These terms of trade are incorporated into any contract of sale
of goods and services ("Goods") between John Burton Limited (the
"Supplier") and its customers (each a "Customer").
These terms of trade prevail over any other terms and
conditions, or other form of contract despite any indication to the
contrary by any person acting or apparently acting on behalf of the
Supplier, unless agreed in writing by a duly authorised officer of
Orders for Goods must be placed in accordance with the
Supplier's procedures as promulgated from time to time.
Receipt by the Supplier of any Customer order will be deemed to be
acceptance by the Customer of these terms of trade, despite
anything to the contrary in the Customer's order.
No order placed with the Supplier may be cancelled without the
Supplier's prior approval, and then only upon such terms as the
Supplier may specify.
The prices for Goods are those contained in the Supplier's price
list current at the time of the order, less any discounts
negotiated. The Customer must also pay any taxes and duties
which may be applicable, including GST payable in respect of Goods
in accordance with the Goods and Services Tax Act 1985.
At least six weeks notification will be given of any price
CEASING ORDERS FOR
The Customer is required to notify the Supplier within 2
business days if it decides to cease ordering any particular
Goods. The Customer will continue to sell those Goods in its
possession at the time of providing such notice.
Unless otherwise agreed in writing payment is due within 30 days
of the date of the Supplier's invoice.
The Customer may not withhold payment or make any deductions
from any amount owing in respect of the supply of Goods without the
Supplier's prior written consent.
There is no prompt payment discount unless specifically agreed
in writing by the Supplier and the Customer.
All payments received will be credited chronologically against
invoices which are issued earlier in time regardless of whether the
payment is stated to be for a later invoice.
The Supplier will deliver, or arrange delivery of the Goods to
the place specified in the Customer's order.
The Supplier reserves the right to charge freight for despatches
If the Customer refuses to accept delivery of Goods the Supplier
may charge the Customer for any additional costs incurred as a
result, including storage and transportation costs.
The Supplier will use its best endeavours to fulfil orders which
have been confirmed by the Supplier, but will not be liable for any
failure to deliver or delay in delivery.
The title to Goods delivered remains with the Supplier until
payment has been received in full by the Supplier.
Risk of any loss, damage or deterioration of or to the Goods
passes to the Customer on delivery. The Customer is
responsible for insuring Goods from the time of delivery.
Despite any period of credit, Ownership of the Goods remains
with the Supplier and does not pass to the Customer until the
- pays the price of the Goods (and other related sums including
any transportation costs and any applicable duties or taxes) to the
Supplier ("Customer Debt"); or
- resells the Goods in accordance with these terms provided
that the proceeds from any such resale are held in trust in
accordance with the provisions set out in this "Risk and Ownership"
While Ownership of the Goods remains with the Supplier:
- the Customer must store them separately in a saleable condition
as fiduciary, bailee and agent of the Supplier and clearly identify
them as belonging to the Supplier;
- the Customer may (until advised to the contrary in writing by
the Supplier), in the ordinary course of its business, use the
Goods or sell them for full value, provided that the proceeds from
any such resale are held in trust in accordance with the provisions
set out in this "Risk and Ownership" section; and
- as the Customer's irrevocably appointed agent for the purposes
of this clause, the Supplier may, if the Supplier has reasonable
grounds to believe that the Customer has not complied with these
terms or an Event of Default has occurred or is likely to occur,
enter the premises where the goods are stored and remove
them. The Supplier will not be responsible for any damage
reasonably caused in entering and removing the Goods. The
Customer will indemnify the Supplier for any costs or liability
incurred by the Supplier as a result of any such damage. The
Customer is liable for all costs of the Supplier (including
transportation and storage charges) of and incidental to entering
and removing the Goods. The Supplier may resell any of the
Goods and apply the proceeds of sale in reduction of the Customer
If the Customer resells or uses the Goods before ownership of
the Goods has passed to the Customer, the proceeds of such sale or
use will be held by the Customer (in whatever form) in trust for
both the Customer and the Supplier. The Supplier's interest
as beneficiary under that trust is that portion of the proceeds
which does not exceed the Customer Debt. The balance of the
proceeds (if any) shall be the Customer's beneficial interest under
that trust. The Supplier may at any time, by notice in
writing, require the Customer to convert the proceeds into money,
to be paid into a bank account nominated by the Supplier for
disbursement in accordance with these terms.
