Terms of Trade (Wholesale)

Terms of contract

  • Any Goods supplied by us to you shall be subject to these Terms unless we agree in writing to change them. If you accept Goods from us, that action by you will be deemed to be acceptance of these Terms, despite anything that may be stated to the contrary in your enquiries or your order.
  • We may review these Terms at any time. Any change will take effect from the date we notify you of the change.
  • All other terms, unless agreed to in writing, are excluded (to the extent permitted by law).

Price

  • The price for Goods will be either as quoted to you in writing or, if no written quotation is provided, as set out in our standard price list applying at the time of your order.
  • Prices for the Goods are subject to change without notice.
  • We may withdraw a quotation before it is accepted and, in any event, a quotation will lapse, without notice, 30 days after it is given.
  • Unless otherwise agreed in writing, all prices are exclusive of packaging, freight, insurance and delivery charges and GST and other government duties, levies or taxes in respect of the Goods. These will be charged at the rates applying at the time of delivery.

Payment

  • Unless we have agreed in writing to extend credit to you, you must pay 50% of the purchase price of the Goods (inclusive of GST) and all associated costs on placement of the order and you must pay for Goods in full before delivery.
  • Where we have agreed to extend credit to you, you must pay for Goods in full, without deduction or set off, by the 20th day of the month following the date of invoice. Your payment is made only when funds have fully cleared through the bank system into our bank account.
  • If full payment for the Goods is not made by the due date, then without prejudice to any other rights or remedies available to us:
    • we may cancel or suspend the delivery of further Goods;
    • we may charge interest on overdue monies on a daily basis at 12% per annum above the current overdraft rate charged by our bankers at that time, and interest shall continue to accrue both before and after judgment; and
    • you will be responsible for all costs (including legal costs on a solicitor/client basis) incurred by us in recovering such monies.
  • We may accept and apply payments from you in respect of any indebtedness, and we will not be bound by any conditions or qualifications attaching to the payments.
  • Where we have agreed to extend credit to you, we may, from time to time at our discretion, vary your credit limit with us. If a purchase of Goods would exceed your current credit limit, we may require payment in cash of the excess before delivery of them.
  • Despite clause 1 above or any agreement to the contrary, all payments shall become immediately due and payable if we reasonably believe that the information which you have given us in your credit application is not correct or no longer correct, or if you default under any agreement with us, become insolvent or commit any act of bankruptcy, a receiver, liquidator or statutory manager is appointed over any of your assets or undertaking or you make or attempt to make an arrangement or composition with your creditors.

Ownership

    • Ownership in the Goods shall not pass to you at the time of delivery, but will remain with us until we have received full payment, in cash or cleared funds, of all monies owing by you to us.
    • Until all such monies have been paid:
      • you will keep the Goods separate from any other goods in your possession, and properly stored, protected and insured, and identified as our property;
      • all sums received from any insurance claim made in respect of loss of or damage to the Goods shall be treated as if they were proceeds of sale and held by you on the same terms as those set out in clause 4.2(d) below, and you will also hold on trust for us and, if required by us, forthwith assign to us the benefit of any insurance claim made in respect of the Goods;
      • if the Goods are mixed with, or incorporated or processed by you into other goods, those other goods shall be separately stored and marked so as to be identifiable as being made from or with the Goods;
      • where the Goods are sold to you as inventory for resale, you may resell them in the normal course of your business at full market value, provided that (i) the resale shall be as principal in relation to your sub-buyer but, as between you and us, you will sell as our fiduciary agent and bailee and (ii) you hold the proceeds of the resale on trust for us, and pay them into a separate bank account without mixing them with other monies; and
      • we may, at any time, require you to deliver the Goods (which have not been resold) to us and, if you fail to do so forthwith, our employees and agents may enter any premises where the Goods might be stored and recover them, and you agree to indemnify us, on demand, against any liability incurred by us in our exercise of this right.
    • Risk and delivery
      • Delivery of the Goods will take place when they are received by a carrier for delivery to you, or the time they are received by you or your agent, whichever is earlier. When you ask us to deliver Goods directly to another person, that person takes possession of the Goods for you as your agent.
      • We will make every effort to ensure delivery of Goods is on time. However, we shall not be liable to you for any loss, damage, cost or expense arising in any way from any failure to deliver on a specified date or within a specified period, however that failure was caused.
      • Despite clause 4 above, risk in respect of the Goods shall pass to you on delivery in accordance with clause 1 above. You are responsible for insurance of the Goods from that time.
      • Without limiting the previous provisions of this clause 5, all claims for shortages or delivery damage must be made to the carrier and us within seven days after delivery. If you fail to notify us within seven days you will be deemed to have accepted the Goods.

