Conditions of Use
1.1 “HBW” means AVM Enterprises Limited T/A Home Brew West, its successors and assigns or any person acting on behalf of and with the authority of AVM Enterprises Limited T/A Home Brew West.
1.2 “Customer” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
1.3 “Goods” means all Goods or Services supplied by HBW to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Goods as agreed between HBW and the Customer in accordance with clause 6 below.
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with HBW’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and HBW.
2.3 These terms and conditions are meant to be read in conjunction with the Terms and Conditions posted on HBW’s website. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail.
3. Electronic Transactions Act 2002
3.1 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 22 of the Electronic Transactions Act 2002 or any other applicable provisions of that Act or any Regulations referred to in that Act.
4. Age Restrictions
4.1 The Customer agrees that to order, purchase and accept delivery of Goods from HBW, the Customer must be of the legal age of eighteen (18) years or over to purchase alcoholic beverages. The Customer agrees not to supply any Goods purchased from HBW to anyone under the legal age for alcohol consumption. HBW reserves the rights to request formal identification to confirm the age of the Customer. If the Customer refuses or if HBW is not satisfied with the evidence supplied by the Customer then HBW may cancel any order and provide a refund. HBW will not be held liable for any reason in the event that the Customer fails to comply with this clause.
5. Change in Control
5.1 The Customer shall give HBW not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by HBW as a result of the Customer’s failure to comply with this clause.
6. Price and Payment
6.1 At HBW’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by HBW to the Customer; or
(b) the Price of the Goods according to HBW’s current price list displayed on HBW’s website at the time the order is placed; or
(c) HBW’s quoted price (subject to clause 6.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
6.2 HBW reserves the right to change the Price in the event of increases to HBW in the cost of the Goods (including but not limited to overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) which are beyond HBW’s control.
6.3 At HBW’s sole discretion a deposit may be required.
6.4 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by HBW, which may be:
(a) before delivery of the Goods;
(b) the date specified on any invoice or other form as being the date for payment; or
(c) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by HBW.
6.5 Payment may be made by electronic/on-line banking, credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by any other method as agreed to between the Customer and HBW.
6.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to HBW an amount equal to any GST HBW must pay for any supply by HBW under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
7. Gift Vouchers/Certificates
7.1 All HBW gift vouchers or certificates must be redeemed in full within one hundred and eight (180) days of issue unless stated on the certificate, and cannot be exchanged for cash.
7.2 HBW gift vouchers or certificates must be redeemed by the person to whom the voucher or certificate was issued, at the shopping cart.
7.3 If the value of your purchase is more than the value of your voucher or certificate you can pay the balance of your purchase with any of HBW’s usual payment methods.
8. Delivery of Goods
8.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Goods at HBW’s address; or
(b) HBW (or HBW’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
8.2 At HBW’s sole discretion the cost of delivery is in addition to the Price.
8.3 The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then HBW shall be entitled to charge a reasonable fee for redelivery and/or storage.
8.4 HBW may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
8.5 Any time or date given by HBW to the Customer is an estimate only. The Customer must still accept delivery of the Goods even if late and HBW will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.
9. Online Ordering
9.1 The Customer acknowledges and agrees that:
(a) HBW does not guarantee the websites performance or availability of any of its Goods; and
(b) on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades; and
(c) there are inherent hazards in electronic distribution and as such HBW cannot warrant against delays or errors in transmitting data between the Customer and HBW including orders, and you agree that to the maximum extent permitted by law, HBW will not be liable for any losses which the Customer suffers as a result of online-ordering not being available or for delays or errors in transmitting orders; and
(d) once an order has been placed an automatic email confirmation will be sent to the Customer’s registered email address and HBW has the right to review and/or cancel the order if the information supplied cannot be verified; and
(e) HBW reserves the right to terminate your order if it learns that you have provided false or misleading information, interfered with other users or the administration of HBW Services, or violated these terms and conditions.
10.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
10.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, HBW is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by HBW is sufficient evidence of HBW’s rights to receive the insurance proceeds without the need for any person dealing with HBW to make further enquiries.
10.3 If the Customer requests HBW to leave Goods outside HBW’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
11. Specifications of the Goods
11.1 Where HBW gives advice or recommendations to the Customer, or the Customer’s agent, with specific instructions regarding the use of the Goods and such advice or recommendations are not acted upon then HBW shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent purchase of the Goods.
11.2 The Customer acknowledges that:
(a) all descriptive specifications, illustrations, drawings, data, dimensions and weights stated in HBW’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Customer shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by HBW;
(b) while HBW may have provided information or figures to the Customer regarding the performance of the Goods, (including, but not limited to, the alpha rating of hops or the EBC colour rating of malt) the Customer acknowledges that HBW has given these in good faith, and are estimates which are variable due to factors out of HBW’s control.
11.3 The Customer shall be responsible for ensuring that the Goods ordered are suitable for their intended use.
11.4 HBW will always endeavour to have full stock of the Goods, however this depends on HBW‘s suppliers. Heavy demand, limited editions or factors beyond the control of HBW may result in the Goods being temporarily or permanently unavailable. HBW will advise any such delays and the options available, however HBW reserves the right to substitute comparable Goods (or components of the Goods), and will notify the Customer in advance of any such substitution.
12.1 HBW and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid HBW all amounts owing to HBW; and
(b) the Customer has met all of its other obligations to HBW.
