“Agreement” means this Agreement.
“Customer” means the party purchasing Products or Services from Grow Yours.
“Grow Yours” refers to Grow Yours, a division of Mode Living Ltd.
“Products” means any Products, including seeds, which Grow Yours sells or provides to the Customer from time to time.
“Services” means any Services, including shipping, which Grow Yours sells or provides to the Customer from time to time.
“Price List” means the list prices for Products and Services offered by Grow Yours, and updated from time to time.
2. ACCEPTANCE OF AGREEMENT
a) The Customer agrees that by purchasing any Products or Services from Grow Yours, it thereby enters into this Agreement with Grow Yours and agree to be bound by the terms contained herein.
b) Where an order has been placed with Grow Yours for Products or Services, it will be deemed to be acceptance by the Customer of these Terms and Conditions of Trade.
c) If these Terms and Conditions of sale are not acceptable the purchaser should immediately return the products unopened for credit.
3. APPLICABILITY OF THE AGREEMENT
a) These terms shall constitute a full and complete statement of the Agreement between Grow Yours and the Customer and no variations or modifications of any term of the Agreement shall be binding unless agreed to in writing by Grow Yours.
b) The terms and conditions set out below shall apply to all dealings between the parties, including all transactions for the supply of Products and provision of Services, unless otherwise agreed between Grow Yours and the Customer in writing.
c) Grow Yours may vary or amend these terms at any time. Any variations so made will apply to all orders placed by the customer after the time that amendments have been made.
4. SUPPLY OF PRODUCTS AND SERVICES
a) The Customer may order from Grow Yours from time to time such quantities of Products and Services it requires, with orders to be in such format (whether written or otherwise) as Grow Yours may require.
b) Whilst Grow Yours will use its best endeavours to ensure that it is able to provide Products and Services to the Customer when required, it does not warrant or guarantee that it will be able to do so and will not be responsible for any losses alleged to have been suffered by the Customer as a result of failure to supply or delay in supplying Products and Services, regardless of the reason for the failure to supply. In this regard the customer acknowledges that availability of seed is unpredictable and, irrespective of whether seed or other Products are marketed by Grow Yours, no representation of ability to supply is given by Grow Yours to the Customer.
c) Grow Yours retains the absolute discretion at all time to refuse to accept any order made by the Customer for Products or Services.
d) Any period or date for delivery of Product or Services stated by or on behalf of Grow Yours shall be regarded by the Customer as an estimate only and not a contractual commitment or representation which may be relied upon.
e) The Customer acknowledges that Grow Yours may at its discretion engage agents or subcontractors in the provision of Products and Services to the Customer.
5. PRICING AND PAYMENTS
a) All prices are in NZ Dollars, inclusive of GST, and exclusive of freight or handling charges.
b) The Customer shall be charged for the Products and Services as set out in Grow Yours’ Price List as it applies at the time of the Customer placing an order for Products and or Services. If a Product or Service does not appear on the Price List, then Grow Yours shall be entitled to charge a reasonable amount for that Product or Service.
c) The Customer acknowledges that the Products and the prices in the Price List may be modified by Grow Yours from time to time without notice throughout the currency of this Agreement, and it shall be the responsibility of the Customer to check with Grow Yours as to the availability and price of any particular Product immediately prior to placing any order.
d) Payment is required in full for all orders in advance of supply of Products and Services, unless otherwise agreed to in writing by Grow Yours.
e) Any quotation provided by Grow Yours to the Customer shall, unless otherwise stated in the quotation, be valid only for seven (7) days from the time it was made and may be withdrawn at any time by Grow Yours within that period, and are subject to sufficient stock being available for sale at the time of ordering.
a) Grow Yours accepts no liability for any default or delays in the delivery of the order or any part of it.
b) The risk in the Products and Services and all insurance responsibility for theft, fire or damage of any other kind shall pass to the Customer immediately upon delivery of the Products or Services to the Customer, regardless of whether there is any further work to be completed by Grow Yours in regard to those Products or Services.
c) The Products and Services shall be deemed to be delivered to the Customer at the point of loading onto the shipping carrier, or being made available for uplift by the Customer, whether or not the Customer takes delivery at that time.
