Unless the context otherwise requires, the following definitions shall apply to these terms and conditions:-
“Company” – Better Tea Company Limited. New Zealand company number 9429046720443
“Buyer” – the purchaser of the goods from the Company shown on the front of this form.
“Default Rate” means published unauthorised overdraft rate of ANZ
“Goods” mean those goods supplied to the Buyer.
The goods will be supplied to the Buyer on these terms and conditions unless the Company agrees in writing to change them.
The Company will not be bound by any conditions included in the Buyer’s order unless it expressly accepts them in writing.
The price for the goods shall be the price agreed between the Company and the Buyer at the date of the order, or if no such agreement is made then the current wholesale price charged by the Company at the date of delivery. The price contracted is firm in the currency quoted. The price does not include charges for freight, demurrage, taxes, insurance or duties unless otherwise agreed between the Company and the Buyer.
Any price agreed between the Company and the Buyer at the date of the order is subject to any variation, extras, deletions, price increases and decreases and any applicable taxes incurred or arising between the date of the order and the date of delivery.
Subject to agreement between the parties, all invoices are prior to goods being sent unless Buyer has completed Wholesale Application, then invoices are to be paid on or before the 20th of the month, following the date of a Better Tea Co. invoice. If the Buyer fails to pay on or before due date the Buyer shall pay interest at the Default Rate from the due date until payment. Method of payment, Electronic Funds Transfer to:
ANZ Bank Account Number: 06-0507-0810467-00
The Buyer shall pay the price in full and shall have no right to set off against the price any claims which the Buyer might have against the Company.
The price shall become immediately payable regardless of the terms of payment and the Company may take immediate action to recover the price if the Buyer is in default under this Agreement or commits an act of bankruptcy or goes into liquidation or receivership or enters into a creditor’s composition or has its credit standing impaired in any other way.
The Buyer undertakes to pay to the Company on demand all reasonable costs (including solicitors costs calculated as between solicitor and client) expended in recovering payment of any monies owing to the Company for the supply of goods and services.
If you are a company or trust, the director(s) or trustee(s) signing this contract jointly and severally guarantee to us the payment of the balance of your credit facility from time to time, and the payment of any and all other monies now or hereafter owed by you to us. Any personal guarantee made by any party shall not exclude you in any way whatsoever from the liabilities and obligations contained in this contract. The guarantors and customer shall be jointly and severally liable under the terms and conditions of this contract.
The Company may stop future deliveries until the Buyer has paid for all previous deliveries.
Delivery shall be made at the place indicated by the Order and if no place shall be indicated then delivery shall be made at the Company’s premises.
If a carrier is used to effect delivery, delivery to the carrier shall constitute delivery to the Buyer.
If the Company is unable to deliver the goods because of any cause beyond its control it may contact the Buyer to rearrange delivery, suspend delivery or cancel the Buyer’s order.
The Company will do all in its power to see that deliveries are maintained according to schedule but any period or dates quoted for delivery are to be regarded as approximate only.
Goods may be delivered in instalments.
Ownership in the goods shall not pass to the Buyer until the Buyer has paid for the same together with any other monies owing to the Company.
Until payment to the Company has been made, the Buyer acknowledges and agrees that: (a) the Buyer is the fiduciary owner of the goods and shall only deal with them as agent for and on behalf of the Company (b) the Buyer irrevocably gives the Company and its agents the right to enter upon the Buyer’s premises to search for and remove any of the goods without in any way being liable to the Buyer or to any person or company claiming through the Buyer; (c) if the Buyer sells the goods prior to payment for the same to the Company;
the proceeds of any resale will belong to the Company
all claims which the Buyer holds against third parties remains with the Buyer and the Buyer holds accountablity for the payment of same goods to the Company.
The risk in the goods shall pass to the Buyer upon delivery even though ownership of the goods may not have passed to the Buyer.
The Buyer shall indemnify the Company against any loss suffered by the Company by reasons of damage to or destruction of the goods at the site arising through causes beyond the control of the Company.
Supply for business purposes
Where the Buyer purchases the goods for business purposes the provisions of the Consumer Guarantees Act 1993 shall not apply to the supply of goods by the Company to the Buyer.
Warranties and conditions
This clause shall apply where the Buyer is not a consumer (as defined in the Consumer Guarantees Act 1993).
