Terms of Trade

Tasman Natural NZ Limited

Terms of Trade

1. Introduction and Definitions

1.1 The terms of trade set out below (Terms of Trade) govern the supply of all goods and services from Tasman Natural NZ Limited (the Company) to you (the Client).

1.2 The Client’s request for goods or services from the Company constitutes an agreement by the Client to be bound by these Terms of Trade.

1.3 In these Terms of Trade, references to ‘goods’ shall include any product, substance or material that is to be or has been (as the context requires) sourced, toll manufactured or processed in any manner by the Company at the request of the Client.

1.4 These Terms of Trade are paramount and, to the extent there is any conflict between the Terms of Trade and any invoice or other document relating to any goods (including any document produced by the Client), the Terms of Trade will prevail.

1.5 Nothing in the making or performance of these Terms of Trade creates the relationship of partnership, joint venture or agent and principal between the parties.  The relationship between the parties is the relationship of independent parties contracting for goods and services.

2. Prices

2.1 All prices quoted exclude GST and are in New Zealand dollars unless otherwise specified.

2.2 The Company reserves the right to require payment in advance for the supply of goods or services to the Client.

2.3 The Company reserves the right to change its prices from time to time without notice to the Client.

3. Terms of Payment

3.1 Payment by new clients is due in full upon delivery and/or completion of work until such time that an account is set up.

3.2 Payment of accounts is due on or before 30 days following the relevant invoice date.

3.3 Interest at 1.5% per month on the current balance may be charged on overdue amounts and shall accrue on a daily basis from the due date.  The Company reserves the right to stop supply until the account is brought up to date.

3.4 Without limitation to the Company’s rights under clause 14, in the event of a default by the Client in making any payment in accordance with this clause 3, the amount outstanding may be passed on to a debt collection agency for recovery.

3.5 Any disputes pertaining to invoices rendered must be received by the Company within seven (7) days of the date of the invoice.

4. Indemnity

The Client shall indemnify the Company against all claims, losses, expenses or damage (including indirect or consequential loss) sustained by a third party howsoever caused relating to or concerning the goods or the receipt of goods or services by the Client. The Client shall also indemnify the Company against any liability or loss incurred by the Company as a result of any breach by the Client of any provision of these Terms of Trade.

5. Variation of Terms of Trade

The Company may from time to time amend these Terms of Trade by posting to the address for service of the Client a written set of the amended Terms of Trade.  The Client and any Guarantor(s) agree that the amended terms shall be effective upon posting and are deemed accepted by the Client placing any order after the date of posting. No other modification, variation or amendment to these Terms of Trade shall be of any force or effect unless in writing and signed by the Company.

6. Information and Privacy Act

6.1 The Client and the Guarantor(s) agrees that any information about them provided at any time to the Company may be used by the Company for any purpose connected with its business including (but not limited to) direct marketing, debt collection and credit reporting or assessment.

6.2 The Client and the Guarantor(s) authorise the Company to provide such information to any external agency or party for credit information and assessment purposes and that agency or party is hereby authorised to use and continue to use such information as part of their business(es) services.  The Company and/or the external agency or party may retain and/or use such information for as long as they see fit.

6.3 The Client and the Guarantor(s) may request access to and correction of any information held about them by the Company at any time.

7. Client Information and Guarantee

The Client warrants that the information (including instructions and specifications) supplied to the Company is true and correct. The Client expressly acknowledges that the Company will rely upon the correctness of the representations and information the Client has provided and that the Company will rely on all goods supplied by the Client meeting the original or base specifications reasonably required to enable the Company to supply the toll manufacturing or processing of goods.  The Client further undertakes to inform the Company of any changes in that information.

8. Intellectual Property

All intellectual property shall remain the property of the Company. The sale of any goods or services shall not, unless expressly agreed in writing, give the Client the right to use, sell, disseminate or duplicate any trade mark, copyright, design or any other intellectual property right belonging to the Company.

