1. APPLICATION
1.1 These Terms incorporate the JBL Application for Credit Account and apply to all Products and/or Services supplied by JBL to the Customer. In the event of any inconsistency between the Invoice or any Customer terms and conditions, these Terms will prevail. Any additional or special terms will only apply if they are agreed in writing by both parties.
2. ORDERS
2.1 Orders for Products and Services must be placed in accordance with JBL’s procedures as promulgated from time to time. Receipt by JBL of any Customer order for Products and Services will be deemed as acceptance of these Terms.
2.2 Orders for Products and Services must be received by JBL before 10:00 am (for orders in Auckland) or before 11:00 am (for orders outside Auckland) for same day dispatch, otherwise they will be dispatched the following Business Day.
3. CANCELLATION
3.1 The Customer may not cancel an order for Products or Services without JBL’s prior written consent, and in any event must provide no less than 7 Business Days’ notice in writing of such cancellation. As a condition of giving consent, JBL may require reimbursement of any costs incurred by JBL as a result of the Customer’s order and cancellation.
3.2 The Customer will sell all remaining Products in its possession at the time of providing such notice.
4. PRICE AND PAYMENT
4.1 The Customer will pay the Price for the Products and/or Services in accordance with the terms of the Invoice.
4.2 The minimum order quantity for free freight is 120 kilogram. Orders below this threshold will incur freight charges, which will added on as part of the Price.
4.3 Unless JBL has approved a credit application for the Customer’s purchase of the Products and/or Services, the Customer must pay the Price in accordance with the Invoice, without deduction or set off by the time required in the Invoice. This will be the 20th day of each month, the following month unless otherwise specified in the Invoice.
4.4 If the Customer disputes any Invoice, it will give JBL notice of that dispute within 10 Business Days of receipt of the relevant Invoice but will otherwise pay the Invoice according to its terms. The dispute will then be referred for resolution in accordance with clause 17.
4.5 JBL may accept and apply payments from the Customer in respect of any indebtedness at JBL’s discretion.
5. DEFAULT
5.1 Subject to clause 17, if the Customer fails to pay any amounts due under the Invoice, JBL may without prejudice to its other rights or remedies under these Terms or at law:
5.1.1 charge interest on that amount owing from the due date until the date of actual payment at 4% per annum over the base overdraft rate charged by JBL’s principal bankers from time to time and will be payable on demand;
5.1.2 refer the amount owing to a third-party debt collection agency, and on-charge any costs incurred in doing so;
5.1.3 charge the Customer any other costs incurred in collecting amounts owing, including without limitation legal costs;
5.1.4 enter the Customer’s premises to repossess the Products and recover all JBL’s costs associated with repossession; and
5.1.5 suspend the provision of the Products and Services without liability to JBL.
5.2 If an Event of Default occurs:
5.2.1 All amounts owing to JBL will become immediately due and payable;
5.2.2 Where permitted by law, JBL may enter the Customer’s premises to repossess the Products and recover all JBL’s costs associated with repossession of the Products; and
5.2.3 JBL may suspend or terminate the provision of the Products and Services without liability to JBL.
6. DELIVERY
6.1 JBL will procure the Products to be delivered to the Customer as specified in the Invoice.
6.2 Where the Customer refuses or is unable to accept delivery of the Products, JBL may on charge any consequential costs it incurs, including without limitation any transportation or storage costs.
6.3 While JBL will use its best endeavours to procure delivery of the Products in accordance with the terms of the Invoice, to the maximum extent permitted by law (including under the CGA, CCLA, and the FTA), JBL disclaims all liability for any loss of any kind arising from its inability to procure the Products in accordance with the terms of its Invoice.
7. WARRANTY AND RETURNS
7.1 To the maximum extent permitted by law (including under the CGA, CCLA , and the FTA), JBL excludes all implied warranties for the Products and Services. For the avoidance of doubt, JBL will provide remedies to the Customer in the circumstances set out in clauses 7.3, 7.4 and 7.5 or where
7.2 would otherwise be required by law, despite the general exclusion of warranties in this clause.
7.3 Any defects in the Products must be reported to JBL within 3 Business Days of the discovery of the defect.
7.4 Any damage caused to Products from transit must be reported to JBL within 3 Business Days of when the products were delivered.
7.5 Where the Customer receives incorrect or insufficient Products it must report this to JBL within 3 Business Days of their delivery.
