In this Agreement unless the context otherwise requires:
- Company means Botanical Ingredients Limited.
- Buyer means the person or entity buying the goods from the Company.
- Products mean the products being purchased by the Buyer from the Company.
- Contract means the contract between the Company and the Buyer for the purchase of the goods.
- Date of the contract means where the contract arises from a quotation given by the Company,
i) the date of acceptance of the order by the Company; or ii) Where the contract arises from a quotation given by the Company, the date upon written notification of acceptance of the quotation is received by the Company.
- Contract price means the price of goods as agreed between the Company and the Buyer.
- Person includes a corporation, association, firm, company, partnership, trust or individual.
- Quotation shall mean the price on offer for a fixed term.
- Manager is the Company’s appointed decision maker.
- PPSA means the Personal Property Securities Act 1999.
The Buyer may request a Quotation from the Company who will set out the price and quantity of the
Goods to be supplied. If the Quotation is acceptable to the Buyer, the Buyer may place an order within
the period of Validity.
Acceptance of the quotation via Xero or any instruction is received by the Company from the Buyer for the supply of products, it shall constitute acceptance of the terms and conditions contained herein. Upon acceptance of these terms and conditions by the Buyer, the terms and conditions are definitive and binding.
4. Terms and Conditions
This agreement and any subsequent agreement issued by the Company shall apply to all orders for the goods and the services supplied to the Buyer after the date and time at which these conditions are first delivered or sent by email or available through the Company’s online invoicing or otherwise brought to the notice of any employee, staff member or representative of the Buyer. It shall be the Buyer’s responsibility to ensure these conditions are promptly brought to the attention of the appropriate staff of the Buyer and, accordingly, any order made by the Buyer after the date and time described above in this clause shall be deemed to be an acceptance of these conditions.
5.1.The Price shall be as indicated on invoices provided by the Company to the Buyer in respect of products and/ or services supplied; or
5.2.The Price shall be the Price of the Company’s current Price at the date of delivery of any goods.
5.3.Time for payment for the products shall be of the essence and will be stated on the invoice or quotation. If no time is stated then payment shall be prior to dispatch.
5.4. The Buyer agrees that the cost price shall be determined by the Company.
5.5.The Company reserves the right to implement a surcharge for any alterations after the order has been placed.
6. Passing of Risk & Delivery
6.1.Responsibility and risk in the products shall pass to the Buyer upon delivery. Delivery is deemed to be complete upon signature or if the customer has granted “Permission to leave” upon delivery to the specified location.
7. Damage, etc.
7.1. Inspection of the goods shall be made by the Buyer immediately upon delivery and in the event of damage, incorrect execution, shortage or non delivery, the Buyer shall notify the company in writing within 5 days of receipt of goods, and shall similarly notify the carrier in the case of damage, shortage or non delivery of goods.
7.2.The Company shall not be required to accept claims for damage, shortage or non-delivery unless a claim in writing is lodged with it by the Buyer in accordance with this clause.
8. Payment, Late Payment, Default of Payment and Consequences of Default of Payment
8.1.The method of payment will be made by cash, or by cheque, or by bank cheque, or by direct credit or by any other method as agreed to between the Buyer and the Company.
8.2.Subject to any provision to the contrary in the Agreement, payment (being cash unless otherwise arranged in advance and confirmed in writing by the company) shall be made prior to dispatch of the Goods,.
8.3. Where payment terms are agreed, the agreed payment terms will be noted on the invoice. Late payment shall incur interest at the rate of 2% per month. This shall be payable on any monies outstanding under the Agreement from the date payment was due until the date payment is received by the Company, but without prejudice to the Company’s other rights or remedies in respect of the Buyer’s default in failing to make payment on the due date.
8.4. The Buyer agrees to pay all collection costs incurred by the Company in recovering any overdue monies until those monies are paid in full.
8.5. Without prejudice to any other remedies the Company may have, if at any time the Buyer is in breach of any obligation (including those relating to payment), the Company may suspend or terminate the supply of goods to the Buyer and any of its other obligations under the Agreement. The Company will not be liable to the Buyer for any loss or damage the Buyer suffers because the Company exercised its rights under this clause.
8.6. In the event that:
a. any money owing to the Company becomes overdue, or in the Company’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 an assignment for the benefit of its 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 Company’s other remedies at law, the Company shall be entitled to cancel all or any part of any order of the Buyer that remains unperformed in addition to, and without prejudice to any other remedies; and all amounts owing to the Company shall, whether or not due for payment, become immediately payable.
9.1.The Agreement constitutes a security interest in the goods supplied by the Company to the Buyer for the purposes of the PPSA as security for payment by the Buyer of all amounts due under the Agreement, including any future amounts.
9.2.The Buyer agrees to promptly execute and deliver to the Company all assignments, transfers and other agreements and documents and do anything else which the Company may deem appropriate to perfect the Company’s security interest over the Buyer, or obtain the priority required by the Company or register (and renew registration) a financing statement for a security interest in favour of the Company.
9.3.To the extent that Part 9 of the PPSA applies, the Buyer agrees that the provisions of sections 114(1)(a), 120, 122, 133 and 134 of the PPSA which are for the Buyer’s benefit, or place any obligations on the Company in the Buyer’s favour, will not apply; and where the Company has rights in addition to those in Part 9 of the PPSA, those rights will continue to apply.