All representations or terms (including any condition or warranty expressed or implied by law, statute or otherwise) not expressly included in these terms and conditions are hereby expressly excluded.
The Company’s liability arising from any of these terms and conditions or a breach of them or for any misrepresentation shall be limited to the price of the goods or the actual loss or damage suffered whichever shall be the lesser.
Under no circumstances will the Company be liable for indirect or consequential loss of any kind whatsoever.
The Buyer agrees to indemnify and keep indemnified the Company from and against all costs, damages and expenses incurred by or recovered against the Company in respect of any claim for infringement of any letters patent or registered design where the Company has used them on the Buyer’s instructions.
The Company will not be liable for any loss, damage or injury, delay, late shipment or non-delivery whatsoever, due to any cause or circumstance beyond our control. Without derogating from the generality of the foregoing such cause or circumstances shall include non availability of or late departure or non delivery or late delivery of shipping or any other freight, acts of Government, strikes, lockouts, fire, accidents, acts of war, floods, riots, civil commotions, malicious mischief or theft.
The Company shall be entitled to cancel any order if the Buyer being a company or body corporate shall go into liquidation or receivership or being a person shall become bankrupt.
The Company shall be entitled to cancel any orders if the Buyer is refused any requisite export or import permit in respect of the goods.
The Buyer agrees that the Company may obtain information about the Buyer from the Buyer or any other person (including any credit or debt collection agencies) in the course of the Company’s business, including credit assessment, debt collecting and direct marketing activities, and the Buyer consents to any person providing the Company with such information.
The Buyer agrees that the Company may use any information it has about the Buyer relating to the Buyer’s creditworthiness and give that information to any other person, including any credit or debt collection agency, for credit assessment and debt collection purposes. The Buyer agrees that any other information collected by the Company about the Buyer may be used by the Company in the course of its business.
The Buyer shall notify the Company of any change in circumstances which may affect the accuracy of the information provided by the Buyer to the Company.
The Buyer has rights under the Privacy Act 1993 to access and to request the correction of any personal information which the Company holds about the buyer.
The Buyer shall inform the Seller in writing within 7 days of the delivery of the goods of any complaint in respect of the goods whether as to quality or quantity and in such case the Seller may at the Seller’s option and whether or not the complaint of the Buyer shall have been proved correct after reference is hereinafter provided; (i) replace the whole or any part of the goods delivered; (ii) accept return of the goods in which case the price paid by the buyer shall be refunded provided the goods are in the same condition as delivered.
Nothing herein shall affect the obligation of the Buyer to pay in full the price or any other amount due to the seller whether or not any dispute between the parties or any such complaint by the Buyer to pay in full the price or any other amount due to the Seller whether or not any dispute between the parties or any such complaint by the Buyer shall have been referred to arbitration as hereinafter provided.
Any liability imposed on the Company shall be limited to liability to the purchaser of the goods only and shall not extend to any other part and the purchaser hereby indemnifies the Company in respect of any such action taken or claims made by any third party against the Company.
Personal Property Securities Act 1999
The Buyer agrees that:
These terms and conditions create a security interest in all present and after acquired Goods as security for all the Buyer’s obligations to the Company, which is or will be registrable in the Personal Property Securities Registry.
The Buyer must do all such things and execute or arrange for execution of all such documents as the Company may require to ensure that, from the time the PPSA comes into force, the Company has a perfected first ranking security interest(s) in the Goods under the PPSA.
The Company may register a financing statement to perfect its security interest in the Goods delivered, or, to be delivered, to the Buyer.
The Buyer will have no rights under (or by reference to) sections 114(1)(a), 116, 117(1)(c), 119, 120(2), 121, 125, 129, 131, 132, 133 and 134 of the PPSA; and where the Company has rights in addition to those in Part 9 of the PPSA, those rights shall continue to apply.
The Buyer must immediately upon request by the Company, procure from any person considered by the Company to be relevant to its security position such agreements and waivers (including as equivalent to those above) as the Company may at any time require; and immediately notify the Company of any change in the Buyer's name.
Any dispute or difference arising out of this contract shall be referred to arbitration.
The Buyer agrees to immediately notify the Company or agent of the Company of any complaint.
Where necessary the arbitration shall be conducted by a practicing barrister competent in arbitration.