12.2 Receipt by HBW of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
12.3 It is further agreed that:
(a) until ownership of the Goods passes to the Customer in accordance with clause 12.1 that the Customer is only a bailee of the Goods and must return the Goods to HBW on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for HBW and must pay to HBW the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for HBW and must pay or deliver the proceeds to HBW on demand.
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of HBW and must sell, dispose of or return the resulting product to HBW as it so directs.
(e) the Customer irrevocably authorises HBW to enter any premises where HBW believes the Goods are kept and recover possession of the Goods.
(f) HBW may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of HBW.
(h) HBW may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
12. Personal Property Securities Act 1999 (“PPSA”)
13.1 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Goods previously supplied by HBW to the Customer (if any) and all Goods that will be supplied in the future by HBW to the Customer.
13.2 The Customer undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which HBW may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, HBW for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
(c) not register a financing change statement or a change demand without the prior written consent of HBW; and
(d) immediately advise HBW of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
13.3 HBW and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
13.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
13.5 Unless otherwise agreed to in writing by HBW, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
13.6 The Customer shall unconditionally ratify any actions taken by HBW under clauses 13.1 to 13.5.
14. Security and Charge
14.1 In consideration of HBW agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
14.2 The Customer indemnifies HBW from and against all HBW’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising HBW’s rights under this clause.
14.3 The Customer irrevocably appoints HBW and each director of HBW as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 14 including, but not limited to, signing any document on the Customer’s behalf.
15. Customer’s Disclaimer
15.1 The Customer hereby disclaims any right to rescind, or cancel any contract with HBW or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by HBW and the Customer acknowledges that the Goods are bought relying solely upon the Customer’s skill and judgment.
16.1 The Customer shall inspect the Goods on delivery and shall within forty-eight (48) hours of delivery (time being of the essence) notify HBW of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford HBW an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which HBW has agreed in writing that the Customer is entitled to reject, HBW’s liability is limited to either (at HBW’s discretion) replacing the Goods or repairing the Goods.
17.1 Returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 16.1; and
(b) HBW has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Customer’s cost within seven (7) days of the delivery date; and
(d) HBW will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances;
(f) the Customer notifies HBW via email prior to HBW accepting the return of the Goods with the reason for the return for consideration by HBW within five (5) days of receipt of the Goods.
17.2 Payment of refunds accepted as per clause 17.1 will be processed in the original payment format as your purchase excluding courier charges. You will be notified via email to the address listed on your account when the transaction has taken place.
17.3 Returned Goods may (at HBW’s sole discretion), incur restocking and handling fees.
17.4 Non-stocklist items or Goods made to the Customer’s specifications are under no circumstances acceptable for credit or return.
18.1 For Goods not manufactured by HBW, the warranty shall be the current warranty provided by the manufacturer of the Goods. HBW shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
18.2 To the extent permitted by statute, no warranty is given by HBW as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. HBW shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
19. Consumer Guarantees Act 1993
19.1 If the Customer is acquiring Goods for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by HBW to the Customer.
20. Intellectual Property
20.1 Where HBW has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of HBW.
20.2 The Customer warrants that all designs, specifications or instructions given to HBW will not cause HBW to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify HBW against any action taken by a third party against HBW in respect of any such infringement.
20.3 The Customer agrees that HBW may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which HBW has created for the Customer.
21. Default and Consequences of Default
21.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at HBW’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
21.2 If the Customer owes HBW any money the Customer shall indemnify HBW from and against all costs and disbursements incurred by HBW in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, HBW’s collection agency costs, and bank dishonour fees).
21.3 Without prejudice to any other remedies HBW may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions HBW may suspend or terminate the supply of Goods to the Customer. HBW will not be liable to the Customer for any loss or damage the Customer suffers because HBW has exercised its rights under this clause.
21.4 Without prejudice to HBW’s other remedies at law HBW shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to HBW shall, whether or not due for payment, become immediately payable if:
(a) any money payable to HBW becomes overdue, or in HBW’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
22.1 HBW may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice HBW shall repay to the Customer any money paid by the Customer for the Goods. HBW shall not be liable for any loss or damage whatsoever arising from such cancellation.
22.2 In the event that the Customer cancels delivery of Goods within twenty four (24) hours of placing the order for the Goods online, the Customer shall be liable for any and all loss incurred (whether direct or indirect) by HBW as a direct result of the cancellation (including, but not limited to, any loss of profits). Requests for cancellation of any orders will be considered on a case-by-case basis and HBW will exercise its sole discretion in determining whether and order placed may be cancelled.
22.3 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
23. Privacy Act 1993
23.1 The Customer authorises HBW or HBW’s agent to:
(a) access, collect, retain and use any information about the Customer;
(i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Customer.
(b) disclose information about the Customer, whether collected by HBW from the Customer directly or obtained by HBW from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.
23.2 Where the Customer is an individual the authorities under clause 23.1 are authorities or consents for the purposes of the Privacy Act 1993.
23.3 The Customer shall have the right to request HBW for a copy of the information about the Customer retained by HBW and the right to request HBW to correct any incorrect information about the Customer held by HBW.
24.1 The failure by HBW to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect HBW’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
24.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.
24.3 HBW shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by HBW of these terms and conditions (alternatively HBW’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
24.4 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by HBW nor to withhold payment of any invoice because part of that invoice is in dispute.
24.5 HBW may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
24.6 The Customer agrees that HBW may amend these terms and conditions at any time. If HBW makes a change to these terms and conditions, then that change will take effect from the date on which HBW notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for HBW to provide Goods to the Customer.
24.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
24.8 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.