Terms and conditions
DOWN TO EARTH FOODS Ltd TERMS AND CONDITIONS OF SALE
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.
2.1 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2.3 Upon acceptance of these terms and conditions by the Buyer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Seller.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.
3.1 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.
6.1 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.
7.1 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.
10.1 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.
12.1 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.
16.1 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.
17.1 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.