Terms of Trade
Ffowcs Williams Ltd: Terms of Trade 23.6.2014
TERMS OF TRADE
1.1 “Customer” means the party or parties receiving Goods from the Supplier.
1.2 “Due Date” means in respect of each invoice issued to the Customer by the Supplier, the date seven (7) days from the date of invoice or such other date agreed in writing by the Supplier.
1.3 “Event of Default” means an event specified in clause 6.1.
1.4 “Goods” means any goods provided to the Customer by the Supplier including but not limited to fruit and fruit products.
1.5 “Invoice” means an invoice issued by the Supplier to the Customer.
1.6 “Supplier” means the Ffowcs Williams Limited or any agents, employees, franchises or sub-contractors thereof.
1.7 “Terms and Conditions” means these terms of trade.
2. ACCEPTANCE OF TERMS AND CONDITIONS
2.1 Without limitation, any of the following done by or on behalf of the Customer shall constitute a binding contract and acceptance of these Terms and Conditions:
(a) express or implied acceptance of any Quote;
(b) acceptance of any Goods;
(c) the giving of any instructions to the Supplier that are acted upon; or
(d) any express or implied authority given to the Supplier to provide Goods to the Customer.
3. CUSTOMER INFORMATION
3.1 The Customer authorises the Supplier to collect such commercial, financial and personal information about the Customer as is necessary for assessing the credit worthiness of the Customer or enforcing the Supplier’s rights under these Terms and Conditions and further authorises the Supplier to disclose such information to other parties for those purposes.
3.2 Where the Customer is a natural person, the authority given pursuant to clause 3.1 shall constitute sufficient authority for the purposes of the Privacy Act 1993 and the Customer acknowledges that he or she has a right to access the information and request corrections to it.
4. RESERVATION OF TITLE AND LIABILITY FOR PAYMENT
4.1 Payment for Goods supplied by the Supplier is due on the Due Date unless otherwise approved in writing by the Supplier. The Supplier may in its sole discretion decide that no Goods shall be supplied to the Customer until payment is received by the Supplier in advance of supply of the Goods.
4.2 Property and ownership in any Goods will not pass to the Customer but will remain with the Supplier until payment in full of the purchase price of the Goods and all other amounts owing to the Supplier by the Customer and all Goods shall be subject to a purchase money security interest.
4.3 Risk in the Goods shall pass at the time of delivery.
4.4 If payment for any Goods is not made by the Customer to the Supplier in full by the Due Date, the following provisions shall apply:
(a) The Customer shall deliver the Goods to the Supplier on demand. In the event that the Customer does not comply with a demand immediately upon receipt or deemed receipt of the demand, the Supplier shall be entitled to enter upon the Customer's premises at any time and do all things necessary to take possession of the Goods. The Customer hereby grants permission and an irrevocable licence to the Supplier to enter upon the premises where the Goods shall be for the purpose of doing anything necessary to take possession of the Goods;
(b) The Customer will pay interest on all amounts owing to the Supplier from the Due Date to the date or dates of payment at the rate of the Supplier’s then current bank overdraft rate plus 5% or such lesser rate as the Supplier may accept in lieu thereof; and
4.5 The Customer will be responsible for all costs incurred by the Supplier in exercising its rights under the Terms and Conditions including, but not limited to, debt collection costs and legal fees properly incurred by the Supplier in seeking or obtaining recovery of amounts owing by the Customer to the Supplier.
4.6 Notwithstanding any request by the Customer, any payment received by the Supplier may be appropriated by the Supplier to discharge such liability of the Customer to the Supplier as the Supplier sees fit.
5.1 Quotes are valid for 14 days from the date of the Quote.
5.2 the Supplier reserves the right by notice to the Customer to alter or amend any Quote before receipt by the Supplier of acceptance of the Quote by the Customer.
5.3 the Supplier reserves the right, by notice to the Customer, to alter any Quote at any time prior to the supply of Goods and/or Services where the alteration is due to a increase in the cost to the Supplier of any Goods that is beyond the control of the Supplier.
6.1 The following events shall constitute an Event of Default:
(a) The failure to make payment by the Due Date;
(b) The Customer enters into an agreement for the sale or proposed sale of its business or assets;
(c) The Customer commits a breach of any of the Terms and Conditions and the Customer fails to remedy the breach within 7 days of receiving notice from the Supplier specifying the breach; and
(d) The Customer is adjudicated bankrupt, or a receiver, liquidator or official assignee, administrator or statutory
manager is appointed to the Customer or its business or assets, or any part of its assets, or the Customer is unable to pay its debts when due within the meaning of the Companies Act 1993, or the Supplier, acting reasonably, believes the Customer is likely to become unable to pay its debts when due, or execution of judgments for amounts over the sum of $10,000 is levied against it and not discharged within thirty (30) days or within the terms of any arrangement made with the judgment creditor, whichever is the later.
