METABOLOC MINDSET THERAPY LIMITED TRADING AS METABOLIC MINDSET ACADEMY (“MMA”)
TRAINING, COACHING, CONSULTANCY SERVICES AND SUPPLY OF GOODS TERMS AND CONDIITONS
1. NATURE AND SCOPE OF TERMS OF TRADE
1.1 MMA provides training services in respect of nutrition, weight loss and other natural health related matters including consultation, coaching and assisting Clients in respect of weight loss as well as training people to provide coaching and weight loss consultation services under the MMA brand and in accordance with and use of Intellectual Property, support, training materials and techniques developed, owned or controlled by MMA.
1.2 MMA may from time to time provide Goods to support the services provided in accordance with consultation services or provide Goods in trade for resale or use in a Client’s business.
1.3 These terms of trade (“Terms”) form a contract that applies between MMA and the Client in respect of any supply of Goods or Services provided to the Client by MMA and covers the provision of any credit MMA may provide by not charging the full cost of Goods or Services to be supplied in one lump sum in advance.
1.4 The Client acknowledges that any request to MMA to provide Goods or Services constitutes an acknowledgment by the Client that the contract between the Client and MMA shall be governed by these Terms.
1.5 From time to time, MMA may issue updated or amended terms of trade which shall be deemed to be accepted 10 Business Days following MMA sending such amended terms to the Client and any new order of Services following that date shall be governed by the amended or updated terms.
1.6 MMA and the Client 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 MMA and the Client.
1.7 The Client acknowledges that all orders of Goods on terms that provide the Client shall obtain title in such Goods once payment is made by the Client are a request by it for the provision of credit from MMA.
2. REQUEST FOR GOODS AND SERVICES
2.1 The Client will request Goods or Services by selecting a particular Service on MMA’s Web Portal (hereafter referred to as an “order”) in the form provided by MMA to the Client on the Web Portal or in accordance with the procedures required by MMA from time to time. Each order:
(a) Is subject to these Terms except as is otherwise specified by MMA; and
(b) At a minimum, must specify all of the matters required by MMA in respect of the order, including completion or provision of any particular Client information or online order form MMA may provide from time to time.
2.2 All orders submitted by the Client will be subject to acceptance in writing by MMA (in its absolute discretion) and will not become binding on MMA until such acceptance. Any variation, waiver or cancellation of any order or any amendment to terms or conditions of the order made by the Client once an order has been made shall be of no effect unless accepted in writing by MMA.
2.3 The Client acknowledges and agrees that MMA is not under any duty to accept orders from the Client and may cancel any arrangement with the Client at any time.
2.4 Once submitted under clause 2.1, the Client may not revoke an order for 5 Business Days and once accepted under clause 2.2, the Client may not revoke or cancel an order without MMA’s prior written consent which may be withheld at MMA’s sole discretion.
2.5 Except as set out in clause 2.1(a) if there are any terms or conditions inserted or imposed in an order by the Client that are inconsistent with or in addition to these Terms they are hereby rejected by MMA and will be deemed null and of no effect, even if MMA accepts or acknowledges such order itself.
2.6 MMA may cancel any order accepted by MMA, or refuse continuance of Services or work on Services under it, if the Client:
(a) Fails to make any payment as provided in these Terms or under the payment terms set forth in any Service description or invoice or fails to pay as may otherwise agreed by MMA and the Client;
(b) Fails to meet reasonable credit or financial requirements established by MMA, including any limitations on allowable credit; or
(c) Otherwise fails to comply with these Terms or any other agreement with MMA; or
(d) MMA has reasonable grounds to doubt the Client’s solvency or ability to pay and the Client does not make arrangements satisfactory to MMA to allow restoration of credit; and
Any such cancellation, refusal or delay by MMA does not constitute a termination of any agreement with the Client (unless MMA so advises the Client) and does not constitute a breach of any such agreement or these Terms by MMA.
3. PRICE AND PAYMENT
3.1 The price payable by the Client Services shall be the price posted on MMA’s web portal and agreed to by the Client at the time the order is made through the Web Portal. The onus is on the Client to confirm prices prior to requesting Services.
3.2 The price payable does not include any errors or omissions and the Client agrees that if MMA has published an incorrect or erroneous price for a Service, MMA may either agree with the Client a corrected price or may cancel the Service to which the error or omission related.
3.3 The Client is required to pay the price of the Services or in the currency stipulated by MMA which may be based on the country in which the Services are delivered or the country in which the Services are supplied.