9. Warranty and Liability

9.1 The Company warrants that goods supplied will be in accordance with specification provided (if any).  Specifications may vary from time to time without prior notice being given. Specifications are available on request.  No other warranty, condition, stipulation or implied term is given.

9.2 While every reasonable care will be taken in the sourcing, toll manufacturing or processing of goods supplied by the Client to the Company, the Company accepts no liability for any allergic or other reaction or consequence (direct or indirect) as a result of the use of the goods supplied.  The Company gives no warranty that the goods supplied contain or confer any health, therapeutic or other properties.

9.3 All warranties are strictly conditional upon full payment having been received unless the Company has agreed credit terms with the Client.

9.4 The Company shall follow all reasonable instructions and specifications (if any) of the Client in relation to the goods supplied. Without creating an obligation to check the reasonableness of instructions or specifications from a Client, the Company may reject an instruction or specification from a Client where it believes that doing so would be unsafe or yield specifications contrary to what the Client requested. If the Company materially fails to follow the instructions of the Client and that failure causes the goods supplied by the Company to not meet the Client’s specifications and the Client suffers loss, damage or harm as a direct result of either such failure, the Client’s sole remedies against the Company are as set out in clauses 9.5 and 9.6 below.  For clarity, the Company shall have no liability for any loss, damage or harm suffered or incurred by the Client or any third party resulting from the Company having carried out any instructions issued by the Client.

9.5 The Company’s obligations under these Terms of Trade  extend only to the replacement of any goods that are damaged, destroyed or do not meet the Client’s specifications or in respect of which the Company has failed to carry out the Client’s instructions. The Company shall have no other liability for any loss or damage (whether direct or consequential) incurred or suffered by the Client or a third party.

9.6 Notwithstanding anything else contained in contained in these Terms of Trade or any document relating to the goods, the liability of the Company to the Client shall not in aggregate exceed the original value of the goods in respect of which the liability arises.

9.7 Under no circumstances whatsoever is the Company to be liable for special, indirect or consequential loss or damages to the Client or for any loss of business or profit, howsoever caused and even if those losses or damages were a known consequence.

10. Personal Property Securities Act 1999 (“PPSA”)

10.1  In this clause 10 and for the purposes of the Company’s rights under the PSSA, “Collateral” shall mean the goods, product, material or substance procured by the Company for supply to the Client.  Other capitalised terms in this clause 10 shall have the meaning prescribed to them in the PPSA.

10.2  The Client acknowledges the Company’s Security Interest in the Collateral supplied to the Client but not paid for under these Terms of Trade.

10.3  The Company reserves the right at its discretion to register a Financing Statement in respect of the Collateral.  The costs of registering a Financing Statement or Financing Change Statement shall be paid by the Client and may be debited by the Company against the Client’s account with the Company. On the request by the Company the Client shall promptly execute any documents and do anything else required by the Company to ensure that the Company’s Security Interest in the Collateral created by these Terms of Trade constitutes a Perfected Security Interest over the Collateral.

10.4  The Client shall not agree to allow any person to file a Financing Statement over the Collateral without the prior consent of the Company and shall notify the Company immediately if it becomes aware of any person taking steps to file a Financing Statement against any of the Collateral.

10.5  The Client and Guarantor (if any) agree that nothing in s114(1)(a), 116, 120, 133, and 134 of the PPSA will apply to these Terms of Trade and the Client waives its rights as a debtor under sections 121, 125, 129, 131 and 132 of the PPSA.

10.6  The Client waives its right under section 148 of the PPSA to receive a copy of the Verification Statement.

11. Transit Damage

11.1  If goods are sold under Cost and Freight, Cost, Insurance and Freight, or Freight, Insurance and Shipping, the Client must acknowledge any transit damage to goods by endorsing delivery documents with details of such damage and advising the Company within seven (7) days of receipt of the damaged goods, and prior to any disposal, use, or sale of the damaged goods.  If no notification is given within this time or if the Client disposes of, uses or sells the alleged damaged goods without permission being given in writing by the Company or if the delivery documents are not endorsed the Client is deemed to have accepted the goods.

