1.1 “Seller means Streamland Honey Group Ltd, its successors and assigns or any person acting on behalf of and with the authority of Streamland Honey Group Ltd.
1.2 "Buyer" means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Buyer is a reference to each Buyer jointly and severally.
1.3 "Goods" means all Goods or Services supplied by the Seller to the Buyer at the Buyer’s request from time to time (where the context so permits the terms ‘Goods' or ‘Services' shall be interchangeable for the other).
1.4 "Price" means the Price payable for the Goods as agreed between the Seller and the Buyer in accordance with clause 4.
1.5 “Contract” means the contract between the Seller and the Buyer for the purchase of the Goods.
2.1 The Buyer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Buyer places an order for or accepts Delivery.
2.2 The Seller shall only supply the Goods to the Buyer on the basis that these terms and conditions shall be the conditions of the Contract, together with any terms and conditions contained in any quotation by the Seller or in the Seller’s confirmation of order, as the case may be, to the exclusion of all other terms.
The Seller’s confirmation of order or quotation and these terms and conditions shall prevail over any terms and conditions of the Buyer.
2.3 The Buyer agrees that the Seller may amend these terms and conditions at any time. If the Seller makes a change, then that change will take effect from the date on which the Seller notifies the Buyer of such change. The Buyer will be taken to have accepted such changes if the Buyer makes a further request for the Seller to provide Goods to the Buyer.
3.1 The Buyer acknowledges and agrees that:
a. Where applicable, the Seller will designate the geographic markets and/or types of consumers that the Goods are designed to be sold in; and
b. Any on-selling of the Goods by the Buyer to markets and/or consumers (including, but not limited to, on-selling from a website and/or any alternative online auction site) other than those they are designed for is not authorised by the Seller; and
c. Any on-selling of the Goods outside of the markets that the Seller has designed them for is at the sole risk of the Buyer in every respect.
3.2 The Buyer agrees that it will not alter the Goods (including, but not limited to their contents, labelling and packaging) unless expressly authorised to do in writing by the Seller.
4.1 The agreed price is based upon the rates and conditions ruling at the date of quotation. The Seller reserves the right to vary the agreed or quoted price in accordance with any variation in exchange rates, costs, labour, materials, transport freight and insurance, NZ duties, indirect taxes and other duties, costs and surcharges or other expenses incurred or arising due to circumstances beyond the control of the Seller between the date of quotation and the date of delivery.
4.2 All prices are exclusive of sales tax, GST or other taxes which if payable are to the Buyer’s account.
4.3 All bank charges are to the Buyer’s account.
5.1 Unless the Seller has agreed to extend credit to the Buyer, payment is to be made in advance at the time the order is placed by the Buyer. The Seller may retain the Goods or part of the Goods under a lien until the amount owing is paid in full.
5.2 Where the Seller has agreed to extend credit to the Buyer, payment is to be made in full without set off or deduction by the due date recorded on the invoice.
5.3 If the Seller does not receive payment in full, without set off or deduction, on or before the due date:
a. The Buyer must pay interest on the unpaid amount from the due date for payment until the actual date of payment at the Seller’s banker’s unsecured commercial overdraft rate plus 5% per annum charged on a daily basis, and a late payment administration fee of NZ$100 + GST; and
b. The Buyer will indemnify the Seller in respect of all costs, fees, damages and expenses incurred by the Seller as a result of the non payment, including but not limited to the costs of collecting the overdue amounts (including legal costs on a solicitor/client basis); and
c. The Seller may without limiting any other right or remedy, suspend or cancel further delivery of goods to the Buyer.
6.1 Delivery of the Goods is taken to occur at the time that the Seller (or the Seller's nominated carrier) delivers the Goods to the Buyer's nominated address even if the Buyer is not present at the address.
6.2 Any delivery time shall be approximate only and shall not be deemed to be of the essence of the Contract.
6.3 The Seller reserves the right to deliver by instalments and each instalment is deemed a separate Contract subject to the same terms and conditions herein.
6.4 Failure to make any delivery and/or defective delivery does not prejudice the right of the Seller to make subsequent deliveries, nor does it entitle the Buyer to refuse to accept the same or to terminate the Contract either as a whole or in part or to any right or claim for damages whether for delay, non-delivery or otherwise.
6.5 Any claims made by the Buyer in relation to errors, transit damage or short-delivery must be made in writing within three working days of delivery of those Goods. The Seller accepts no liability whatsoever for any claims made after this period.
