Terms of Trade
Westland Smith Partnership – Trading as Westlands Honey
TERMS OF TRADE
In these Terms of Trade we have used “we”, “us” and “our” to refer to Westland Smith Partnership trading as Westlands Honey and “you” to refer to our customer. By ordering goods from us you agree to these Terms.
1.1 Unless we agree otherwise, Goods will be shipped to the address supplied at the time of the customer ordering.
1.2 We assume no liability or responsibility for incorrectly entered address’ resulting in the Goods being delivered to the wrong address.
1.3 No delivery will be made until the Goods have been paid for in full.
2. TITLE AND RISK
2.1 We shall retain title to Goods we supply until they have been paid for in full and you have performed all your other obligations under these Terms.
2.2 Risk in all Goods passes to you when the Goods are shipped. You assume all risk for any damage to the Goods.
3.1 All prices are excluding GST and other taxes and duties, unless expressly agreed in writing.
3.2 You shall be responsible for any taxes, duties or charges associated with the purchase and/or delivery of the Goods. It is your responsibility to evaluate this before ordering the Goods.
3.3 Our prices are subject to change without notice.
4.1 You must pay for Goods at the time of purchase, unless we decide otherwise. 4.2 We are under no obligation to supply Goods to you on credit. If we grant you credit, you agree to pay our invoices by the 20th of the month following the date of the invoice.
4.3 You agree to give any securities as we may from time to time require, in the form required by us, and to comply with all of your obligations under those securities.
4.4 We may notify you at any time that we are going to stop supplying Goods to you on credit. This shall be without prejudice to your obligation to pay amounts owing.
4.5 All payments shall be made without set-off or deduction. Receipt of a cheque, bill of exchange, or other negotiable instrument will not constitute payment and you remain liable for payment until payment is received by us.
4.6 We may apportion payments to outstanding accounts as we see fit.
5.1 You will be in Default if:
(a) you fail to pay an amount due under these Terms by the due date for payment; or
(b) you commit a breach of any of your other obligations under these Terms, the Security or the terms of any other contract you have entered into, or enter into in the future, with us or one of our related entities; or
(c) you become insolvent, are wound up, have a receiver appointed, enter into any composition or arrangement with your creditors, do any act which would render you liable to be placed in liquidation or have a receiver appointed over your property, commit an act of bankruptcy, cease to be of full legal capacity, or die;
(d) Goods that we have retained title to are at risk; or
(e) an event or a series of events (whether related or not) occurs which, in our opinion, may cause a material adverse change in your ability to meet your obligations to us.
5.2 If you are in Default then we may, at our option, do any one or more of the following:
(a) charge you default interest at 2.5% per annum on any late payments calculated on a daily basis from the due date until the date payment is received; (b) require you to remedy the default in the manner and within a period that we tell you;
(c) require you to pay to us all amounts you owe us immediately;
(d) suspend or terminate your account with us;
(e) enforce security interests created by these Terms;
(f) exercise any rights that we have under these Terms or that are available to us at law.
5.3 We may suspend or terminate your account with us at any time in our sole discretion. If your account is terminated, you must immediately pay us any amount you owe us. Termination will not affect any of our rights that have arisen before termination.
6.1 The Consumer Guarantees Act 1993, the Fair Trading Act 1986, and other statutes may impose warranties, conditions or obligations upon us which cannot by law (or which can only to a limited extent by law) be excluded. Other than as expressly provided for in these Terms, we exclude all such imposed warranties, conditions or obligations to the extent permitted by law and exclude any warranty, condition or obligation imposed or implied under common law, equity or otherwise.
6.2 Where you acquire goods and/or services from us for the purposes of a business:
(a) the parties acknowledge and agree that: (i) you are acquiring the goods and/or services covered by these Terms for the purposes of a business in terms of sections 2 and 43(2) of the Consumer Guarantees Act 1993; (ii) the goods and/or services are both supplied and acquired in trade for the purposes of the Fair Trading Act 1986 and the parties agree to contract out of sections 9 (Misleading and deceptive conduct generally), 12A (Unsubstantiated representations), and 13 (False or misleading representations); and (b) you agree that all warranties, conditions, and other terms implied by the Consumer Guarantees Act 1993 or sections 9, 12A, and 13 of the Fair Trading Act 1986 are excluded from these Terms to the fullest extent permitted by law and the parties further acknowledge and agree that it is fair and reasonable that the parties are bound by this clause.