9.4.To the extent that Part 9 of the PPSA applies, without limiting anything in the previous paragraph, the Buyer hereby waives its rights under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA, and its rights to receive a copy of a verification statement under section 148 of the PPSA in respect of any financing statement or financing change statement registered by the Company.
9.5.The Buyer agrees to treat the security interest in the goods as a continuing and subsisting security with priority over a registered general security interest and any unsecured creditors, regardless of whether the goods have been consumed at any time before payment has been made for them.
10. Governing laws
These Terms are governed by, and are to be construed in accordance with the laws of New Zealand and the Buyer agrees to submit to the non exclusive jurisdiction of the Courts of New Zealand.
11. Force Majeure
Neither party breaches this Agreement if its breach is caused by Force Majeure
“Force Majeure Event” means the occurrence of:
(a) an act of war (whether declared or not), hostilities, invasion, act of foreign enemies, terrorism or civil disorder;
(b) ionising radiations, or contamination by radioactivity from any nuclear fuel, or from any nuclear waste from the combustion of nuclear fuel, radioactive toxic explosive or other hazardous properties of any explosive nuclear assembly or nuclear component thereof;
(c) pressure waves from devices travelling at supersonic speeds or damage caused by any aircraft or similar device;
(d) a strike or strikes or other industrial action or blockade or embargo or any other form of civil disturbance (whether lawful or not), in each case affecting on a general basis the industry related to the affected Services and which is not attributable to any unreasonable action or inaction on the part of the Company or any of its Subcontractors or suppliers and the settlement of which is beyond the reasonable control of all such persons;
(d) specific incidents of exceptional adverse weather conditions in excess of those required to be designed for in this Agreement which are materially worse than those encountered in the relevant places at the relevant time of year during the twenty (20) years prior to the Effective Date;
(e) tempest, earthquake or any other natural disaster of overwhelming proportions; pollution of water sources resulting from any plane crashing;
(f) discontinuation of electricity supply, not covered by the agreement concluded with the Company’s electrical supply company; or
(g) other unforeseeable circumstances beyond the control of the Company or the Buyer against which it would have been unreasonable for the affected party to take precautions and which the affected party cannot avoid even by using its best efforts, which in each case directly causes either party to be unable to comply with all or a material part of its obligations under this Agreement;
(1) Neither Party shall be in breach of its obligations under this Agreement (other than payment obligations) or incur any liability to the other Party for any losses or damages of any nature whatsoever incurred or suffered by that other (otherwise than under any express indemnity in this Agreement) if and to the extent that it is prevented from carrying out those obligations by, or such losses or damages are caused by, a Force Majeure Event except to the extent that the relevant breach of its obligations would have occurred, or the relevant losses or damages would have arisen, even if the Force Majeure Event had not occurred (in which case this Clause shall not apply to that extent).
(2) As soon as reasonably practicable following the date of commencement of a Force Majeure Event, and within a reasonable time following the date of termination of a Force Majeure Event, any Party invoking it shall submit to the other Party reasonable proof of the nature of the Force Majeure Event and of its effect upon the performance of the Party’s obligations under this Agreement.
(3) The Company shall, and shall procure that its Subcontractors shall, at all times take all reasonable steps within their respective powers and consistent with Good Operating Practices (but without incurring unreasonable additional costs) to:
(a) prevent Force Majeure Events affecting the performance of the Company’s obligations under this Agreement;
(b) mitigate the effect of any Force Majeure Event; and
(c) comply with its obligations under this Agreement.
The Parties shall consult together in relation to the above matters following the occurrence of a Force Majeure Event.
(4) Should paragraph (1) apply as a result of a single Force Majeure Event for a continuous period of more than 180 days then the parties shall endeavour to agree any modifications to this Agreement (including without limitation, determination of new tariffs (if appropriate) which may be equitable having regard to the nature of the Force Majeure Event and which is consistent with the Statutory Requirements.
12. Dispute resolution
The Company will endeavour to resolve any dispute between the Buyer and itself without the need for Court proceedings. Any such attempt is without legal prejudice.
13. Reservation of title
Ownership and title of the goods remains with The Company until the purchase price and all other monies owing by the Buyer, under this Agreement or any other contract to the Company, have been paid in full.
The Company warrants that it will make good any defects in the goods, if written notice of the claim is received by the Company within seven (7) days from the date the goods were delivered. No claim shall be accepted under such warranty if the defective goods have been modified or incorrectly stored, maintained or used. If the Company elects to replace any defective goods, such work shall be undertaken at such place as the Company may reasonably specify and the Company shall be responsible at its cost and risk for shipment of the defective goods to the place specified.
The Company shall not be liable for any loss of any kind whatsoever suffered by the Buyer as a result of any breach of any of the Company’s obligations under the Agreement, including any cancellation of the Agreement or any negligence on the part of the Company, its servants, agents or contractors, nor shall the Company be liable for any loss, damage or injury caused to the Buyer’s servants, agents, contractors, buyers, visitors, tenants, trespassers or other persons. The Buyer shall indemnify the Company against any claim by any such person.