DOWN TO EARTH FOODS Ltd TERMS AND CONDITIONS OF SALE
1. Definitions
1.1 “Seller” shall mean Down To Earth Foods Ltd and its successors
and assigns.
1.2 “Buyer” means the person, company or other business to which the
products are supplied and being the applicant for credit.
1.3 “Guarantor” means that person (or Persons), or entity that
agrees herein to be liable for the debts of the buyer on a principal
debtor basis.
1.4 “Goods” shall have the same meaning as in section 2 of the Sales
of Goods Act 1908 and are goods supplied by the Seller to the Buyer
(and where the content so permits shall include any supply of
Services as hereinafter defined).
1.5 “Price” shall mean the cost of the goods as agreed between the
Seller and the Buyer subject to clause 4 of this contract.
2. Acceptance
2.1 Any instructions received by the Seller from the Buyer for the
supply of Goods shall constitute acceptance of the terms and
conditions contained herein.
2.2 Where more than one Buyer has entered into this agreement the
Buyers shall be jointly and severally liable for all payments of the
Price.
2.3 Upon acceptance of these terms and conditions by the Buyer the
terms and conditions are irrevocable and can only be rescinded in
accordance with these terms and conditions or with the written
consent of the manager of the Seller.
2.4 None of the Seller's agents or representatives are authorised to
make any representations, statements, conditions or agreements not
expressed by the manager of the Seller in writing nor is the Seller
bound by any such unauthorised statements.
2.5 The Buyer undertakes to give the Seller not less than seven (7)
days prior written notice of any proposed change in the Buyer's name
and/or any other change in the Buyer's details (including but not
limited to, changes in the Buyer's address, facsimile number, or
business practice) and change of ownership.
3. Goods/Services
3.1 The Goods and/or Services are as described on the invoices,
quotation, work authorisation or any other work commencement forms
as provided by the Seller to the Buyer
4. Price and Payment
4.1 At the Sellers sole discretion:
(a) The Price shall be as indicated on invoices provided by the
Seller to the Buyer in respect of Goods supplied; or
(b) The Price shall be the Seller's current Price at the date of
delivery of the Goods according to the Sellers current Price
list.
(c) Due to exchange fluctuations any exchange loss may be passed
onto the buyer and the wholesale price will be adjusted
accordingly.
4.2 Time for payment for the Goods shall be of the essence and will
be stated on the invoice, quotation or any other order forms. If no
time is stated then payment shall be on delivery of the goods.
4.3 The Seller may withhold delivery of the Goods until the Buyer
has paid for them, in which event payment shall be made before the
delivery date.
4.4 At the Seller's sole discretion, payment for approved Buyers
shall be on the 20th each month following the date of invoice.
4.5 Payment will be made by cheque, or by bank cheque, or by direct
credit, or by any other method as agreed to between the Buyer and
the Seller.
4.6 The Price shall be increased by the amount of any GST and other
taxes and duties, which may be applicable, except to the extent that
such taxes are expressly included in any quotation given by the
Seller.
5. Delivery of the Goods
5.1 The Buyer shall make all arrangements necessary to take delivery
of the Goods whenever they are tendered for delivery and delivery of
the Goods shall be made to the Buyer at the Seller's address.
5.2 The Seller may deliver the Goods by separate instalments (in
accordance with the agreed delivery schedule). Each separate
instalment shall be invoiced and paid for in accordance with the
provisions in this contract of sale.
5.3 The failure of the Seller to deliver shall not entitle either
party to treat this contract as repudiated.
5.4 The Seller shall not be liable for any loss or damage whatsoever
due to the failure by the Seller to deliver the Goods (or any of
them) promptly or at all.
6. Risk
6.1 Risk in any goods passes to the customer when goods are
delivered to the buyers delivery address or at any other address
nominated by the customer from time to time.
7. Defects/Returns
7.1 The buyer shall inspect the Goods on delivery and shall within
seven (7) days of delivery notify the Seller of any alleged defect,
shortage in quantity, damage or failure to comply with the
description or quote. The Buyer shall afford the Seller an
opportunity to inspect the Goods within a reasonable time following
delivery if the Buyer believes the Goods are defective in any way.
If the Buyer shall fail to comply with the provisions the Goods
shall conclusively presumed to be in accordance with the terms and
conditions and free from any defect or damage.
7.2 Any other returns after seven (7) days will be at the discretion
of the Seller.
7.3 All goods returned whether within 14 days of delivery or not
will require a return authorisation number (RA#) and returned in the
original packing if they are to be accepted or considered.