11.2  If goods are sold under Freight On Board terms, the Company shall have no liability for transit damage.

12. Delivery and Risk

12.1  The Client shall be solely responsible for the delivery of goods to the Company at the premises of the Company (as notified by the Company from time to time) including unloading such goods at the relevant premises.

12.2  The Client shall meet all costs associated with the delivery of goods to the Company.

12.3  Risk in goods shall only pass from the Client to the Company upon physical delivery (on an unloaded basis) to the Company.

12.4  Upon processing the goods, unless the Customer has otherwise agreed alternative arrangements with the Company, the Company shall arrange on behalf of the Client for the goods to be transported as directed by the Client.

12.5  Risk in goods shall pass from the Company to the Client at the time the goods are collected from the Company’s premises.

12.6  The Company may assist the Client from time to time (in its discretion) in arranging delivery and collection of goods.  However, where it does, it does so on a no-obligations basis and without any liability.

13. Title

The Client acknowledges that the Company reserves title to each consignment of goods supplied by the Client until full payment is made by Client in respect of that consignment.  Accordingly, the Client acknowledges that it holds each consignment of goods upon trust for the Company as beneficial owner until such time as payment in full has been made. For so long as title to goods is reserved to the Company in terms of the foregoing, the Client authorises the Company (through its agent) to enter the premises of the Client and any other premises wherein goods may be held for the purposes of regaining possession of goods until such time as payment in full is made.

14. Default

14.1  In the event that the Client fails to make any payment when due or becomes insolvent, commits an act of bankruptcy, is adjudicated bankrupt or makes any composition or arrangement with creditors or being a company goes into liquidation whether compulsory or voluntary other than for the purpose of and followed by an amalgamation or reconstruction, or has a receiver appointed over any part of its business or assets then the Company reserves the right to:

14.1.1 treat all sums due or to become due from the Client as immediately due and payable;

14.1.2 cancel or suspend any delivery of goods;

14.1.3 enter onto the Client’s premises (without the necessity of giving notice) where the goods may be stored and to search for and remove and take possession of the goods without being in any way liable to the Client or anyone claiming under it for so doing;

14.1.4 withhold the further supply of goods on credit.

14.2  In the event of default under these Terms of Trade the Client will at the Company’s request:-

14.2.1 re-deliver the goods to the Company or do anything reasonably necessary to allow the Company to retake possession of them; and

14.2.2 instruct any third parties who owe money in respect of goods to pay that money direct to the Company; and

14.2.3 make any records available that may assist the Company to take the proceeds of the goods.

14.3  The Client will be liable for and indemnifies the Company for all expenses and losses incurred or suffered by the Company in the enforcement of, or as a result of any default under these Terms of Trade including, without limitation, legal costs and debt collection agency fees.

15. Arbitration

Any dispute whatsoever arising in relation to these Terms of Trade shall be referred to arbitration in accordance with the provisions of the Arbitration Act 1996 or any statutory modification or amendment thereof at the time being in force.

16. Jurisdiction

New Zealand law shall govern and New Zealand courts shall have non-exclusive jurisdiction in relation to any dispute.

17. Force Majeure

The Company shall not be liable to the Client for damages directly or indirectly arising from any failure in delivery of the goods or failure to perform any of these Terms of Trade where such failure is caused directly or indirectly by an act of God, electrical failure, fire, labour dispute, civil commotion, Government intervention, or inability to obtain labour or materials, accidents, transportation delays, or any other cause beyond the Company’s reasonable control.

18. Consumer Guarantees Act 1993 (“CGA”)

The Client acknowledges that it acquires goods from the Company solely for the purposes of resupply in trade for the purposes of the Client’s business and that, accordingly, the provisions of the CGA will not apply to any such supply.

19. Severance

In the event of the invalidity of any part or provision of these Terms of Trade, such invalidity shall not affect the enforceability of any other part or provision of these Terms of Trade.

20. Confidentiality

To the extent any confidential information is passed on by a party to the other, the other party must keep that information confidential.