7. WARRANTIES AND LIABILITIES
a) All cultural information, descriptions, and recommendations are provided as a guide only. Local environmental conditions, different cultural practices, moisture levels, soil types, day length, and temperatures during the growing period may influence varietal performance.
b) Under no circumstances will Grow Yours or its representatives accept liability, whether express or implied as to the accuracy of the information provided, or for deviating results in the cultivated product. The Customer shall itself determine whether the items are suitable for the intended cultivation and whether they can be used under local circumstances.
c) The Consumer Guarantees Act 1993 shall not apply where a Customer is (or holds themselves out as) acquiring the Products and Services for the purposes of a business.
d) Except as provided by statute, Grow Yours shall not be liable for any loss or damage suffered by the Customer or any other person whether or not the loss or damage arises either directly or indirectly from the Products or Services provided.
e) Grow Yours gives no further warranty, expressed or implied, and will not be held liable for any direct, indirect or consequential loss arising from the use of any Products or Services supplied by Grow Yours, any failings in the performance of, or any defect in, Product or Services supplied by Grow Yours, or from any acts or omissions of Grow Yours pursuant to these terms and conditions.
f) The liability of Grow Yours as the vendor of the Product or Service whether in contract (or pursuant to any cancellation of any contract) or in tort, for any loss, damage or injury arising directly or indirectly from any misdescription, defect or non-compliance of the Product or Service supplied (whether such liability arises from any express term of any contract or is implied by law), or for any failure to achieve the result expected or for any representation made, or for negligence, is limited to the resupply of such Product or Service, or refunding the purchase price of those Products or Services, at Grow Yours’ discretion.
g) The Customer shall not be entitled to make any claim for defective Products or Services unless the claim is notified to Grow Yours within thirty (30) days of the discovery of such defect, and Grow Yours is given a reasonable opportunity to investigate the claim. In any event, claims for defective Products or Services must be notified to Grow Yours within three hundred and sixty five (365) days of purchase.
h) Grow Yours aims to display accurate photos of each variety offered, however from time to time the photos displayed may be generic from stock imagery, or only an indication of the ‘type’ and not variety specific.
8. RETENTION OF TITLE
a) Until Grow Yours receives full payment (in the form of clear funds) for any Products or Services supplied by it to the Customer together with any other amounts owing by the Customer to Grow Yours, the title and property in all of the Products or Services yet to be paid for remains vested in Grow Yours and does not pass to the Customer.
a) Grow Yours reserves the right in its absolute discretion to accept a return of unwanted Products and to credit the Customer with the cost thereof, in the event of acceptance of such a return.
b) Any request for the return of Products purchased by a Customer must be made to Grow Yours within thirty (30) days of delivery of the Products.
b) Returned Products will only be accepted by Grow Yours if the Product is unopened and in the same condition as when supplied, and the invoice number and the date of order is supplied.
c) The Customer shall pay all costs in relation to return of the Products.
d) Upon acceptance of returned Products, Grow Yours will credit the Customer with the cost thereof.
10. FORCE MAJEURE
Grow Yours shall not be liable in any manner whatsoever to the extent that it has been prevented from performing any obligation under this Agreement by reason of matters beyond its control, including without limitation the inability to source Products, lack of availability for whatever reason of staff or contractors, other nonperformance caused by telecommunications, utility, failures, or equipment failures, fires or acts of nature, or any other event over which the respective party has no reasonable control.
a) The Customer hereby authorises Grow Yours to furnish to any third party details of the Customer (for example, name and delivery address to shipping carrier) as a result of the Customer’s order being actioned by Grow Yours.
b) The Customer has a right of access to, and may request correction of, personal information held by Grow Yours about the Customer.
12. GOVERNING LAW
a) This Agreement shall be governed by the laws of New Zealand.
b) All proceedings within the jurisdiction of the District Court shall be filed in the Auckland District Court, New Zealand.
13. BREACH BY CUSTOMER
The Customer hereby indemnifies Grow Yours in respect of any costs incurred by Grow Yours (including legal costs on a solicitor/client basis) as a result of any breach of this Agreement by the Customer, including any breach of terms of payment for Products or Services. Such costs include but are not limited to the costs of any demands made of the Customer to remedy any breach, and any legal proceedings to recover unpaid money.
14. AGREEMENT TERMINATION
a) The termination of this Agreement for whatever reason shall not in any way affect any rights or responsibilities accruing prior to the termination taking effect and Grow Yours’ rights in the event of default (including the ongoing accrual of interest and the right to indemnify for costs) shall continue beyond termination.
b) If any clause or part of a clause of these Terms and Conditions is held to be invalid or unenforceable for whatever reason then to the extent not inconsistent with that invalid clause the remaining provisions shall remain in full force and effect.
15. RELATIONSHIP OF PARTIES
Nothing in this Agreement shall give rise to a partnership or relationship of employment between Grow Yours and the Customer.
Grow Yours shall not be deemed to have waived any of its rights under these Terms because it has not enforced its rights. Any failure or delay by Grow Yours to exercise a power or right does not operate as a waiver of that power or right. The exercise of a power or right does not preclude either its exercise in the future of the exercise of any other power or right. A waiver is not effective unless it is in writing.
a) The Customer must not assign any of its rights or obligations under these Terms without the written consent of Grow Yours.
b) Grow Yours is given and may exercise all rights referred to herein entirely without prejudice to any other rights that may be available to Grow Yours.