7.4 Returns in a damaged or dirty state will not be accepted.
8. Point of Sale and Signage
8.1 Point of sale material and signage from time to time made
available to the buyer shall at all times remain the property of the
seller and shall not be disposed of by the buyer without prior
approval of the seller. The seller shall be entitled to require
return of any such point of sale material and signage at any time.
Any goods given to buyers for promotional purposes are not to be
sold without prior approval, this includes stickers. The Buyer is
responsible for theft or damage to any point of sale or signage
whilst on loan.
9. Default & Consequences Of Default
9.1 Interest on overdue invoices shall accrue from the date when
payment becomes due daily until the date of payment at a compounding
rate of 2.5% per calendar month and shall accrue at such a rate
after as well as before any judgement.
9.2 If the Buyer defaults in payment of any invoice when due, the
Buyer shall indemnify the Seller from and against all of the
Seller's costs and disbursements including a solicitor and own
client basis and in addition all of the Seller's nominees costs of
collection.
9.3 Without prejudice to any other remedies the Seller may have, at
any time the Buyer is in breach of any obligation (including those
relating to payment), the Seller may suspend or terminate the supply
of Goods to the Buyer and any of its other obligations under the
terms and conditions. The Seller will not be liable to the Buyer for
any loss or damage the Buyer suffers because the Seller exercised
its rights under this clause.
9.4 If any account remains unpaid at the end of the second month
after the supply of Goods or services the following may apply: An
immediate amount of the greater of $20.00 or 10% of the amount
overdue shall be levied for administration fees which sum shall
become immediately due and payable.
9.5 In the event that:
(a) any money payable to the Seller becomes overdue, or in the
Seller's opinion the Buyer will be unable to meet its payments as
they fall due, or;
(b) The Buyer becomes insolvent, convenes a meeting with its
creditors or proposes or enters into an arrangement with creditors,
or makes and assignment for the benefit of it's creditors, or;
(c) A receiver, manager, liquidator (provisional or otherwise) or
similar person is appointed in respect of the Buyer or any asset of
the Buyer, then without prejudice to the Seller's other remedies at
law
(i) The Seller shall be entitled to cancel all or any part of any
order of the Buyer which remains unperformed in addition to and
without prejudice to any other remedies; and
(ii) All amounts owing to the Seller shall, whether or not due for
payment, immediately become due and payable.
10. Title
10.1 It is the intention of the Seller and agreed by the Buyer that
property in the goods shall not pass until:
(a) The Buyer has paid all amounts owing for the particular Goods,
and
(b) The Buyer has met all other obligations due by the Buyer to the
Seller in respect of all contracts between the Seller and the Buyer,
and that the Goods, or proceeds of the sale of the Goods, shall be
kept separate until the Seller shall have received payment and all
other obligations of the Buyer are met.
10.2 It is further agreed that:
(a) Until such time as ownership of the Goods shall pass from the
Seller to the Buyer the Seller may give notice in writing to the
Buyer to return the Goods or any of them to the Seller. Upon such
notice the rights of the Buyer to obtain ownership or any other
interest in the Goods shall cease.
(b) If the Buyer fails to return the Goods to the Seller then the
Seller or the Seller's agent may enter upon and into land and
premises owned, occupied or used by the Buyer, or any premises as
the invitee of the Buyer, where the Goods are situated and take
possession of the Goods, without being responsible for any damage
thereby caused.
11. Personal Property Securities Act 1999
11.1 Upon accepting these terms and conditions the Buyer
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
the Seller to the Buyer if any and all Goods that will be supplied
in the future by the Seller to the Buyer during the continuance of
the parties relationship;
11.2 The Buyer 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 the Seller may reasonably require
to register a financing statement or financing change statement on
the Personal Property Securities Register;
(b) Indemnify, and upon demand reimburse the Seller 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 the Seller;
(d) Give the Seller not less than fourteen (14) days prior written
notice of any proposed change in the Buyers name and / or any other
change in the Buyers details (including but not limited to, changes
in the Buyers address, facsimile number, or business practice);
and
(e) Immediately advise the Seller of any material change in it's
business practices of Selling the Goods which would result in a
change in the nature of proceeds derived from such sales.
(f) The Seller and the Buyer agree that nothing in sections
114(1)(a), 133 and 134 of the PPSA shall apply to these Terms and
Conditions.
(g) The Buyer waives its rights as a debtor under sections 116,
120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
11.3 Unless otherwise agreed to in writing by the Seller, the Buyer
waives it's right to receive a verification statement in accordance
with section 148 of the PPSA.
11.4 The Buyer unconditionally ratifies any actions taken by the
Seller under and by virtue of the power of attorney given by the
Buyer to the Seller under clauses 11.1 to 11.3.
