1.1 “Seller" shall mean “The Trusts”, which includes West Auckland Trust Services, Waitakere Licensing Trust and Portage Licensing Trust and their successors and assigns.
1.2 "Client' shall mean the Client or any person acting on behalf of and with the authority of the Client.
1.3 "Guarantor" means that person (or persons), or entity that agrees herein to be liable for the debts of the Client if a Limited Liability Client on a principal debtor basis.
1.4 "Goods" shall have the same meaning as in section 119 of the Contract and Commercial Law Act 2017 and are goods supplied by the Seller to the Client (and where the context so permits shall include any supply of Services as hereinafter defined).
1.5 "Services" shall mean all services supplied by the Seller to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined supra).
1.6 “Spend” means the net aggregate amount (excluding GST) paid by the Client (and received by the Seller) in cleared funds in respect of the supply of Goods.
1.7 “PPSA” means the Personal Property Securities Act 1999.
1.8 “Price" means the price of the Goods as agreed between the Seller and Client, based on the Seller's then current price list (which lists prices as GST exclusive), subject to variation in accordance with these Terms of Trade.
1.9 “Terms of Trade” shall mean these Terms & Conditions of Trade (Wholesale) for the Seller.
2.1 Any instructions received by the Seller on behalf of the Client or Clients for the supply of Goods shall constitute acceptance of these Terms of Trade as the applicable terms and conditions on which those Goods will be supplied.
2.2 Where one set of instructions are received by the Seller for the supply of Goods to more than one Client, the Clients shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these Terms of Trade by the Client (or Clients) the terms and conditions set out in these Terms of Trade are irrevocable and can only be varied or rescinded in accordance with these Terms of Trade or with the written consent of the manager of the Seller. All variations to these Terms of Trade must be notified in writing to the Client. By continuing to place an order with the Seller, the Client will be deemed to have accepted the variation to these Terms of Trade.
2.4 None of the Seller's employees or representatives are authorised to make or give any representations, warranties, or statements to a Client, or to agree to any conditions or agreements with a Client, nor is the Seller bound by any such unauthorised statements. The Client is bound only by any representations, warranties, statements, conditions, or agreements in these Terms of Trade, or made in writing by authorised employees of the Seller].
2.5 The Client warrants and undertakes to the Seller that it holds all licences and approvals necessary for and is compliant with all laws regulating or concerning the purchase of the Goods.
2.6 The Seller warrants and undertakes to the Client that it holds all licences and approvals necessary for and is compliant with all laws regulating or concerning the sale of the Goods. This will include, but not restricted to, holding a current liquor licence and the Client will inform the Seller and immediately cease purchasing liquor from the Seller under the Terms of Trade in the event they no longer hold a current liquor licence.
3 Goods & Services
3.1 The Goods and/or Services are as described on the invoices, quotation, work authorisation or any other work commencement forms as provided by the Seller to the Client.
4 Price and Payment
4.1 Payment for approved Clients shall be 7 days following the date of the invoice (or on such other later date as the Seller may agree to).
4.2 Payment will be made by direct debit, or by any other method as agreed to between the Client and the Seller.
4.3 The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Seller.
4.4 Pricing for trade is not the same as pricing on retail promotions within the Seller’s Off-Premise locations. Any discounting under any [retail promotions] [?] will not be applicable to the Price.
4.5 A rebate will be paid to the Client if the Client meets certain Spend thresholds in a consecutive six-month period, as follows:
a) If the Client Spends between $50,000 to $100,000, the Client will receive a rebate of 1.5%.
b) If the Client Spends between $100,000 and $150,000, the Client will receive a rebate of 2.0%; and
c) If the Client Spends more than $150,000, the Client will receive a rebate of 2.5%,
any rebate the Client qualifies for will be paid to the Client following the end of the relevant 6-month period as an automatic credit to the Client’s nominated account.
5 Delivery of Goods
5.1 Delivery of the Goods shall be made to the Client’s address. The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery, or delivery of the Goods shall be made to the Client at the Seller’s address.
5.2 The Client shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that:
a) the discrepancy is notified to the Client;
b) such discrepancy in quantity shall not exceed 5%, and,
c) the Price shall be adjusted pro rata to the discrepancy.
5.3 The failure of the Seller to deliver as agreed, or within a reasonable time shall not entitle either party to treat this contract as repudiated.