3.4 MMA will deliver to the Client an invoice for Services provided which may provide for instalment payments.
3.5 Unless otherwise stipulated in an order that complies with clause 2.1, payment of each invoice/instalment shall be made by the Client in the same currency as the currency recorded on the invoice:
(a) Into such bank account as MMA notifies the Client;
(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;
(c) In advance of the month in which following the month on which the invoice was rendered by MMA;
(d) By way of direct debit if required by MMA; and,
3.6 Unless otherwise stipulated in respect of a particular Service:
(a) Where a single payment is required, that payment will be made in advance in one lump sum;
(b) Where Service fees are charged weekly or monthly by MMA:
(i) A deposit equal to the last weekly or monthly payment is payable in advance and will be credited towards the last week or month on which the Service is provided; and
(ii) All other payments (apart from the last week or month) are to be paid in advance of the week or month on which the Services will be provided.
3.7 If the Client fails to pay an amount due under these Terms in the case of Services:
(a) If an instalment is not paid within 7 Business days of an email demand for payment, MMA may suspend all Services to the Client;
(b) If services are suspended then MMA may agree to reinstate Services and will do so if payment is made within 7 Business days of suspension, but shall be entitled to charge an administration fee of US$80.00 in respect of restoring any suspended access to Services.
3.8 If the Client has been provided credit for the purchase of Goods:
(a) Interest on that amount from its due date until the date of payment at 10% per annum above the default interest rate charged by MMA’s bank; and
(b) All legal and other costs, charges and expenses incurred in connection with the recovery of all outstanding amounts including, without limitation, MMA’s own solicitor/client costs and costs of any debt collection agency employed by MMA;
(c) MMA’s right to require payment of interest and other costs under clause 3.6 does not affect any other rights or remedies it may have relating to any failure to pay an amount due under these Terms; and
3.9 Without limiting clauses 3.7 or 3.8, the Client’s payment obligation to MMA in accordance with these Terms is unconditional, and the Client’s failure to pay any invoice or any instalment of an invoice on the due date shall be an automatic default of these payment terms and MMA shall not be required to give the Client any prior notice of default.
3.10 Notwithstanding any other provision of these Terms, MMA reserves the right to change payment terms at any time prior to the provision of agreed Services (including, without limitation, requiring additional payment in advance).
3.11 Unless otherwise set out on its invoice, MMA’s prices are quoted inclusive of taxes, duties and other imposts which, if chargeable, are payable by the Client whether they are imposed or brought into force before or after acceptance of the Client’s order. Unless otherwise stated, MMA’s 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.
3.12 Without prejudice to any other remedies which MMA might have:
(a) In the event of failure by the Client to pay for Goods or Services in accordance with these Terms; or
(b) If the Client otherwise fails to otherwise comply with these Terms; or
(c) If MMA deems the Client’s credit to be unsatisfactory,
MMA shall be entitled to cease supply of any future Services to the Client and suspend Services. Upon such cancellation and without prejudice to any other remedies which MMA might have, any credit favour of the Client will cease and all payments outstanding will become immediately due and payable to MMA.
3.13 In accepting any payments from the Client, MMA will not be bound by any conditions or qualifications or other terms which the Client may have attached to those payments.
4.1 MMA’s 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).
5. DELIVERY OF GOODS
5.1 Delivery of Goods is deemed to be made when the Goods arrive at the Client’s stipulated address.
5.2 On delivery of any Goods supplied for resale:
(a) The Goods are at the Client’s sole risk; and
(b) Insurance is the Client’s responsibility
5.3 The Client will cover the cost of delivery from the point of dispatch of the Goods by MMA and the risk of such delivery shall be borne entirely by the Client unless otherwise agreed by MMA and the Client in accordance with these terms.
5.4 Any quotations of delivery times agreed by MMA are made in good faith but are estimates and not commitments and no delay in delivery will entitle the Client to refuse to accept delivery or cancel its order or otherwise entitle the Client to any damages whatsoever.
6. RISK, DAMAGE AND LOSS IN TRANSIT (Goods)
6.1 Risk (including, without limitation, insurance responsibility) of any loss, damage or deterioration of or to the Goods shall pass to the Client upon delivery of Goods to the Client.
6.2 Direct sales of Goods for use by 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 6.3 to 6.7.
6.3 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 MMA in the following manner:
(a) Prior to accepting the Goods and acknowledging delivery the Client 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 the Client 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, the Client must notify MMA within 7 days of delivery of the full particulars of the defect and the Client must return the Goods (if requested by MMA) at MMA’s cost.