7.1 If the Buyer cancels any order or refuses to accept all or any of the Goods in an order other than in circumstances permitted in these Terms of Sale, the Buyer will be liable for any resulting damage or loss suffered by the Seller. If the Goods have been or are in the process of being manufactured or produced specifically for the Buyer, the Buyer will pay to the Seller as liquidated damages the full Contract price of the Goods and any costs incurred by the Seller (including without limitation any GST) less the current scrap value of the Goods as reasonably determined by the Seller.
8. OWNERSHIP AND RISK
8.1 Where the Buyer has paid for the Goods in full at the time of order placement, the Buyer shall assume ownership of and risk in the Goods immediately.
8.2 Where the Seller has extended credit to the Buyer for purchase of the Goods, the Seller retains title to and ownership of the Goods until the Buyer has paid for the Goods in full. Risk in the Goods passes to the Buyer on Delivery as defined in clause 6.1.
8.3 The Buyer will ensure that all Goods which are at the Buyer’s risk but title of which has not passed, are insured to their fullest replacement value. The Buyer holds the benefit of the Buyer's insurance of the Goods on trust for the Seller and must pay to the Seller the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
8.4 Until ownership passes to the Buyer, the Buyer holds the Goods as fiduciary bailee and agent for the Seller. Unless otherwise notified in writing, the Buyer is authorised to sell the Goods, in the ordinary course of business. The Buyer irrevocably authorises the Seller or its agent to enter the Buyer’s premises to remove any Goods that are the property of the Seller. The Seller is not liable for any loss or damage caused or incurred by the Buyer as a result of the Seller exercising its rights under this clause.
9.0 PERSONAL PROPERTIES SECURITIES ACT 1999 (“PPSA”)
9.1 Upon assenting to these terms and conditions in writing the Buyer acknowledges and agrees that:
a. These terms and conditions constitute a security agreement for the purposes of the PPSA; and
b. The Seller retains a purchase money security interest in the Goods to secure payment of the purchase price of those Goods and all other Goods supplied by the Seller. The Seller’s security interest in the Goods extends to any proceeds, book debts and accounts receivable arising from the Buyer selling the Goods.
9.2 The Buyer undertakes to:
a. Sign any further documents and/or provide any further information that the Seller may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register (“PPSR”);
b. Indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement or financing change statement on the PPSR 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; and
d. Immediately advise the Seller of any material change in its business practices of selling the Goods that would result in a change in the nature of proceeds derived from such sales.
9.3 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.
9.4 The Buyer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
9.5 Unless otherwise agreed to in writing by the Seller, the Buyer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
9.6 The Buyer shall unconditionally ratify any actions taken by the Seller under clauses 9.1 to 9.5.
10. DELAY AND FAILURE TO PERFORM
10.1 The Seller is not liable for any failure or delay in supply, manufacture or delivery occasioned by any event or thing beyond the Seller’s reasonable control, including without limitation, strike, lockout, difficulty in procuring suitable materials, goods or substances required for manufacture, shortage of stock or labour, lack of skilled labour, delays in transit, legislative, government or other prohibitions or restrictions, fire, flood, hostilities or commotions.
10.2 If a failure or delay occurs as a result of the type specified in 10.1, the Seller may at its option either perform the Contract or so much of it that remains unperformed within a reasonable time after removal of the cause of failure or delay, or rescind the Contract to the extent that it remains unperformed, and the Seller will not thereby incur any liability of any sort whatsoever at the suit of the Buyer or any person claiming through or under the Buyer.
11.1 The Buyer shall inspect the Goods on delivery and shall within fourteen (14) days of such time (being of the essence) notify the Seller of any alleged defect 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 such notification if the Buyer believes the Goods are defective in any way. If the Buyer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage.
11.2 For defective Goods, which the Seller has agreed in writing that the Buyer is entitled to reject, the Seller's liability under 11.1 above is limited to:
a. The replacement or the repair of the defective Goods; or
b. Damages of an amount not exceeding the Contract price.
11.3 The Seller will select which of the options set out for a breach of warranty set out in 11.1.
12.1 The Seller excludes all statutory or implied conditions and warranties to the fullest extend permitted by law. The Goods are only warranted to the extent expressly specified by the Seller in writing.