  • Returns and cancellation
    • Goods may be returned for credit only if we have agreed in writing, and they are received by us at our premises where they were despatched from within 14 days after delivery and in the same condition as they were delivered to you. Returned Goods must be sent at your expense, with a copy of the original packing slip or invoice.
    • You may not cancel an order for Goods, wholly or partly, without our written consent. As a condition of giving our consent, we may require reimbursement of any costs (including materials, handling fees and labour) incurred by us in connection with the order up to the date of our consent.
    • We may cancel delivery of Goods before delivery by giving written notice without liability, except we will promptly repay you any sums paid in respect of the price of the Goods.
    • In addition to our rights under clause 3(a) above, we may cancel or suspend an order for Goods, wholly or partly and without liability to you, in any of the circumstances set out in clause 3.6 above or if fulfilling the order becomes impractical or uneconomic due to any cause beyond our control.
  • Consumer Guarantees Act 1993
    • If the CGA applies, these Terms shall be read subject to your rights under the CGA.
    • Where you are acquiring the Goods for the purposes of a business (as provided in sections 2 and 43 of the CGA), the CGA shall not apply.
    • Where clause 7.2 above applies and you are acquiring the Goods for the purposes of resale, your terms of trade applying to the resale (and, if your customers acquire the Goods for the purposes of resale, their terms of trade and the terms of trade of each other person in your distribution chain) must include a provision having the same effect as that clause. You agree to indemnify us, on demand, against any liability under the CGA as a result of any failure by you, your customers or any other person in your distribution chain to include such a provision.
  • Warranties and liability
    • You must inspect Goods on delivery.
    • We shall not be liable for any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow our instructions, incorrect storage, misuse, or any alteration or repair not authorised by us.
    • To the fullest extent permitted by law:
      • we make no guarantee that Goods are suitable for any particular purpose;
      • you acknowledge you have bought the Goods relying upon your own skill and judgement, and have not relied on any representation made by us;
      • all warranties, representations, conditions or obligations imposed or implied by law statute or otherwise are excluded in relation to the Goods;
      • without limiting any other clause in these Terms, our total liability for all claims against us for Goods shall not exceed the amount paid by you for the Goods which give rise to such claim; and
      • all liability for any loss of profits, business, anticipated savings or any other economic loss or indirect, special or consequential loss or damage of any kind is expressly excluded.
    • You indemnify us against any costs (including on a solicitor to own client basis), claims, demands, actions and liabilities which we may incur or suffer arising out of any failure of you to comply with your obligations under these Terms.
  • Personal Property Securities Act 1999
    • You acknowledge and agree that, by accepting these Terms, you grant us a security interest over the Goods and their proceeds (by virtue of the retention of title in clause 4 above).
    • You undertake to:
      • do all acts and provide us on request all information we require to register a financing statement or financing change statement on the Personal Property Securities Register; and
      • advise us immediately in writing of any proposed change in your name or other details on the Personal Property Securities Register.
    • You:
      • waive your right to receive a verification statement in respect of any financing statement or financing change statement relating to the security interest;
      • waive your rights and, with our agreement, contract out of your rights under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA; and
      • agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms and, with our agreement, contract out of such sections.
    • Unless the context otherwise requires, the terms and expressions used in this clause 9 have the meanings given to them in, or by virtue of, the PPSA.
  • Privacy Act 1993
    • You and any guarantor (if relevant) authorise us to collect and hold personal information from any source we consider appropriate to be used for credit, administration, service and marketing purposes. You further authorise us to disclose personal information held by us for these purposes to any other person.
    • You understand that you have a right of access to, and may request correction of, personal information held by us about you.
  • Intellectual property
    • Neither we nor our suppliers transfer to you any right, title or interest in any copyright, trade marks, patents or other intellectual property rights in or relating to the Goods.
    • You warrant that any designs, drawings or specifications which you provide to us will not infringe any intellectual property rights of any third party, and you agree to indemnify us, on demand, against any liability we may suffer as a result of our use of those designs, drawings and specifications.
  • General terms
    • Amendments: We may amend these Terms from time to time by notice to you in writing (including, without limitation, by email, letter, fax, text, or other electronic message). Such changes may be provided in the form of a copy of, or a link to, a revised version of these Terms. The revised Terms will apply to all orders placed after such notification or the date on which we state the revised Terms will be effective from (whichever is the latter).  Your continued trading with us indicates your continued acceptance of these Terms (including any changes to them notified).
    • Waiver: No delay or failure by us to exercise our rights under these Terms operates as a waiver of those rights. A partial exercise of those rights does not prevent their further exercise in the future.
    • Severability: If a court decides that part of these Terms is unenforceable, the part concerned shall be deleted from the rest of these Terms, which will then continue in force.
    • Law: These Terms will be interpreted in accordance with and governed by the laws of New Zealand, and the New Zealand Courts will have non-exclusive jurisdiction in respect of all matters between us. The parties hereby agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this contract.
  • Defined terms and interpretation
    • In these Terms, the following words have the following special meanings:

“CGA” means the Consumer Guarantees Act 1993;

“Goods” means all products supplied by us to you at any time, and includes any goods described by item or kind on any relevant order form, packing slip or invoice, on the basis that each such order form, packing slip or invoice shall be deemed to be incorporated in and form part of these Terms ;

“GST” means goods and services tax;

“PPSA” means the Personal Property Securities Act 1999;

“Terms” means these terms of trade (as amended from time to time);

“we“, “our“, “us” means Nano-Care New Zealand Limited and any of its related companies (as defined in the Companies Act 1993) from time to time; and

“you” means the customer named in the attached invoice.

  • For convenience, these Terms have been grouped under different headings, but the headings do not affect the meaning of these Terms.
  • In these Terms references to any law include any changes to that law which are in force from time to time.
X