The Supplier may bring an action for the price of the Goods sold
even where ownership of the goods may not have passed to the
If any of the Goods are mixed or incorporated in other goods
(the "Mixed Goods") before payment for or resale of the Goods,
ownership of the Mixed Goods remains with the Supplier on the same
basis as is set out above. The Supplier and the Customer will
have the same rights, powers, duties and liabilities in respect of
the Mixed Goods as if the Mixed Goods had been Mixed Goods owned
and supplied by the Supplier in accordance with these terms at the
time that the Goods had in fact been supplied by the Supplier.
SECURITIES ACT 1999 (the PPSA)
The Customer grants a security interest to the Supplier in each
and every part of the Goods as security for payment of that part
and of each other part or parts of the Goods and for any other
amounts owing by the Customer to the Supplier from time to time,
and for the performance by the Customer of all the Customer's other
obligations to the Supplier from time to time, ("Customer's
indebtedness and obligations"). For the purposes of section
36(1)(b) of the PPSA, and to ensure maximum benefit and protection
for the Supplier by virtue of section 36(1)(b)(iii) of the PPSA,
the Customer confirms and agrees that the Customer intends to and
does grant to the Supplier, as security for the Customer's
indebtedness and obligations, a security interest in all of the
Customer's present and after-acquired property except only for any
such property which is or comprises items or kinds of personal
property ("excepted property"):
(a) in or to which the Customer has rights; and
(b) which has not been supplied by the Supplier to the
other than any excepted property which is or comprises proceeds
of any of that present and after-acquired property which has been
supplied by the Supplier to the Customer.
The Supplier may allocate amounts received from the Customer in
any manner it determines, including in any manner required to
preserve any purchase money security interest it has in any
The Customer waives the right to receive a copy of the
verification statement confirming registration of a financing
statement or financing change statement relating to the security
interest under the Contract.
The Customer agrees that nothing in sections 114(1)(a), 133 and
134 of the PPSA shall apply to this Contract, or the security under
this Contract, and waives the Customer's rights under sections 121,
125, 129, 131 and 132 of the PPSA.
ACT 1993 (THE "CGA")
Where (were it not for this paragraph) the CGA would apply to
the contract of sale into which these terms are incorporated, and
the Customer acquires (or holds the Customer out to be acquiring)
the goods for the purposes of a business as defined in the CGA, the
Customer agrees that the CGA does not apply to the contract of
Nothing in these terms (particularly the clauses headed
"Warranties" "Liability" and "No Credit for Returned Goods") is
intended to have the effect of contracting out of the provisions of
the CGA where the CGA applies. Where the CGA applies, these terms
are modified accordingly.
No warranty or condition is implied against the Supplier under
any statute, at common law or otherwise and no representation,
condition, warranty or variation of these terms is binding on the
Supplier unless it is in writing and signed by a duly authorised
officer of the Supplier.
Sale and Return
Goods are not sold on a sale or return basis unless specifically
agreed in writing.
Goods Damaged in Transit
Goods damaged in transit must be reported to the Supplier within
five business days of their receipt quoting packing slip or invoice
number. Where it is identified that damage occurred after
risk in the Goods passed to the Customer then the Supplier accepts
no responsibility for such claim and will advise the Customer of
the appropriate person to claim against.
Short or incorrect Goods must be reported to the Supplier within
five business days of their receipt quoting packing slip or invoice
Any Goods which show obvious manufacturing defects must be
notified in writing to the Supplier within two business days from
receipt of the Goods. Where possible please quote the packing
slip or invoice number.
Out of stock items are not normally held for back-ordering and
should be re-ordered.