5.4 The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) on time. Any delivery time communicated to the Client is an indication only and not a warranty. Time is not of the essence in respect of the Seller’s failure to deliver on time. The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) due to any reason outside the Seller’s reasonable control.
5.5 Delivery charges – a minimum spend on Goods in any single order is required for free delivery within The Trusts’ borders. Some exceptions may apply due to the nature of the delivery’s location. The minimum current minimum spend requirement can be obtained from the Seller. Delivery fees for any order under the minimum spend for free delivery or outside of the Trust’s borders will be included in the Price and specified in the invoice provided by the Seller to the Client in respect of the Goods supplied.
6.1 The Seller retains title and property in the Goods until the Price for the Goods is paid in full. Nonetheless all risk for the Goods passes to the Client on delivery.
6.2 If any of the Goods are damaged or destroyed prior to property in them passing to the Client, the Seller is entitled, without prejudice to any of its other rights or remedies under these terms and conditions (including the right to receive payment of the balance of the Price for the Goods, to receive all insurance proceeds payable in respect of the Goods. This applies whether or not the Price has become payable under these terms and conditions. The production of these terms and conditions by the Seller is sufficient evidence of the Seller's rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
7.1 The Client shall inspect the Goods on delivery and shall within fourteen (14) days of delivery notify the Seller of any alleged shortage in quantity, damage, or failure to comply with the description. The Client shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery, if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be conclusively presumed to be of the right quantity, free from defects and free from any damage.
7.2 For defective Goods which the Seller has agreed in writing that the Client is entitled to reject, the Sellers liability is limited to either (at the Sellers discretion) replacing the Goods or repairing the Goods provided that:
a) the Client has complied with the provisions of clause 7.1,
b) the Seller will not be liable for Goods which have not been stored or used in a proper manner,
c) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures, and instruction material in as new condition as is reasonable possible in the circumstances.
8.1 For Goods not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller shall be under no liability whatsoever except for the express conditions as detailed and stipulated in the manufacturer’s warranty.
9 Default & Consequences of Default
9.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month end shall accrue at such a rate after as well as before any judgement.
9.2 If the Client defaults in payment or any invoice when due, the Client shall indemnify the Seller from and against all the Seller's costs and disbursements including on a solicitor and own Client basis and in addition all costs of collection.
9.3 Without prejudice to any other remedies the Seller may have, if at any time the Client is in breach of any obligation to the Seller (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Client and any of its other obligations under these Terms of Trade. The Seller will not be liable to the Client for any loss or damage the Client suffers because the Seller exercised its rights under this clause.
10.1 It is the intention of the Seller and agreed by the Client that property in the goods shall not pass until:
a) the Client has paid all amounts owing for the Goods, and
b) the Client has not all other obligations due by the Client to the Seller in respect of all contracts between the Seller and the Client, and that the Goods, or proceeds of the sale of the Goods, shall be kept separate until the Seller shall have received payment and all other obligations of the Client are met.
10.2 It Is further agreed that:
a) The Client shall not deal with the money of the Seller in any way which may be adverse to the Seller.
b) Until such time as ownership of the Goods shall pass from the Seller to the Client the Seller may give notice in writing to the Client to return the Goods or any of them to the Seller. Upon such notice the rights of the Client to obtain ownership or any other Interest in the Goods shall cease.
c) If the Client fails to return the Goods to the Seller then the Seller or the Seller's agent may, during ordinary business hours, enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods are situated and take possession of the Goods.
d) Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared, or recognised, and until then the Seller’s ownership of rights in respect the Goods shall continue.
e) The Client shall not charge for Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Seller.
f) The Seller may require payment of the Price or the balance of the Price due together with any other amounts due from the Client to the Seller arising out of these terms and conditions, and the Seller may take any lawful steps to require payment of the amounts due and the Price.
g) The Seller can issue proceedings to recover the Price of the Goods sold not withstanding that ownership of the Goods may not have passed to the Client.
h) Until such time the Client has the Seller’s authority to convert the goods into other products and if the goods are so converted, the parties agree that the Seller will be the owner of the end products.
11 Personal Property Securities Act 1999
11.1 The Client acknowledges and agrees that:
a) These terms and conditions constitute a security agreement for the purposes of the PPSA; and
b) The retention of title in the Goods in favour of the Seller gives rise to a security interest in the Goods and all proceeds of the Goods in favour of the Seller and the client further grants a security interest to the extent applicable in all Goods previously supplied by the Seller to the Client and all Goods that will be supplied in the future by the Seller to the Client during the continuance of the parties relationship.
