARRANTY/LIABILITY

10.1      Where you acquire the Goods and Services for your own business use all guarantees and remedies in the Consumer Guarantees Act 1993 are excluded.

10.2      You acknowledge that you must rely on your own, or a relevant medical practitioner’s, judgment as to the nature, quality and condition of the Services and Goods supplied by us and as to their sufficiency for any use or purpose and you acknowledge that we are under no duty to ascertain the suitability of the Services and Goods for any purpose whatsoever and that no such representation has been made us.

10.3      You agree that the conditions, warranties and guarantees set out in the Contract and Commercial Law Act 2017 or implied by the common law will not apply and are expressly excluded from these Terms.

10.4      Except as may be provided for under the Consumer Guarantees Act 1993 (where you obtain Goods or Services for personal use) or any other law that cannot be excluded, where we provide any express written warranty in these Terms or is otherwise provided to you in respect of the Services, we provide no other warranty, expressed or implied, including any implied warranty of merchantability or fitness for purpose or otherwise and any warranties expressed or implied by law or statute, in respect of Goods or Services whether in respect of quality, fitness for intended purposes or otherwise, and all such warranties are excluded to the fullest extent (but only to the extent) that applicable law permits exclusion.

10.5      Subject to clause 7.2 of these Terms, the parties acknowledge and agree that in no event will we or our Personnel have any liability to you arising out of or connection with these Terms or the outcomes, use or performance of Services or providing of Goods.

10.6      The parties agree that we shall not in any case whatsoever be liable for:

(a)          Any special, incidental, indirect, punitive or consequential Damages; loss of profit, revenue, goodwill, use or the costs of procuring substitute Goods or Services;

(b)          Damages, in the aggregate, exceeding the value of the payments actually received by us from you for the Goods or Services; or

(c)          Damages in respect of any claim made:

(i)         more than six months from the date you become aware of the circumstances leading to that claim; or

(ii)        more than 12 months after the relevant cause of action arise.

10.7      In accordance with section 5D of the Fair Trading Act 1986, where you are a business and the Services are provided in trade, you agree that you do not rely on any representations or other conduct by us either before or during the provision of the Services and that accordingly sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 will not apply.

10.8      If contrary to the disclaimer of liability contained in these Terms we are deemed liable to you, our maximum aggregate liability to you arising out of any claim for loss or damages however arising shall not exceed the lesser of:

(a)          the price specified in the invoice; or

(b)          $1,000.00.

 

11.         INDEMNITY

11.1      You indemnify us from and against all liabilities, expenses, losses, damages and costs (including legal costs on a full indemnity basis whether incurred by or awarded against a party) including those associated with any third party claim, and whether arising under contract, tort (including negligence) or otherwise shall MMA or its directors, principals, employees, contractors or agents sustains or incurs (directly or indirectly) arising out of or resulting from:

(a)          Any breach of these Terms by you;

(b)          Any contravention of applicable laws or regulations by you;

(c)          Any claim by any third party arising from any act or omission by you in connection with these Terms (whether negligent or not), including and misrepresentations, warranty or agreement made by you with respect of us or any of our Personnel;

(d)          Without limiting clause (b), any negligent, wilful, reckless or unlawful act or omission of, or any intentional misconduct by you in connection with these Terms; or

(e)          Any claim by you, to the extent that such claim is beyond the scope of our liability to you under these Terms.

 

12.         DISPUTE RESOLUTION

12.1      Either party may give the other party notice of any dispute arising in respect of, or in connection with, these Terms (Dispute).

12.2      In the event of a notice being given pursuant to clause 12.1 above, then the parties must:

(a)          Meet online by a method determined by us to discuss the Dispute and make a genuine effort to resolve the Dispute;

(b)          If no resolution of the Dispute has occurred within 10 Business Days from the date of the giving of the notice in accordance with clause 11.1, then the parties shall be free to pursue their remedies as they see fit.

12.3      Nothing in this clause shall prevent a party making application to a Court for an injunction or other urgent interlocutory relief.

12.4      Neither party shall make any public comment, including posts on social media, unless and until such time as the provisions of this clause have been complied with.

 

13.         PRIVACY AND PERSONAL INFORMATION

13.1      You acknowledge that you have read, received, agreed to and understood our Privacy Act policy and information on our Website.

