Terms and Conditions

1.1 ALL ORDERS PLACED BY OR ON BEHALF OF THE CUSTOMER FOR THE SUPPLY OF GOODS SHALL BE DEEMED ACCEPTANCE OF THESE TERMS AND CONDITIONS. 

1.2 NO ORDER ACCEPTED BY SPORTIVE CAN BE CANCELLED, VARIED OR SUSPENDED WITHOUT SPORTIVE’S PRIOR WRITTEN AGREEMENT. 

6..1 Title in any Goods supplied by Sportive passes to the Customer only when the Customer has made payment in full for all Goods provided by Sportive and of all other sums due to Sportive by the Customer on any account whatsoever.

6.2 The Customer hereby grants Sportive a security interest pursuant to the PPSA over the Goods and all of the Customer’s present and after-acquired personal property as collateral for all monies owing by the Customer to Sportive for the supply of Goods and any other monies that become payable under these Terms. 

6.3 The Customer shall without cost to Sportive store any Goods supplied by Sportive for which full payment has not been made separately from other goods in the possession of the Customer and shall clearly distinguish and identify such goods as Sportive’s goods. 

6.4 The Customer agrees that Sportive’s rights in respect of the Goods (and proceeds of the same) continue in respect of any goods with which the Goods supplied become part of or are co-mingled with and extend further to include any moneys wherever held which are the proceeds of any sale of the Goods supplied prior to full payment being made in respect of the same by the Customer to Sportive. 

6.5 Where the Customer has received payment for the Goods but has not yet paid Sportive for the same, the Customer shall receive and hold all such proceeds of the sale in a separate account as a trustee for Sportive.   

6.6 The Customer shall insure and keep insured the Goods to the full price payable against all risks until payment in full for the Goods has been received by Sportive. 

6.7 The foregoing provisions shall not entitle the Customer to return the Goods without demand from Sportive. 

6.8 The Customer gives irrevocable authority to Sportive to enter any premises occupied by the Customer or on which Goods are situated at any reasonable time after default by the Customer or before default if Sportive believes a default is likely and to remove and repossess any Goods and any other property to which Goods are attached or in which Goods are incorporated.  Sportive shall not be liable for any costs, damages, expenses or losses incurred by the Customer or any third party as a result of this action, nor liable in contract or in tort or otherwise in any way whatsoever unless by statute such liability cannot be excluded.  Sportive may either resell any repossessed Goods and credit the Customer’s account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs) or may retain any such repossessed Goods and credit the Customer’s account with the invoice value thereof less such sum as Sportive reasonably determines on account of wear and tear, depreciation, obsolescence, loss of profit and costs. 

6.9 The Customer undertakes that it shall not, except with the prior written agreement of Sportive, charge, mortgage, borrow against or otherwise encumber any of the Goods in favour of any third party until the Customer has made payment in full to Sportive for the said Goods. 

6.10 The following shall constitute defaults by the Customer: 

• 6.10.1 Non payment of any sum by the due date. 
• 6.10.2 The Customer intimates that it will not pay any sum by the due date. 
• 6.10.3 Any Goods are seized by any other creditor of the Customer or any other 
• creditor intimates that it intends to seize Goods. 
• 6.10.4 Any Goods in the possession of the Customer are materially damaged while 
• any sum due from the Customer to Sportive remains unpaid. 
• 6.10.5 The Customer is bankrupted or put into liquidation or a receiver is appointed to any of the Customer’s assets or landlord distains against any of the Customer’s assets. 
• 6.10.6 A Court judgment is entered against the Customer and remains unsatisfied for seven (7) days. 
• 6.10.7 Any material adverse change in the financial position of the Customer. 

6.11 The Customer hereby waives its rights contained in Sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA. 

6.12 Sportive may in its discretion allocate any payment received from the Custom towards any invoice that Sportive determines and may do so at the time of receipt or at any time afterwards and on default by the Customer may reallocate any payments previously received and allocated.  In the absence of any payment allocation by Sportive, payment shall be deemed to be allocated in such manner as preserves the maximum value of Sportive’s purchase money security interest in the Goods. 

7.1 The Customer acknowledges that:

• 7.1.1 The Goods are being purchased for business purposes and the guarantee contained in the Consumer Guarantees Act 1993 are excluded. 
•  
• 7.1.2 Specifications, descriptions, measurements and other data provided by Sportive in relation to the Goods are indicative only and the Goods may differ from the specification provided. 
• 7.1.3 The Customer relies upon its own judgment as to the nature, quality and condition of the Goods and the suitability of the Goods for any particular purpose.
•  
• 7.1.4 To the maximum extent permitted by law, any warranties or conditions 

7.2 Sportive shall not be liable for any loss or damage of any kind whatsoever including loss of profits and consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Goods provided by Sportive to the Customer. 

8.1 The Customer shall be deemed to have accepted the condition of the Goods and conformity of the Goods to order unless the Customer notifies Sportive within 10 days of delivery of the Goods to the Customer. 

8.2 Any Goods returned to Sportive must be returned within 10 days of delivery, freight paid, in original condition and in original packaging, and complete with packing slip and invoice number details.  Goods returned may incur a 15% handling charge. 

8.3 In the event of damage in transit the Customer is required to send to Sportive a written request for replacement together with the delivery document and evidence that this was endorsed at the time of receipt of Goods that the Goods or any part thereof were damaged prior to unloading. 

9.1 The Customer shall not sell the Goods via the internet without Sportive’s prior written consent.

9.2 Failure by Sportive to enforce any of the terms and conditions contained in these Terms shall not be deemed to be a waiver of any of the rights or obligations Sportive has under these Terms.

9.3 If any provisions of these Terms shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

9.4 The Customer shall not assign all or any part of its rights or obligations under these Terms without the prior written consent of Sportive.

9.5 Where these Terms are at variance with the order or instructions from the Customer these terms and conditions of trade shall prevail unless Sportive accepts such variations in writing.

© Copyright Sportive NZ Limited September 2005