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 the Supplier.
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 changes.
CEASING ORDERS FOR GOODS
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 under 120kg.
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.
RETENTION OF TITLE
The title to Goods delivered remains with the Supplier until payment has been received in full by the Supplier.
RISK AND OWNERSHIP
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 Customer:
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” section;
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 Debt.
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 Customer.
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.
PERSONAL PROPERTY 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 Customer,
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 Goods.
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.
CONSUMER GUARANTEES 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 sale.
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.
RETURN OF GOODS
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 number.
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 dating.
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 from:
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 writing.
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 was incurred.
If an Event of Default occurs, the Supplier may suspend or terminate the contract of sale between the Supplier and the Customer.
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 amounts due. 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.
JURISDICTION AND FORUM
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
any breach of the Supplier’s obligations under the contract; or
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 insolvent; or
the Customer enters into any composition or arrangement with its creditors; or
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 receivership; 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 ownership.
“the PPSA” means the Personal Property Securities Act 1999.