7.6 Where the Customer notifies JBL of issues under clauses 7.3, 7.4 and 7.5 it must cite the packing slip or Invoice number.
7.7 For the avoidance of doubt, where the Customer is not otherwise eligible for remedy under clauses 7.3, 7.4 and 7.5, or under any other statutory remedy which cannot be contracted out of under clause 7.1, the Products are sold on a final basis and cannot be returned under any circumstances.
8. TITLE AND RISK
8.1 Title to the Products passes to the Customer at the time of delivery of the Products. The Customer will be responsible for insuring the Products on delivery.
8.2 Title to the Products passes to the Customer on payment of the Price.
8.3 If the Customer resells the Products before attaining the title to the Products, the Customer must hold the proceeds of such sale on trust for JBL to satisfy any amounts owing to JBL for the Products.
8.4 In relation to any Products in which JBL retains title, the Customer must:
8.4.1 keep the Products separate from other goods;
8.4.2 maintain the Products in good condition;
8.4.3 clearly mark the Products as Products; and
8.4.4 where JBL issues a written directive, the Customer must not sell or otherwise dispose of the Products.
8.5 JBL retains the right to sue the Customer for the Price of the Products, even if title to the Products has not passed to the Customer.
8.6 If the Products are altered or mixed with other products, JBL will retain an interest in the other products.
8.7 The parties agree that JBL retains a security interest in the Products until it receives the full Price. The Customer acknowledges that this clause creates a security interest for the purposes of the PPSA and agrees that JBL may register, at the Customer’s cost, a financing statement on the PPSR to protect its interest in the Products. The Customer will do all things reasonably required by JBL to perfect and maintain the security interest. The Customer must not change its name, company number or NZBN or other details required on the PPSR, without first notifying JBL in writing. The Customer acknowledges and agrees to waive its right to receive any notice under the PPSA (including notice of a verification statement under section 145) unless the notice is required by the PPSA and cannot be excluded. To the fullest extent permitted by the PPSA, the parties agree to contract out of sections 114(1)(a), 116, 120(2), 121, 122, 125, 126, 127, 129, 131, 133 and 134 of the PPSA.
9. FAIRTRADE CERTIFICATION
9.1 The Customer acknowledges that the Products will only be Fairtrade Certified if the Customer is Fairtrade Certified.
10. PRIVACY
10.1 To the extent that any of the Customer Data constitutes Personal Information as defined in section 7 of the Privacy Act, the Customer authorises JBL to collect, use, store, disclose and otherwise process such Personal Information to the extent reasonably required to provide the Services, perform its obligations under these Terms, comply with applicable law, and exercise its legal rights.
10.2 Where otherwise permissible under the Privacy Act, JBL reserves the right to pass on Customer Data to a third-party debt collection agency.
11. NO ASSIGNMENT OR SUBCONTRACTING
11.1 JBL may assign all or any of its rights or obligations under these Terms or subcontract the Services (in whole or in part) to any other person or entity without the prior written consent of the Customer.
11.2 The Customer may not assign all or any of its rights or obligations under these Terms to any other person or entity without the prior written consent of JBL. A change in Control shall be deemed to be an assignment for the purposes of these Terms. JBL may provide, deny or withhold its consent and impose any condition it considers necessary in its sole discretion. JBL shall not be required to provide any reasons for its provision, denial, withholding or imposing of conditions of its consent.
12. NO WAIVER
12.1 No failure by JBL to exercise any right under these Terms will operate as a waiver of that right.
13. LIABILITY
13.1 To the fullest extent permitted by law, JBL’s liability under these Terms is in substitution for, and to the exclusion of, all other warranties, representations, conditions or obligations imposed or implied by law, statute and all liability for any indirect, special or Consequential Loss or damage of any kind is expressly excluded. JBL’s total liability to the Customer in respect of all losses suffered or incurred under any transaction will not exceed the price paid and/or payable by the Customer to JBL under the relevant Invoice(s).
14. GOVERNING LAW
14.1 These Terms will be governed by and construed in accordance with the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the New Zealand courts.
15. AMEDMENTS AND VARIATIONS
15.1 These Terms may be amended by JBL from time to time by written notice to the Customer. By receiving the Products and Services, the Customer is deemed to accept and agree to the Terms in force at the time of such receipt. If the Customer does not agree to the amended Terms, the Customer may terminate any orders it has with JBL for Products and Services, by giving JBL 30 Business Days’ written notice, in which case JBL will provide the Customer with any Products already ordered in accordance with the Terms in force immediately prior to the amendment and the amended Terms shall apply to such Products and/or Services.