6.2 Upon the occurrence of an Event of Default any amounts currently outstanding shall become immediately due and the Due Date for all amounts shall be deemed to the earlier of the actual Due Date or the date that the Event of Default occurs.
7. CANCELLATION AND WITHDRAWAL OF ORDERS
7.1 The Customer may not defer or cancel an order once accepted by the Supplier or once a Quote has been accepted without the Supplier’s consent in writing and with any request for an amendment, deferment or cancellation, the Customer must provide the Supplier with 7 days notification in advance.
7.2 The Customer shall be responsible for and agrees to indemnify the Supplier for all costs incurred by the Supplier as a result of the Customer cancelling an order or the suspension of the provision of Goods as a result of the occurrence of an Event of Default.
7.3 In the event that the provision of Goods to the Customer is cancelled, suspended or terminated for any reason the Supplier shall have no responsibility whatsoever for any loss or damage of any kind which may result directly or indirectly from such cancellation or suspension or from any recovery of Goods pursuant to the provisions of these Terms and Conditions.
8. LIMITATIONS ON LIABILITY
8.1 The Supplier's liability for damages arising out of or in connection with any contract for the sale of Goods to the
Customer, in tort or otherwise will be limited to claims in relation to Goods of insufficient quality as set out in this clause
8.2 To the full extent permitted by law:
(a) Unless expressly detailed by the Supplier in a Quote or invoice in respect of any Goods, the Supplier gives no
condition or warranty whatsoever as to the suitability or fitness of the Goods for any particular use or purpose and the description of the Goods in any contract or other document shall not import any such condition or warranty on the part of the Supplier;
(b) It is the responsibility of the Customer to inspect the Goods and satisfy himself as to the condition, quality, suitability and fitness of the Goods prior to the use or re-sale of the Goods. The Customer shall be deemed to have inspected the Goods and the Customer shall be deemed to have knowledge of any defect in the Goods that could have been discovered by inspection (“discoverable defect”). Where the Goods have a discoverable defect the Supplier’s liability shall be limited to the cost of the Goods.
(c) The Supplier assumes no liability (whether in tort, negligence or otherwise) for any technical advice or assistance given or the results obtained therefrom and any such advice is given and accepted at the Customer’s risk;
(d) Except as set out in clause 8.2(b) the Supplier shall be under no liability whatsoever for any discoverable defects in the Goods or in any part thereof whether due to design, workmanship or materials or to any cause whatsoever.
8.3 Where the Customer accepts Goods that the Customer knows, suspects, should have known or is deemed to have known pursuant to clause 8.2(b) are of unsuitable quality, the Customer indemnifies the Supplier in respect of any claims against the Customer or the Supplier by any party arising out of the quality of such Goods.
8.4 Any claims for any shortfall in or loss or damage to or in respect of Goods that are non-conforming, defective or of unacceptable quality, to the extent permitted by law must be fully documented and referred to the Supplier’s representative with whom the Customer has customary contact. Acceptance of any items will not constitute acceptance of claims. All items will be subject to inspection by the Supplier before credit will be considered.
8.5 To the extent permitted by law, the Supplier shall have sole right to decide whether Goods are of sufficient quality and the Supplier’s liability (if any) in respect of claims under any contract arising hereunder, tort or otherwise shall be limited (at the Supplier’s option) to the replacement of the Goods or the supply of equivalent Goods or the payment of the cost of replacing the Goods or of acquiring equivalent Goods.
8.6 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Goods from the Supplier for business purposes in terms of sections 2 and 43 of that act.
8.7 So far as the law permits, the Supplier shall not be liable in any way whatsoever for any indirect or consequential loss or loss of profit arising from contract or otherwise including in particular, but not limited to, any loss by reason of delay, defective or faulty Goods, negligence or any act or matter or thing done, permitted or omitted by the Supplier and the Customer shall have no rights to off-set claims against the invoiced prices for Goods under any circumstances.
8.8 If, contrary to the disclaimer of liability contained in these Terms and Conditions the Supplier is forced or deemed to be liable, following or arising from the supply of Goods to the Customer, then such liability is limited in aggregate to the value of the Goods supplied.
9. WARRANTY AS TO INFORMATION
9.1 The Customer and each of the signatories to this form on behalf of the Customer hereby warrant to the Supplier
jointly and severally that all the information provided to the Supplier in or in connection with any Goods to be provided by the Supplier or otherwise are true and correct and hereby jointly and severally indemnify the Supplier from and against all loss, claims, demands and costs occasioned as a result of such information not being correct in any particular. The Customer further undertakes to notify the Supplier of any change in its circumstances, which renders any information provided to the Supplier likely to be inaccurate, misleading or obsolete.