11.2 The Client undertakes to:
a) Sign any further documents and/or provide any further information, such information to be complete, accurate and up to date in all respects, which the Seller may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register (PPSR).
b) Indemnify, and upon demand reimburse the Seller for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby.
c) Not register a financing change statement or a change demand without the prior written consent of the Seller.
d) Give the Seller not less than fourteen (14) days prior written notice of any proposed change in the Client's name and/or any other change in the Client’s details including but not limited to, changes in the Client’s address, facsimile number, or business practice; and
e) immediately advise the Seller of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
f) The Seller and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms and Conditions.
g) The Client waives its rights as a debtor under sections 116, 120(2), 121,125,126, 127,129 and 131 of the PPSA.
11.3 Unless otherwise agreed to in writing by the Seller, the Client waives it’s right to receive a verification statement in accordance with section 148 of the PPSA.
11.4 The Client unconditionally ratifies any actions taken by the Seller under and by virtue of the power of attorney given by the Client to the Seller under clause 12.1.
11.5 The following terms used in this clause 11 have the same meaning given to them as in the PPSA: change demand, financing change statement, financing statement, proceeds, security interest and verification statement.
12 Security & Charge
12.1 Notwithstanding anything to the contrary contained herein or any other rights which the Seller may have howsoever:
a) Where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their Joint and/or several interest in the said land, really or any other asset to the Seller or the Seller's nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Client and/or the Guarantor acknowledge and agree that the Seller (or the Sellers nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
b) Should the Seller elect to proceed in any manner in accordance with this clause and/or its sub- clauses, the Client and/or Guarantor shall indemnify the Seller from and against all the Seller's costs and disbursements including legal costs on a solicitor and own Client basis.
c) To give effect to the provisions of clause (11, 12.1(a) to (b)) inclusive hereof the Client and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Seller or the Seller’s nominee, as the Client's and/or Guarantor's true and lawful attorney to execute mortgages and charges (whether registerable or not) including such other terms and conditions as the Seller shall think it in his/her/it’s/their absolute discretion against the joint and/or several interest of the Client and/or the Guarantor in any land, realty or asset in favour of the Seller and in the Client's and/or Guarantor's name as may be necessary to secure the said Client's and/or Guarantor's obligations and indebtedness to the Seller and further to do and perform all necessary and other acts including instilling any necessary legal proceedings, and further to execute all or any documents in the Seller's absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.
13 Clients Disclaimer
13.1 The Client acknowledges that he buys the Goods relying solely upon his own skill and judgement and that the Seller shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the Manufacturer which warranty shall be personal to the Client and shall not be transferable to any subsequent Client, to the extent permitted by law.
14.1 The Seller may cancel these Terms of Trade or cancel delivery of Goods and Services before an order is accepted, by giving written notice to the Client. On giving such notice the Seller shall promptly repay to the Client any sums paid in respect of the price for those Goods. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
15 Privacy Act
15.2 The Client authorises the Seller to disclose any information obtained to any person for the purposes set out in clause 15.1.
15.3 Where the Client is a natural person the authorities under (clause 15.1 & 15.2) are authorities for the purposes of the Privacy Act 2020.
16.1 If any provision of these terms and conditions shall be invalid, void, or illegal or unenforceable the validity, legality end enforceability of the remaining provisions shall not be affected, prejudiced, or impaired.
16.2 All Goods and Services supplied by the Seller are subject to the laws of New Zealand and the Seller takes no responsibility for changes in the law which affect the Goods or Services supplied.
16.3 Neither party shall be under any liability whatsoever to the other party for any consequential or special damages, and/or any indirect loss and/or expense (including loss of profit) suffered by either party arising out of a breach by a party of these Terms of Trade.
16.4 In the event of any breach of these Terms of Trade by either party, the remedies shall be limited to damages. Under no circumstances shall the liability of either party exceed the Price of the Goods.
16.5 Neither party shall be liable for any default due to any act of God, terrorism, war, strike, lock out, industrial action, flood, storm, or other event beyond the reasonable.
16.6 The Client shall not set off against the Price amounts due from the Seller.
16.7 The Seller may assign, license or sub-contract all or any part of its rights and obligations without the Client's consent.
16.8 The Seller reserves the right to review these Terms of Trade at any time and from time to time. If following any such review, there is to be any amendment(s) to these Terms of Trade, that amendment(s) will take effect from the date on which the Seller notifies the Client of such change(s).