16. CGA
16.1 Pursuant to s43 of the CGA, the CGA does not apply to any Products or Services acquired by the Customer in trade (as that term is defined in s2(1) of the CGA) under these Terms.
17. DISPUTE RESOLUTION
17.1 If a dispute arises out of or relates to these Terms (Dispute) neither of the parties may commence any court or arbitration proceedings relating to the Dispute unless it has first complied with the following paragraphs of this clause, except where the party seeks urgent interlocutory relief.
17.2 A party claiming the Dispute has arisen must give written notice to the other party specifying the nature of the Dispute.
17.3 On receipt of that notice, the parties will use all reasonable endeavours to resolve the Dispute by discussion, consultation, negotiation or other informal means.
17.4 If the Dispute is not resolved within 15 Business Days of the notice being given pursuant to clause 17.2 (or within such further period agreed in writing by the parties) either party may, by giving written notice to the other party, require the Dispute to be determined by arbitration. The arbitrator will be appointed by the parties or, failing agreement within 5 Business Days of the notice requiring arbitration, by the President of the New Zealand Law Society on application of either party. The arbitration will be conducted in Auckland, New Zealand as soon as possible and in accordance with the provisions of the Arbitration Act 1996.
18. INDEMNITIES
18.1 The Customer indemnifies, and must keep indemnified, JBL against all liabilities, losses, damages, costs and expenses (including legal costs on a full indemnity basis) arising from or in connection with:
18.1.1 any breach by the Customer of these Terms, including any failure to comply with its obligations, representations or warranties;
18.1.2 any act or omission of the Customer, its employees, agents or contractors; and
18.1.3 any claim by a third party arising from the Customer’s use of the Services or Products, except to the extent caused by JBL’s gross negligence or wilful misconduct.
19. PARTIAL INVALIDITY
19.1 The illegality, invalidity or unenforceability of a provision of a of these Terms under any law will not affect the legality, validity or enforceability of another provision.
20. ENTIRE AGREEMENT
20.1 These Terms, together with the JBL Application for Credit Account and the Invoice, constitute the entire agreement between the parties and supersede all prior agreements, understandings, representations, and arrangements, whether written or oral, relating to the subject matter of these Terms, unless expressly varied in writing with reference to this clause.
21. Definitions
21.1 In these Terms, unless the context otherwise requires:
Business Day means a day other than a Saturday, Sunday or public holiday in Auckland under the Holidays Act 2003;
CCLA means the Contract and Commercial Law Act 2017;
CGA means the Consumer Guarantees Act 1993;
Customer means the Customer of JBL which is purchasing the Products or Services;
Customer Data means any data that is provided by, or on behalf of, the Customer for processing by JBL or for the purpose of providing the Products or Services;
Consequential Loss means any loss, damage, cost, or expense that does not arise directly from a breach of these Terms but occurs as a secondary or indirect result of that breach, including, without limitation:
Control means with respect to any entity or person, possession of the power, directly or indirectly, to direct or cause the direction of the management policies of such entity or person, whether through legal and/or beneficial ownership of shares or otherwise;
Event of Default means an event where:
i. the Customer defaults in respect of any of its obligations to JBL;
iii. an Insolvency Event has occurred or is likely to occur.
Fairtrade Certified means products that have been assessed and certified by Fairtrade ANZ as complying with applicable fairtrade standards.
FTA means the Fair Trading Act 1986;
GST means goods and services tax payable under the Goods and Services Tax Act 1985;
Insolvency Event means where:
Invoice means the invoice issued to the Customer by JBL for providing Products and Services;
JBL means John Burton Limited (company number 240146);
JBL Application for Credit Account means the JBL application for credit account entered into by the parties;
PPSA means the Personal Property Securities Act 1999;
PPSR means the Personal Property Securities Register established under the PPSA;
Price means the price for JBL Products and Services as set out in JBL’s price list at the time of the order, less any discounts agreed in writing, together with any applicable fees (including freight and delivery charges), agreed disbursements, taxes, and duties (including GST);
Privacy Act means the Privacy Act 2020;
Products means the products that JBL will provide to the Customer;
Security Interest has the meaning given to that term in section 17 of the PPSA; and
Services means the services that JBL will provide to the Customer;
Terms means these JBL terms and conditions, as may be updated from time to time by notice from JBL to the Customer.