Cloudy Bay Clams
Terms and Conditions of Sale
1 Defined Terms and Interpretations
1.1 In these Terms and Conditions the following words have the following meanings:
Goods means all goods supplied by Us to You;
Order Form means the order form which we require You to complete and submit to Us to order the supply of Goods from Us to You;
Price means the Price payable for the Goods;
Purchase Order means the written acceptance We provide to You in respect of any order for Goods you submit to us on the Order Form;
Terms and Conditions means these terms and conditions and any amendment expressly agreed in writing between Us and You; and
You and Your means the individual, company, partnership or trust that purchases Goods from Us.
We and Us means Cloudy Bay Clams Limited or Cloudy Bay Seafood Limited as is provided on the Purchase Order.
2 Sale of Goods
2.1 All Goods purchased by You from Us are sold only on these Terms and Conditions and the terms provided in the Purchase Order applying in respect of those Goods. Where there is any conflict between the Terms and Conditions and a Purchase Order the Purchase Order will prevail.
2.2 Any order or Order Form received by Us from You for the supply of Goods will constitute acceptance of the Terms and Conditions.
2.3 Our agents and representatives have no authority to make any oral representations, statements, warranties, conditions or agreements that conflict with these terms, except where specifically provided in a Purchaser Order. Any unauthorised representations will not bind us and will not form part of any contractual arrangement between us.
3.1 The Price will be the Price for Goods as advised by Us to You and will be confirmed in the Purchase Order. The Price will be exclusive of Goods and Services Tax (GST) unless otherwise stated, and You are required to pay GST in addition to the Price.
3.2 The Price is subject to alteration without notice and the Price payable by You for the Goods ordered will be Our current Price existing at the date the Goods are provided by Us to You.
3.3 The Price will be in the currency detailed in the Purchase Order. Where no currency is specified then it will be in New Zealand dollars.
4.1 All payments are required to be paid by You to Us within 7 days of the date of the invoice. Where a Purchase Order has been issued payments are required to be paid strictly in accordance with the provisions provided in the Purchase Order.
4.2 Interest on any overdue invoices will compound at a rate of 2% per calendar month from the date when the payment to Us became due until the date You complete payment to the Us.
4.3 Where any payment is not made on the due date for payment We may suspend the supply of further Goods to You, irrespective of whether we have supplied a Purchase Order or not in respect of the supply of further Goods, until payment has been made in full of all amounts then invoiced to you, including any interest for late payment which has accrued or accrues before payment in full is made.
5.1 Us and You agree that ownership of the Goods will not pass to You until all outstanding invoices for the particular Goods have been paid by You to Us.
5.2 It is further agreed that where any Invoice for any Goods is not paid by the due date then in respect of those Goods:
(a) Until such time as ownership of the Goods shall pass from Us to You, We may give notice in writing to You to return the Goods, including to divert any goods being delivered to you;
(b) Upon such notice being given, Your rights to obtain ownership or any other interest in the Goods will cease;
(c) You are only a bailee of the Goods, and until such time as We have received payment in full from You for those Goods, then You will hold all proceeds from the sale of those Goods on trust for Us;
(d) If You fail to return the Goods to Us, then We or our agents may enter upon and into land and premises owned, occupied or used by You, or any premises where the Goods are situated as the invitee of You and take possession of the Goods, and We will not be liable for any reasonable loss or damage suffered as a result of any action by Us under this clause;
(e) You indemnify Us for all costs and expenses which We may incur in effecting recovery and possession of the Goods from You.
6 Packaging and Shipping
6.1 We will package and ship the Goods as detailed in the Purchase Order.
6.2 If you require any special labelling, packaging or shipping requirements then these are to be advised in writing in the Order Form. In absence of such request We shall use our standard packaging and labelling as usually applies in respect of the Goods and the shipping arrangement that we consider is the best for the Goods being supplied.
7 Purchase Order Confirmation
7.1 We shall not supply Goods to You unless We have received an Order Form from You complying with our then current ordering procedures and that We have also confirmed in writing to You acceptance of that order by Purchase Order. The Purchase Order will be sent to Your email address or facsimile number provided in your Order Form.
7.2 In the Purchase Order We may specify an estimated delivery date. It is understood that this is an estimate only. Time is not of the essence unless expressly stated in the order and confirmed in writing by Us. Orders once confirmed are not able to be changed except by mutual agreement.
7.3 A Purchase Order represents a commitment in respect of the Goods detailed in the related Order Form only. Such confirmation does not impose any obligation to confirm any subsequent supply of Goods to You.
8.1 The risk in all live Goods will transfer from Us to You when we deliver the Goods to Your delivery address recorded in the Purchase Order or on the credit application form.
8.2 Any drip loss of up to 5% of the Goods initial package weight is considered usual and reasonable. Where You advise in writing that You consider there to be a drip loss that is greater than 5% of the initial package weight then upon our confirmation of that drip loss We will issue a credit note in respect of such drip loss, but such credit note will only be to the weight being 5% less than the Goods initial package weight.
8.3 Where You advise in writing that any live Goods suffer any mortality before the delivery of the Goods to You then upon our confirmation of those mortalities We will issue a credit note in respect of such the Goods that have died before delivery. You agree to dispose of at your cost all Goods which have died before delivery.
8.4 In terms of our investigations described in clauses 8.2 and 8.3 You agree to supply all reasonably requested information including photographs.
8.5 The risk in all frozen Goods will transfer from Us to You when the Goods are collected by the shipping agent from Our premises unless otherwise specified in the Purchase Order.
9 Intellectual Property
9.1 The copyright, trademark and all intellectual property in the Goods will remain Our property, and will only be used by You at Our discretion.
10 Limitation of Liability
10.1 Our liability is limited at all times in respect of the supply of any Goods to the value of those Goods and we will not be liable for any special, consequential or more remote losses or damages suffered by You or any other party claiming any interest through you.
11.1 You will inspect the Goods upon delivery and will within seven (7) days of delivery (time being of the essence) notify Us of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote of the Goods. You will afford Us an opportunity to inspect the Goods within a reasonable time following delivery if You believe the Goods are defective in any way. If You fail to comply with these provisions, the Goods will be presumed to be free from any defect or damage.
11.2 For defective Goods, which We have agreed in writing that You are entitled to reject, Our liability is limited to replacing the Goods.
11.3 We will not accept the return of Goods for credit.
12 Force Majeure
12.1 We will not be liable for failure to meet our obligations if the failure is brought about by a force majeure circumstance (i.e. any circumstances outside of our control).
13.1 If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
13.2 We reserve the right to review the Terms and Conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which We notify You of such change.
13.3 The New Zealand law shall govern all transactions between Us and You. You submit to the jurisdiction of the New Zealand courts.
13.4 No failure by Us to insist upon strict performance of any contractual arrangement, including any of these terms, or any delay in exercising any of Our rights or remedies shall constitute a waiver and variation of the contractual arrangement or a waiver of such right or remedy.
13.5 You may not assign your rights under any contractual arrangements with Us without first obtaining our written consent.
14.1 In consideration of Us supplying the Goods for the benefit of You the Guarantor (where a Guarantor has been provided by You):
- Guarantees payment of the Price and the performance by the You of any covenants and conditions; and
- Indemnifies Us from any loss We might suffer should You breach these terms and conditions.
14.2 No release delay or other indulgence given by Us to You will release or affect the liability of the Guarantor as a Guarantor of You.
14.3 Where there is more than one Guarantor then their liability pursuant to these terms and conditions shall be joint and several.
14.4 The Guarantors acknowledge that they are a principal and not a surety.