6.4 In the event MMA accepts such a claim it may, at its option, credit the Client’s account or pay an amount equivalent to the established claim in full settlement of the dispute.
6.5 In the event MMA does not accept such a claim, the parties shall resolve any dispute in accordance with clause 12 of these terms.
6.6 The liability of MMA in respect of failure to deliver due to loss in transit or damage in transit where risk has not passed to the Client shall be limited to paying requisite insurance proceeds to the Client or assigning any such claim to the Client and in no event whatsoever shall any claim for defect in Goods exceed the purchase price of the such defective Goods supplied.
6.7 Risk shall pass back from the Client to MMA only if MMA repossesses the Goods.
7. RETENTION OF TITLE AND INTELLECTUAL PROPERTY RIGHTS
7.1 Notwithstanding any other provision of these Terms, if title to Goods is intended to pass to the Client, title in the Goods does not pass from MMA until:
(a) MMA has 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
(b) The Client’s earlier resale of those Goods under clause 7.3.
7.2 Until title passes from MMA:
(a) Ownership of the Goods remains with MMA;
(b) The Client holds the Goods as bailee for MMA; and
(c) The Client 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.
7.3 If Goods which have not been paid for in full (together with an amount for GST, any accrued interest and any other amounts due in respect of those Goods) (“MMA Goods”), are sold by the Client, the Client must:
(a) Hold from the proceeds of any sale of MMA Goods an amount equal to the payment due to MMA for those Goods in a separate identifiable account as the beneficial property of MMA; and
(b) Pay such amounts to MMA upon request.
7.4 MMA retains all Intellectual Property rights relating to the Goods and Services provided to the Client but allows use of those rights for the purpose of resale of Goods only.
7.5 Where goods are supplied to a Client for resale or for use in trade, if the Client fails to pay any amount of the Client’s total indebtedness to MMA under these Terms when it is due to MMA or is otherwise in breach of these Terms then MMA and/or any of MMA’s Personnel may, without notice and without prejudice to any of MMA’s other rights and remedies, recover and/or re-sell MMA Goods that have been delivered to the Client and the Client agrees MMA may enter upon the Client’s premises for that purpose.
8. SECURITY – PPSA
8.1 If Goods are provided for resale, the Client grants to MMA a specific security interest in the Goods and the proceeds of the Goods and the Client securing purchase money for or MMA’s ownership of the Goods. The Client will, if MMA requests, sign any documents (including any new agreements), provide all necessary information or do or allow anything else required by MMA to ensure that MMA’s security interest is a perfected security interest.
8.2 The Client will not enter into any security agreement that permits any other person to register any security interest in respect of the Goods or the proceeds.
8.3 If the Goods are for the Client’s business use or still held by the Client pending any onsale to its Clients, the Client agrees, to the extent part 9 of the PPSA applies, that it will have no rights under Part 9 (Enforcement) of the PPSA. For example, but without limitation:
(a) The Client will have no rights under sections 114(1)(a) (to receive notice of sale), section 117(1)(c) (relating to distribution of surplus), and section 133 (reinstating the agreement);
(b) The Client waives its rights under section 116 (to receive statement of account), section 119 (to recover surplus) and sections 120(2) and 121 (to receive notice of any proposal to retain the Goods and object to any proposal).
8.4 The Client waives its right under the PPSA to receive a copy of a verification statement or financing change statement.
8.5 The Client agrees that where MMA has rights in addition to those in Part 9 of the PPSA, those rights will continue to apply.
8.6 For the purpose of this clause:
(a) “PPSA” means the Personal Property Securities Act 1999; and
(b) The expressions “personal property”, “purchase money security interest”, “security agreement”, “security interest”, “perfected security interest”, “verification statement” and “financing change statement” have the meanings given to them under, or in the context of the PPSA.
9. THE CLIENT’S COVENANTS AND WARRANTIES
9.1 The Client agrees that where it is utilising the Services it 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 MMA or any of its Personnel into disrepute, and without limitation, where the Client is not an individual, it shall not cause or allow any of its Personnel to engage in any activity, conduct or otherwise that shall or may prejudicially affect the reputation or goodwill of MMA or its business;
(b) Promptly submit to MMA 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 MMA has rights for any other purpose than expressly or impliedly authorised by MMA or utilise Goods or Services in which MMA’s Intellectual Property resides in any fashion not agreed to by MMA.