Out of Date Goods
Any Goods having a date by which they must be used which is
greater than 6 months from the date of dispatch will not be
accepted back for credit or exchange for reasoning of short
No Credit for Returned Goods
Goods cannot be returned unless the Supplier has specifically
agreed with the Customer in writing to this effect in advance.
The Supplier will not be liable for any Claim for loss or
compensation or other remedy (of any nature, including under
contract or in negligence) by the Customer or any other person
including without limitation any Claim relating to or arising
- any condition, warranty, description, representation, condition
as to fitness or suitability for any purpose, merchantability or
otherwise, whether express or implied by law, trade custom or
otherwise (excepted as provided in the section headed "Consumer
Guarantees Act"); or
- any representation, warranty, or agreement made by any agent or
representative which is not expressly confirmed by the Supplier in
If despite this clause the Supplier is held to be liable to the
Customer under these terms for loss of any nature (including under
contract and in negligence) the Supplier's total liability will not
exceed the price of the goods in relation to which that liability
If an Event of Default occurs, the Supplier may suspend or
terminate the contract of sale between the Supplier and the
If the Customer does not pay the amounts payable under these
terms by the due date for payment under these terms, the Customer
will compensate the Supplier by immediately making payment as
liquidated damages (in addition to the amount due) of interest at a
rate per annum 4% above the retail lending base rate of the Bank of
New Zealand as at the first day of the month in which the
default occurs, and calculated on a daily basis on the amount
unpaid from the due date until payment is made in full .
The Customer will pay all costs incurred by the Supplier,
including legal costs on a solicitor-client basis and debt
collectors' costs, in the recovery or attempted recovery of
outstanding money and the enforcement of these terms.
Payments by the Customer will be applied first in reduction of
such interest and costs due, and the balance in reduction of other
If an Event of Default occurs, the price and any other amount
owing will immediately become due and payable notwithstanding that
the due date has not arisen.
If the Supplier exercises or fails to exercise any right or
remedy available to it, this will not prejudice the Supplier's
rights in exercising that or any other right or remedy.
Any waiver of any term of the contract into which these terms
are incorporated must be specified in writing and signed by an
authorised officer of the Supplier.
The Customer must not transfer its rights in respect of the
purchase of Goods to any other party without the Supplier's prior
consent in writing.
The Supplier may amend these, and introduce new, terms of trade
by giving 7 days notice in writing to the Customer.
These terms and the contract of sale into which they are
incorporated are governed by New Zealand law and the parties submit
to the non-exclusive jurisdiction of the New Zealand courts.
The United Nations Convention on Contracts for the International
Sale of Goods adopted at Vienna, Austria on 10 April 1980 does not
apply to sales of Goods the subject of these terms of trade.
In these terms:
"the CGA" means the Consumer Guarantees Act 1993.
"Claim" means any claim:
- for loss of profits suffered by the Customer; or
- for any consequential, indirect or special loss, damage or
injury of any kind suffered by the Customer or any person arising
directly or indirectly from:
- any breach of the Supplier's obligations under the contract;
- any cancellation of this contract; or
- any negligence, misrepresentation or other act or omission by
the Supplier or its employees, agents or contractors.
An "Event of Default" means an event where:
- the Customer fails to comply with the terms of the contract
into which these terms are incorporated or any other contract with
the Supplier or any related company of the Supplier; or
- the Customer commits an act of bankruptcy or is unable to pay
its debts as they fall due or is deemed to be bankrupt or
- the Customer enters into any composition or arrangement with
its creditors; or
- If the Customer is a company:
- the Customer commits any act or any event occurs in relation to
it which exposes it to a risk of being put into liquidation or
- a resolution is passed or proceedings commenced for the
Customer to be wound up or liquidated; or
- a receiver or statutory or official manager or trustee is
appointed over all or any of the Customer's assets; or
- the ownership or effective control of the Customer is
transferred without the prior written consent of the Supplier.
"Ownership" means the property in and legal and beneficial
"the PPSA" means the Personal Property Securities Act 1999.