12.2 The total liability of the Seller, whether in contract, tort or otherwise, for any loss, damage or injury arising directly or indirectly from any breach of the Seller’s obligations to the Buyer and any other person claiming under or through the Buyer, including any loss, damage or injury arising directly or indirectly from any defect in or non-compliance of the Goods, is limited to an amount no greater than the Contract price.
12.3 The Seller will not be liable for any consequential, indirect or special damage or loss of any kind whatsoever.
12.4 For the avoidance of doubt the Buyer acknowledges and agrees that the Seller will not be liable to the Buyer or to any third person for any for any loss, damage or injury whatsoever, whether direct or indirect, arising from any breach by the Buyer of Clause 3. Furthermore, the Buyer will indemnify the Seller in respect of all costs, fees, damages and expenses incurred by the Seller as a result of any contravention by the Buyer of Clause 3, (including legal costs on a solicitor/client basis).
13. ADVICE, INFORMATION AND DESCRIPTION
13.1 All advice and information in relation to the Goods, in whatever form it may have been given, is provided by the Seller gratuitously and without liability.
13.2 Any description of the Goods is given by way of identification only and the use of that description does not constitute a sale by description. The Buyer acknowledges that it alone is responsible for determining the fitness of the Seller’s Goods for the purpose for which the Buyer intends them. The Seller has no liability for any failure by the Goods to meet any fitness of use by the Buyer.
14. INTELLECTUAL PROPOERTY
14.1 The Buyer acknowledges and agrees that:
a. The sale and purchase of the Goods does not confer on the Buyer any license or rights under any Intellectual Property Rights that are the property of the Seller.
b. The Buyer shall in no way attempt to reproduce the Goods.
15. CONSUMER GUARANTEES ACT
15.1 The Buyer acknowledges that it is acquiring the Goods for business purposes and that guarantees set out in the Consumer Guarantees Act 1993 do not apply to the Contract.
15.2 The Buyer shall not, in relation to the supply by the Buyer of the Goods, give or make any undertaking, assertion, or representation in relation to the Goods without the prior approval in writing of the Seller, and the Buyer shall indemnify the Seller against any liability or cost incurred by the Seller as a result of any breach by the Buyer of this provision.
15.3 The Buyer shall, in relation to any supply of any of the Goods by the Buyer, contract out of the provisions of the Consumer Guarantees Act 1993 to the extent that the Buyer is entitled to do so under that Act and shall indemnify the Seller against any liability or cost incurred by the Seller under the Consumer Guarantees Act 1993 as a result of any breach by the Buyer of this provision.
16. USE OF INFORMATION
16.1 The Buyer agrees that the Seller may obtain information about the Buyer from the Buyer or any other person (including any credit or debt collection agencies) in the course of its business, and the Buyer consents to any person providing the Seller with such information.
16.2 The Buyer agrees that the Seller may give any information that it has about the Buyer relating to the Buyer’s credit worthiness to any other person, including any credit or debt collection agency, for credit assessment and debt collection purposes.
16.3 Where the information held by the Seller is personal information, the person to whom the information relates may access and request the correction of that information.
17 PERSONAL GUARANTEES / CHANGE OF CONTROL
17.1 In the case of a Company, the Directors of the Buyer do jointly and severally personally guarantee the due payment of all monies owed to the Seller.
17.2 The Buyer accepts that it is responsible for advising of any change of ownership, or control, or Directors and that the Buyer and its Directors remain liable for the debts in absence of such advice.
17.3 In addition no granting of time extension, waiver or neglect to sue on the part of the Seller shall impair this guarantee.
18.1 All the original rights, powers, exemptions and remedies of the Seller shall remain in full force notwithstanding any neglect, forbearance or delay in their enforcement. The Seller shall not be deemed to have waived any condition unless such waiver is in writing from the Seller and any such waiver shall apply to and operate only in a particular transaction, dealing or matter.
18.2 The Buyer is not entitled to assign all or any of his rights or obligations under the Contract without the prior written consent of the Seller.
18.3 The construction validity and performance of these terms of trade and all matters that arise from them are to be governed by and construed according to the laws of New Zealand and are subject to the exclusive jurisdiction of the Courts of New Zealand.
18.4 Any part of these conditions are severable and if any provision herein is held to be illegal or unenforceable for any reason, such illegality or unenforceability shall affect only that oration of these conditions which is in conflict and the remainder of these conditions shall remain in full force and effect.
18.5 The Buyer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so; and that it is not insolvent; and that this agreement creates binding and valid legal obligations on it.