9.2 The Customer acknowledges that it has received, read and understood a copy of these Terms and Conditions.
9.3 In the event that at any time due to any circumstance including, but not limited to, pressures of trading, adverse
marketing conditions, financial pressure from lenders, failure to pay rent, the failure to pay taxation, internal conflicts or any other cause, there is reason for the Customer or any of its officers or others being signatories to this form, to suspect that the Customer may be or may become unable to pay its debts when due within the meaning of the Companies Act 1993, or may be adjudicated bankrupt or have a receiver, a liquidator or official assignee, administrator or statutory manager appointed to the Customer then the Customer will notify the Supplier immediately.
10. EXCLUSIONS AND VARIATIONS
10.1 The Supplier shall have the right to vary or amend any of the provisions of these Terms and Conditions from time to time. The most current version of the Terms and Conditions are located on The Suppliers website at www.ffowcs.co.nz. Any Goods provided by the Supplier to the Customer after the date of a variation shall be deemed to be provided subject to the Terms and Conditions as varied.
11.1 The Customer grants a security interest under the Personal Property Securities Act 1999 (“PPSA”) over any Goods supplied by the Supplier to the Customer. The Customer shall at the Supplier’s request, promptly execute any document, contract, agreement, deed or other action as the Supplier may require to ensure that any security interest created constitutes a perfected security interest over the Goods.
11.2 The Customer waives any right to receive a verification statement in respect of any financing statement or financing change statement relating to the security interest under PPSA.
11.3 Nothing in sections 114(1)(a), 117(1), 133 and 134 of the PPSA shall apply to these Terms and Conditions. The Customer’s rights as a debtor in sections 116, 119, 120(2), 121, 125-127, 129 and 132 of the PPSA shall not apply to these Terms and Conditions.
12.1 All notices authorised or required to be made under these Terms and Conditions shall be sent by email transmission, delivered personally or sent by prepaid mail at such address as each party may from time to time notify to the other parties. All notices shall be deemed to have been received the day they are sent except where sent by post that shall be deemed to have been received two (2) days after the date of posting.
Entire Agreement and Waiver
12.2 Save as specifically and expressly contemplated in these Terms and Conditions no provision hereof shall be changed, waived or modified without the express written agreement of the Supplier.
12.3 These Terms and Conditions embody the entire agreement of the Customer and the Supplier in respect of the ordering, supply, delivery of and payment for Goods, and any order received by the Supplier from the Customer shall be deemed to incorporate these Terms and Conditions notwithstanding any purported change to the Terms and Conditions specified by the Customer.
12.4 Any waiver or failure to execute any rights by the Supplier shall not be deemed a waiver of any further or other right of the Supplier in respect of the Customer.
12.5 The Customer shall not be entitled to rely upon any statement of any kind made by a person including a representative or agent of the Supplier, which include a representation of any kind, which contradicts or is contrary to these Terms and Conditions.
12.6 The Supplier and the Customer agree that:
(a) All the provisions of these Terms and Conditions are reasonable in all the circumstances and each provision is and will be deemed to be severable and independent; and
(b) If any provision hereof is found by any Court of competent jurisdiction to be invalid, illegal or unenforceable in any respect the validity, legality and enforceability of the remaining provisions will not be affected and the invalid, illegal or unenforceable provision shall be severed from this document it being the intention of the parties that had they known that any such provision would be invalid, illegal or unenforceable in any respect they would have agreed upon and accepted the remaining Terms and Conditions hereof.
Power Of Attorney
12.7 The Customer hereby irrevocably appoints each trustee of the Supplier at any time and from time to time jointly and severally as its attorney in the event of default by the Customer in the payment of any monies due and owing by the Customer to the Supplier and that default continuing for more than 14 days after due date for payment for the purpose of taking possession of the Goods of the Supplier held by the Customer or on the Property and disposing of such Goods owned by it to the extent necessary to recover any monies owing to the Supplier by the Customer and any costs incurred by the Supplier in connection with such recovery.
12.8 These Terms of Trade will be interpreted in accordance with applicable New Zealand legislation, which will have exclusive legal jurisdiction over any dispute in relation to the products and/or services or these Terms of Trade. If a dispute arises that cannot be amicably resolved to the satisfaction of all parties to extent that requires court action, only New Zealand courts are deemed to have the jurisdiction to interpret and/or enforce these terms of trade.
12.9 Headings in these Terms and Conditions are for convenience only and are not to be taken into account in interpretation of this document.