TERMS AND CONDITIONS
ASCEND NUTRITION LIMITED
1. DEFINITIONS
1.1 Definitions: In these Terms and Conditions, the following words will,
unless the context otherwise admits or requires, have the following meanings:
Agreement means these terms and conditions.
Ascend means Ascend Nutrition Limited and any agents or employees of Ascend Nutrition Limited.
Customer means any person or entity purchasing Services from Ascend. Deposit means items (i) and (ii) of the Price below.
Sign-Up Fee or Upfront Fee means the amount specified as the applicable one-off initial fee on the Website from time to time, as applicable to the Package being purchased.
Package means the specific Services purchased by the Customer.
Price means the price for the Services as detailed on the Website, comprising:
(i) an initial payment of the Sign-Up Fee or Upfront Fee;
(ii) an initial payment of the Weekly Fee for an eight-week period;
(iii) the Weekly Fee for each additional week, or part thereof, following
the period in (ii) above before this Agreement is cancelled; and
(iv) any additional fees agreed between the parties from time to time for
Services in addition to those specified in the applicable package.
Unless otherwise specified, the Price includes GST (if any) and is expressed in New Zealand dollars.
Services means the nutrition, exercise and lifestyle advice supplied or to be supplied by Ascend to the Customer, as described in the applicable Package.
Website means https://www.ascendnutritionnz.com.
Weekly Fee means the amount specified as the ongoing fee, payable on a weekly or fortnightly basis, for the applicable Package on the Website, from time to time.
2. AGREEMENT
2.1 By completing the sign-up and payment form on the Website to engage Ascend to provide the Services, the Customer agrees to the terms and conditions set out in this Agreement.
3. SERVICES
3.1 Following the Customer completing the sign-up and payment form on the Website, and in all respects within 7 days thereof, Ascend shall provide, or arrange to provide, the Services to the Customer.
4. PAYMENTS
4.1 All payments required to be made pursuant to this Agreement shall be in cleared funds, without deduction or setoff, to Ascend’s nominated bank account, or as otherwise notified to the Customer by Ascend from time to time.
4.2 The Customer agrees to all amounts owing to Ascend by the Customer from time to time, being paid by way of direct debit from the Customer’s bank nominated account.
4.3 The Customer shall pay the Deposit to Ascend’s nominated bank account. The Deposit is in part payment of the Price. Notwithstanding any other term or condition set out in this Agreement, Ascend shall have no obligations pursuant to this Agreement until the Deposit is paid. If the Deposit is not paid within 7 days of the Customer completing the sign-up and payment form on the Website, Ascend may terminate this Agreement by providing notice in writing to the Customer.
4.4 Subject to clause 4.1, the balance of the Price shall be payable by the Customer to Ascend, with each such payment amount being due and payable prior to the provision of the Services.
4.5 All payments made by the Customer are non-refundable.
4.6 The Price may be varied by Ascend from time to time, in Ascend’s sole
discretion, without notice.
4.7 Payments received by Ascend from the Customer may be allocated in
Ascend’s sole discretion.
4.8 If the Customer fails to pay any amount on or prior to the applicable due
date for payment, or is otherwise in breach of this Agreement, Ascend may, in its sole discretion, without prejudice to and in addition to any other rights and remedies, do any one or more of the following:
(a) suspend the provision of the Services and the operation of this
Agreement;
(b) if payment is not made within 7 days of Ascend’s written demand,
terminate (in whole or in part) this Agreement;
(c) charge interest at a rate of 5% per month on the amount owing,
calculated on a daily basis, from the applicable due date for payment until Ascend receives payment in full; and/or
(d) take legal or other action to recover the amounts owing and/or appoint a collections agent or other third party to collect the amounts owing, and all costs and expenses associated with the Customer’s default (including legal costs as between solicitor and client) shall be paid by the Customer, in addition to any amount owing.
5. CANCELLATION
5.1 Once the sign-up and payment form on the Website has been completed by the Customer, it constitutes a legally binding contract for Ascend to provide the Services, and cannot be cancelled by the Customer, except as expressly set out in this Agreement or if Ascend provides its prior written consent.
5.2 The Customer may cancel this Agreement at any time by providing at least one week’s written notice to Ascend, however, such cancellation shall not entitle the Customer to a refund of any payments made to Ascend.
5.3 Ascend may cancel this Agreement at any time by providing at least one week’s written notice to the Customer. On the basis the Customer is not in breach of any obligation set out in this Agreement, Ascend shall refund the Customer on a pro rata basis for any Services paid for and not yet provided.
5.4 Cancellation of this Agreement for any reason will not affect such rights and obligations of the parties as are intended to survive the cancellation. 5.5 Cancellation of this Agreement by Ascend shall be without prejudice to
any other right or remedy set out in this Agreement or available at law.
6. DISCLAIMER
6.1 Ascend does not in any way guarantee any particular results or outcomes from the provision of the Services. The Customer acknowledges that they have entered into this Agreement in reliance of their own knowledge and judgment and not in reliance of any representations made by Ascend or its employees or agents.
6.2 The Services do not amount to medical advice and neither Ascend, nor any of its employees or agents, are medically trained. The Customer acknowledges and agrees that they should seek their own advice from a medical professional prior to engaging the Services. The Customer has entered into this Agreement at their own risk.
6.3 The Services are provided by Ascend to the Customer personally and are provided in reliance of the information provided by the Customer. The Customer warrants that all information provided to Ascend is true, correct and complete.