12. Cancellation
12.1 The buyer shall be entitled to cancel any order placed with the
seller for goods within a 14 day period after the placement of the
order. Provided always that if the seller has in turn ordered the
goods from its supplier then and in any such case the buyer is only
entitled to cancel the order where the seller is able to cancel the
order it has placed with its supplier for the goods in question. At
the option of the seller costs incurred by the seller in cancelling
its order with its supplier may be chargeable against the buyer and
the buyer acknowledges its liability in this regard.
12.2 Outside the said 14 day period the buyer has no right of cancellation of any order but the seller shall have discretion as to whether it agrees to a cancellation following any request by the buyer to do so. If the seller in any case agrees to accept a cancellation then the buyer shall pay to the seller in consideration for its agreement to such cancellation a cancellation/restocking fee equivalent to 25% of the value + gst of the invoice value of the goods that constitute the cancelled order BUT the order shall not be deemed to be cancelled until such fee is paid.
12.3 Due dates for delivery are best endeavour dates and are not causes for cancellation if delivered outside of these dates.
12.4 Should a buyer have placed an order and that any of the events in clause 9.5 of these terms and conditions should occur to the buyer then the seller shall not be obliged to fulfil that order and deliver the goods, however cancellation fees will still apply at the sellers discretion.
12.5 The Seller may cancel these Terms and Conditions or cancel delivery of Goods and Services at any time before the Goods are delivered by giving written notice. On giving such notice the Seller shall promptly repay to the buyer any sums paid in respect of the price for those Goods. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation.
13 Privacy Act 1993
13.1 The Buyer and the Guarantor/s (if separate to the Buyer)
authorises the Seller to collect, retain and use any information
about the Buyer, for the purpose of assessing the Buyers
creditworthiness or marketing any Goods and Services provided by the
Seller to any other party.
13.2 The Buyer authorises the Seller to disclose any information
obtained to any person for the purposes set out in clause 13.1.
13.3 Where the Buyer is a natural person the authorities under
(clause 13.1 and 13.2) are authorities or consents for the purposes
of the Privacy Act 1993.
14 Buyers Disclaimer
14.1 The Buyer hereby disclaims any right to rescind, or cancel the
contract or to sue for damages or to claim restitution arising out
of any misrepresentation made to him by any servant or agent of the
Seller and the Buyer acknowledges that he buys the Goods relying
solely upon his own skill and judgement and that the Seller shall
not be bound by nor responsible for any term, condition,
representation or warranty other than the warranty given by the
Manufacturer which warranty shall be personal to the Buyer and shall
not be transferable to any subsequent Buyer.
15 Contractual Remedies Act
15.1 The provisions of the Contractual Remedies Act 1979 shall apply
to this contract as if Section 15(d) of the Act which states which
nothing in the Act shall affect the Sale of Goods Act 1908, were
omitted from the Contractual Remedies Act 1979.
16 Lien
16.1 Where the Seller has not received or been tendered the whole of
the price, or the payment has been dishonoured, the Seller shall
have:
(a) A lien on the Goods;
(b) The right to retain them for the price while the Seller is in
possession of them;
(c) A right of stopping the Goods in transit whether or not delivery
has been made or ownership has passed;
(d) A right of resale;
(e) The forgoing right of disposal, provided that lien of the Seller
shall continue despite the commencement of proceedings or judgement
for the price having being obtained.
17 General
17.1 If any provision of these Terms and Conditions shall be
invalid, void or illegal or unenforceable the validity existence,
legality and enforceability of the remaining provisions shall not be
affected, prejudiced or impaired.
17.2 All Goods and Services supplied by the Seller are subject to
the laws of New Zealand and the Seller takes no responsibility for
changes in the law that affect the Goods or Services supplied.
17.3 The Seller shall be under no liability whatsoever to the Buyer
for any indirect loss and: or expense (including loss of profit)
suffered by the Buyer arising out of a breach by the Seller of these
Terms and Conditions.
17.4 In the event of any breach of this contract by the Seller the
remedies of the Buyer shall be limited to damages. Under no
circumstances shall the liability of the Seller exceed the price of
the Goods.
17.5 Neither party shall be liable for any default due to any act of
god, terrorism, war, strike, lock out, industrial action, flood,
storm or other event beyond the reasonable control of either
party.
17.6 The Seller reserves the right to review these Terms and
Conditions at any time and from time to time. If, following any such
review there is to be any change in such Terms and Conditions, that
change will take effect from the date on which the Seller notifies
the Buyer of such change. This notification needs only consist of
providing the buyer access to an updated copy.
17.7 The terms and Conditions of Sale the Seller and Buyer are bound
to will always be the most up to date version.