10. LIMITATION OF WARRANTY/LIABILITY
10.1 Where the Client acquires the Goods and Services for its own business use all guarantees and remedies in the Consumer Guarantees Act 1993 are excluded.
10.2 Except as otherwise warranted by MMA, the Client acknowledges that it must rely upon its own judgment as to the nature, quality and condition of the Goods supplied by MMA and as to their sufficiency for any use or purpose and the Client acknowledges that MMA is under no duty to ascertain the suitability of the Goods for any purpose whatsoever and that no such representation has been made by MMA.
10.3 The Client agrees 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 the Client obtains Services for personal use) or any other law that cannot be excluded, where MMA provides any express written warranty in these Terms or is otherwise provided to the Client in respect of the Services, MMA provides 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 While MMA has used its reasonable endeavours to develop training programmes and Goods that are designed to deliver helpful outcomes for clients, certain training, coaching, consultation and outcomes from Goods can have results that vary from individual to individual or which may not work in required timeframes or provide the expected or desired results or are dependent on the client to couple any learning with dietary and exercise requirements and other healthy practices. Accordingly, MMA cannot warrant any particular outcome from its training and individual clients may not achieve the desired results from a course or use of any Goods supplied, despite it being generally designed to provide those results, or in the case of Goods, designed to provide results in conjunction with consultation and advice from your consultant.
10.6 Subject to clause 6.2 of these Terms, the parties acknowledge and agree that in no event will MMA or its Personnel have any liability to the Client arising out of or connection with these Terms or the outcomes, use or performance of Services or providing of Goods.
10.7 Subject to the Consumer Guarantees Act 1993 (where it applies), in the event clause 6.5 is held not to apply, the parties agree that MMA 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 MMA from the Client for the Goods or Services; or
(c) Damages in respect of any claim made:
(i) more than six months from the date the Client becomes aware of the circumstances leading to that claim; or
(ii) more than 12 months after the relevant cause of action arise.
10.8 In accordance with section 5D of the Fair Trading Act 1986, where the client is a business and the Services are provided in trade, the client agrees that it does not rely on any representations or other conduct by MMA 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.
11.1 The Client indemnifies MMA 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 the Client;
(b) Any contravention of applicable laws or regulations by the Client;
(c) Any claim by any third party arising from any act or omission of the Client in connection with these Terms (whether negligent or not), including and misrepresentations, warranty or agreement made by the client with respect of MMA or any Personnel of MMA;
(d) Without limiting clause (b), any negligent, wilful, reckless or unlawful act or omission of, or any intentional misconduct by the Client in connection with these Terms; or
(e) Any claim by the Client, to the extent that such claim is beyond the scope of MMA’s liability to the Client 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 8.1 above, then the parties must:
(a) Meet online by a method determined by MMA to discuss the Dispute and make a genuine effort to resolve the Dispute;
(b) If no resolution of the Dispute has occurred within ten (10) Business Days from the date of the giving of the notice in accordance with clause 8.1, 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.
13. Privacy and Commercial Information
(b) From time to time MMA would like to send you information about Goods, Services or other topical commercial informational, promotional or marketing material that relate to MMA or its affiliates and third parties that it considers that the client may be interested in. The Client consents to MMA forwarding such information to the Client by email. Should the Client wish to cease receiving this information it may unsubscribe from it at any time using the process set out in the emails that the Client will receive in respect of this information.
14.1 To be effective, any waiver of any or all of the terms and conditions in any agreement the Client has with MMA must be in writing.
14.2 The Client may not assign all or any of its rights or obligations under these Terms.
14.3 MMA is 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 MMA.
14.4 Where MMA has 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.
14.5 Failure by MMA to enforce any of the terms and conditions shall not be deemed to be a waiver of any of the rights or obligations MMA has under these Terms.
14.6 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.
14.7 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.
15. 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.
“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 MMA to a Client 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 (including the MMA and MMA Mindset name and brand), 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 the business of, or Goods or Services of MMA.
“Personnel” means employees, agents, contractors, shareholders, principals, officers or directors and in the case of MMA includes MMA’s trainers and coaches that are providing Services on behalf of MMA in accordance with these Terms.
“Services” includes all training, educational, consultation, coaching, support or other services provided by MMA to a Client.
“Web Portal” means the website operated by MMA at [URL] and in particular any Web Portal on which Clients make orders for Services at [URL].