7. INDEMNIFICATION
7.1 The Customer agrees to indemnify Ascend against all liabilities, costs (including full costs between solicitor and client), losses, claims, expenses and demands incurred by Ascend or any third party arising out of or incidental to the Customer’s breach of this Agreement, and/or arising out of or incidental to the Services, except where such liabilities, costs, claims and demands are the direct result of the gross negligence of Ascend.
8. LIMITATION OF LIABILITY
8.1 The Consumer Guarantees Act 1993, the Contract and Commercial Law Act 2017, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon Ascend which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on Ascend, Ascend’s liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.
8.2 Subject to applicable law, Ascend will be under no liability whatsoever to the Customer for any indirect loss, consequential loss, fines, loss of profit, loss of bargain, loss of business opportunity or exemplary damages suffered by the Customer or any other person, arising out of or flowing from this Agreement, whether contemplated by this Agreement or not, and whether actionable under contract, statute, tort (including negligence), equity or otherwise. In addition to the above, Ascend shall not be liable to the Customer or any third party to the extent that any loss or damage is, directly or indirectly, caused or contributed to by the Customer, or the Customer’s employees, representatives, agents or third parties.
8.3 In the event that Ascend is found liable for any loss or damages, including any loss or damages set out in 8.1 above, such loss or damages will be limited in aggregate to the Price, and is inclusive of all claims made against Ascend by the Customer pursuant to this Agreement.
9. PERSONAL INFORMATION
9.1 The Customer agrees that Ascend may collect, use and disclose the Customer’s personal information for purposes related to the Customer’s
TERMS AND CONDITIONS
ASCEND NUTRITION LIMITED
dealings with Ascend, direct and indirect marketing, provision of information about the Services, debt collection and credit reporting or assessment. If the Customer is an individual, the Customer has rights under the Privacy Act 2020 (or its successor legislation) to access any personal information that Ascend holds and to request the correction of such personal information.
9.2 Subject to any opt-out received from the Customer at any time, the Customer consents to receiving commercial electronic messages from Ascend.
10. DISPUTERESOLUTION
10.1In the event of any dispute under this Agreement, the parties will:
(a) promptly give full written particulars of this dispute to the other; and
(b) cooperatively enter into discussions to try and resolve the dispute.
10.2If the dispute is not resolved within 14 days of written particulars being given (or any longer period agreed to by the parties) the dispute will be referred to mediation. If a mediator cannot be agreed by the parties within 14 days of written particulars being given (or any longer period agreed to by the parties), a mediator must be appointed by the President of the Arbitrators and Mediators Institute of New Zealand. Each party must bear their own costs associated with the mediation, and an equal share of the mediator’s costs. Despite the dispute, each party shall continue to perform its obligations under the Agreement as far as practicable given the nature of the dispute.
10.3This clause 10 does not:
(a) apply to any dispute arising in connection with any attempted re-
negotiation of this Agreement; or
(b) apply to an application by either party for urgent interlocutory relief.
11. MISCELLANEOUS
11.1IP: Ascend shall retain ownership of all intellectual property rights in
respect of all plans and advice whether new or existing, authored or otherwise provided by Ascend, its employees and/or agents. The Customer shall not copy or distribute any such plans or advice other than for the Customer’s personal use unless Ascend has consented in writing on each occasion.
11.1Confidentiality: The content of this Agreement and all of Ascend’s information, which by designation or by its nature, is intended to be treated as confidential will be confidential information for the purposes of this Agreement (Confidential Information). The Customer will not, without the prior written consent of Ascend, disclose any Confidential Information to any third party, except as required pursuant to law or a Court of competent jurisdiction.
11.2Marketing: Ascend shall obtain the Customer’s approval prior to using the Customer’s details and/or photos for marketing and advertising purposes. 11.3Governing Law: This Agreement shall be governed by the laws of New Zealand and, subject to clause 10, the parties submit to the non-exclusive
jurisdiction of the courts of New Zealand.
11.4Notices: All notices under this Agreement must be in writing and either
delivered by hand, or sent by email or post to a contact address provided by the relevant party. A notice is deemed to be received if it is delivered personally, when delivered; if posted, 5 days after positing; or by email, when the email leaves the communication system of the sender, provided that the sender does not receive any error message relating to the sending of the email.
11.5Assignment: The Customer shall not assign or otherwise transfer or encumber its rights or obligations under this Agreement except with the prior written consent of Ascend. Ascend can at any time assign or otherwise transfer, encumber or subcontract any of its rights and obligations under this Agreement to a third party, without notice to the Customer.
11.6Waiver: A party will not have waived or be deemed to have waived any provision of this Agreement unless the waiver is in writing and signed by that party.
11.7Survivorship: Termination of this Agreement for any reason will not affect such rights and obligations of the parties as are intended to survive the termination including, but not limited to, clauses 4, 6, 7, 8, 9, 11.1, 11.2 and 11.9.
11.8No relationship: This Agreement does not create any relationship of partnership, employment, agency or joint venture between the parties.
11.9Severability: Should any part or provision of this Agreement be held unenforceable or in conflict with any applicable laws or regulations, the invalid or unenforceable part or provision will be replaced with a provision which accomplishes, to such extent as possible, the original business purpose of the part or provision in a valid and enforceable manner, and the remainder of the Agreement will remain binding on the parties.
11.10 Entire Agreement: This Agreement constitutes the sole understanding of the parties and supersedes all prior understandings, written or oral, which will be of no further force or effect.
11.11 Interpretation: Any statutory provision will include any statutory provision which amends or replaces it and any subordinate legislation made under it.