7. LIMITATION OF LIABILITY
7.1 We shall not be liable for any loss or damage or liability of any kind whatsoever (including consequential loss or lost profit or business) whether suffered or incurred by you or another person and whether in contract, or tort, or otherwise and whether such loss or damage arises directly or indirectly from Goods provided by us to you.
7.2 To the extent that we are liable for any reason for any loss suffered or liability incurred by you arising from any breach of these Terms or for any other reason, such liability is limited to the amount of the price of the Goods concerned. If Goods are returned by you, or if you make a claim in writing to us in relation to Goods provided, we may, in our discretion, repair or replace the Goods, or refund the price of those Goods to you, provided that:
(a) the Goods must be returned or the claim must be made in writing to us within 14 days of delivery or collection; and
(b) you must supply the date and order number relating to the Goods; and
(c) we must be given a reasonable opportunity to inspect the Goods.
8. PRIVACY OF INFORMATION
8.1 You authorise us:
(a) to collect, retain and use information about you from any person for the purpose of assessing your creditworthiness;
(b) to disclose information about you:
(i) to any person who guarantees, or who provides insurance, or who provides any other credit support, in relation to your obligations to us;
(ii) to such persons as may be necessary or desirable to enable us to exercise any power or enforce or attempt to enforce any of our rights, remedies and powers under these Terms.
9.1 Any notice may be given by phone, in person, posted, or sent by facsimile or email to you or where you are a company, to any of your directors.
10.1 You shall at all times treat as confidential all non-public information and material received from us and shall not publish, release, or disclose the same without our prior written consent. For clarity, confidential information includes any new Intellectual Property and prices.
11.1 You must pay our costs (including legal costs, as between solicitor and client) of and incidental to the enforcement or attempted enforcement of our rights, remedies and powers under these Terms.
12.1 These Terms are governed by the laws of New Zealand and, subject to clause 13, the parties submit to the exclusive jurisdiction of the Courts of New Zealand in respect of any dispute arising out of or in connection with these Terms.
13.1 Any claim or dispute arising under these Terms shall be determined by arbitration under the Arbitration Act 1996 if the parties are unable to resolve such dispute themselves within one (1) month of the dispute arising. However, nothing in this clause prevents either party from taking immediate steps to seek any equitable relief before the New Zealand courts.
14. FORCE MAJEURE
14.1 We shall not be liable for delay or failure to perform our obligations under these Terms if the cause of delay or failure is beyond our reasonable control.
15.1 These Terms replace any earlier representations, warranties, understandings and agreements (whether oral or written), and together with your Credit Application constitute the entire agreement between us and you relating to their subject matter.
15.2 You shall not transfer or assign your rights, powers or obligations under these Terms without our prior written consent.
15.3 If you have entered into these Terms as the trustee of a trust and you have no right to or interest in any of the assets of the trust except in your capacity as trustee of the trust, your liability shall be limited to the value of the assets of the trust which now or in the future are (or, but for your wilful neglect or default, would be) in the hands of the trustees for the time being of the trust. This clause does not limit any liability you have to us as a personal guarantor.
15.4 No failure or delay by us in insisting upon the strict performance of these Terms or exercising any right under these Terms will operate as a waiver of those matters.
15.5 We may change these Terms at any time. Any change applies from when it is published on our website www.westlandshoney.co.nz
16.1 In these Terms unless the context otherwise requires: “Goods” shall include any associated services that we supply. “Intellectual Property” means all intellectual property rights including, without limitation, copyright, patent and design rights, drawings, documents, data, ideas, procedures, calculations and all other statutory and common law rights and interests. “Security” means all existing and future security held by us that secures your obligations under these Terms.
16.2 The rule of construction known as the contra proferentem rule does not apply to these Terms.
16.3 Words importing the singular include the plural and vice versa.
16.4 Headings are for convenience only and do not form part of, or affect the interpretation of, these Terms.
16.5 References to a party include that party’s successors, personal representatives, executors, administrators and permitted assigns.
16.6 References to a statute include references to:
(a) regulations, orders, rules or notices made pursuant to that statute;
(b) all amendments to that statute and those regulations, orders, rules or notices, whether by subsequent statute or otherwise; and
(c) any statute passed in substitution of that statute.