13.2      From time to time we would like to send you information about Goods, Services or other topical informational, promotional or marketing material that relate to us or our affiliates and third parties that we consider that you may be interested in. You consent to us forwarding such information to you by email.  Should you wish to cease receiving this information you may unsubscribe from it at any time using the process set out in the emails that you will receive in respect of this information.

 

14.         FORCE MAJEURE

14.1      Where a Specified Event occurs which either prevents us commencing, continuing with, or completing any obligation under these Terms or makes it impracticable for us to do so, then we may advise you of the Specified Event in writing and either:

(a)          Cancel these Terms in their entirety; or

(b)          Suspend or defer performance of our obligations, including the performance  of any Services, for the Specified Period.

14.2      In the event of cancellation or suspension, neither party shall have the right of any claim against the other, provided that you must still pay:

(a)          Any invoice issued by us for any Services performed or Goods provided prior to the start of the Specified Period (or which are delivered to you in the Specified Period regardless); and

(b)          Any invoice for Goods or Services actually performed by us during the Specified Period.

14.3      In this clause the following terms have the meanings given to them below:

(a)          “Covid-19 Period” means any period in which any Services or obligation could not be performed because of any regulation or order made under the COVID-19 Public Health Response Act 2020, or under any similar or superseding law, in any jurisdiction.

(b)          “Specified Event” means any act of war; acts of Government; monetary or economic developments; epidemic, pandemic or other medical emergency; natural disaster; accident; fire; lockout, strike or other labour dispute; riot or civil commotion; or any other factor or factors beyond our reasonable control (whether similar or not); and includes a Covid-19 Period.

(c)          “Specified Period” means the period commencing on the date notice is given by us under clause 14.1, and ending on the later of either the date the Specified Event ends, or the date by which we, acting reasonably, are practically and logistically able to re-commence performing out obligations under these Terms.

 

15.         GENERAL

15.1      To be effective, any waiver of any or all of the terms and conditions in any agreement you have with us must be in writing.

15.2      You may not assign all or any of its rights or obligations under these Terms.

15.3      We are not bound, unless otherwise stated in these Terms, by any error or omission on any price information, Website material, invoice, order form or other document or statement issued by us.

15.4      Where we have rights and remedies at law or otherwise in addition to the rights set out in these Terms, those rights and remedies will continue to apply.

15.5      Failure by us to enforce any of the terms and conditions shall not be deemed to be a waiver of any of the rights or obligations we have under these Terms.

15.6      If any of these Terms or part thereof are held to be invalid, illegal, unenforceable or void for any reason or reasons, all of the remaining Terms (or part thereof) shall remain in full force and effect.

15.7      These Terms are governed by the law of New Zealand and each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New Zealand.

 

16.         DEFINITIONS AND INTERPRETATION

In interpreting these Terms:

Business Day means any day not being a Saturday or Sunday or statutory holiday in Auckland, New Zealand.

Concession Cards, Gift Vouchers, Intro Offer, and Single Sessions have the meanings given to them on our Website and any other material.

Damages means all liabilities, expenses, losses, damages and costs (including legal costs on a full indemnity basis) whether incurred by or awarded against a party) including those associated with any third party claim, and whether arising under contract, tort (including negligence) or otherwise.

Goods means all products supplied by us to you for value.

GST means Goods and Services Tax payable in accordance with the Goods and Services Tax Act 1986.

Intellectual Property includes (whether in visible, electronic or any other form) all brands, contracts, training material, know-how, techniques, nutritional or natural health knowledge techniques and literature, goodwill, logos, formulae, techniques, know-how, specifications, designs, drawings, copyright, manufacturing processes, patents and trademarks (if any) whether registered or not, software (in source and object code), business or training materials and strategies, confidential business information including market and marketing strategies, business contracts and intellectual property relating to our business of, or our Goods or Services.

Personnel means our employees, agents, contractors, shareholders, principals, officers or directors.

Services includes all support or other services provided by us to you.

Store means the Chill Wellness Studio at 2/210-218 Victoria St West, Auckland 1010

Website means the website operated by us at https://chillwellness.co.nz/.

We, Us and Our means Chill Wellness Limited.


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