The following Terms shall be incorporated into and form part of all contracts for the supply of Goods by Naturally Pet Ltd.
1. Definitions: In these Terms: “the Contract” means the contract between Naturally Pet Ltd and the Customer, of which these Terms form part, for the supply of Goods by Naturally Pet Ltd. “the Goods” means, as the context may require, the products to be supplied, by Naturally Pet Ltd.
2. Applicable Terms: The only terms and conditions which shall be binding on Naturally Pet Ltd are these Terms, and any other terms and conditions which Naturally Pet Ltd expressly accepts in writing as being additional to these Terms, and terms and conditions importing liability on Naturally Pet Ltd as are required or imposed by law without right of exclusion. Except as included in the foregoing all other terms and conditions (including warranties as to quality or fitness for purpose) whether expressed or implied by statute, common law, trade custom or otherwise are expressly excluded.
3. Conflicting Terms: In the event of any conflict between these Terms and any document issued by the person buying the Goods from Naturally Pet Ltd (the “Customer/account holder”) these Terms shall prevail.
4. Representations: No agent or representative of Naturally Pet Ltd, and no reseller of the Goods, is authorised to make any representations or warranties concerning the Goods, and no such representation or warranty shall be binding on Naturally Pet Ltd, unless first confirmed in writing by Naturally Pet Ltd.
5. Quotations/Prices: A quotation may be revised and withdrawn at any time prior to Naturally Pet Ltd express acceptance in writing of an order based on that quotation. No order shall be binding on Naturally Pet Ltd until expressly accepted in writing by Naturally Pet Ltd. Naturally Pet Ltd prices are subject to alteration without notice and the Customer shall pay the price ruling at the time the Goods are delivered. All quotations and prices are exclusive of GST, insurance, freight and other handling charges which shall be invoiced by Naturally Pet Ltd and payable by the Customer.
6. Delivery/Risk: Delivery shall occur on the earlier of the Customer taking possession thereof or the dispatch of the Goods from Naturally Pet Ltd premises in accordance with the agreed delivery arrangements but if the Customer fails or refuses or indicates that it will fail or refuse to take or accept delivery then the Goods shall be deemed to have been delivered when Naturally Pet Ltd was willing to deliver them. Risk in the Goods shall pass to the Customer upon the (actual or deemed) delivery of the Goods to the Customer.
7. Payment: Payment shall be made in advance prior to, or upon, delivery of the Goods except where Naturally Pet Ltd has agreed to provide credit to the Customer, in which case payment shall be made by the 20th of the month following the date of invoice. The Customer shall make payment of all amounts due to Naturally Pet Ltd without any delay or deduction whether by way of set-off, counterclaim or otherwise. Time shall be of the essence in relation to such payment.
8. Property: Where the Consumer Guarantees Act 1993 does not apply (whether pursuant to clause 13 or otherwise), property in the Goods shall pass to the Customer when all moneys payable to Naturally Pet Ltd by the Customer in relation to the Goods and under all other contracts between Naturally Pet Ltd and the Customer have been paid in full. For so long as property in the Goods remains with Naturally Pet Ltd, the Customer shall store the Goods separately and clearly identify them as the property of Naturally Pet Ltd.
9. Credit Arrangements: Naturally Pet Ltd shall be under no obligation to provide credit to any Customer. Any agreement to provide credit shall only be effective if in writing signed on behalf of Naturally Pet Ltd Naturally Pet Ltd may at any time upon notice to the Customer alter or cancel any agreed credit arrangement and/or require from the Customer immediate payment of all outstanding amounts and/or security satisfactory to Naturally Pet Ltd for the Customers existing and future payment obligations.
10. Overdue Accounts: Naturally Pet Ltd will seek debt recovery through debt collection agency if account is outstanding for more than 90 days and in this event costs associated with this collection will be the responsibility of the Customer.
Authority to Sell: Where the Goods are acquired by the Customer for the purposes of resupply in trade then notwithstanding that property in the Goods remains with Naturally Pet Ltd, the Customer is authorised to on-sell the Goods in the ordinary course of business provided that such authority may be revoked by Naturally Pet Ltd at any time by written notice and shall be deemed automatically revoked if the Customer shall commit any event of default as described in clause 16.
12. Sale Proceeds: Any book debt created by the on-sell of any of the Goods in respect of which property has not passed to the Customer, and the proceeds of sale of such Goods when received by the Customer, shall be held upon trust by the Customer for Naturally Pet Ltd and such proceeds of sale shall be placed by the Customer in a separate bank account and shall be first applied towards satisfaction of the Customers indebtedness to Naturally Pet Ltd (any remaining amount may be retained by the Customer).
13. Delay etc: Stipulations as to the time for the performance of any obligations by Naturally Pet Ltd shall not be of the essence. Naturally Pet Ltd shall not be liable for failure to perform any obligations where such failure results from any cause beyond Naturally Pet Ltd reasonable control.
14. Consumer Guarantees Act: Where the Customer acquires or holds itself out as acquiring any Goods or incidental services supplied by Naturally Pet Ltd for the purposes of a business (as “business” is defined by the Consumer Guarantees Act 1993) the provisions of that Act are hereby expressly excluded and shall not apply.
15. Liability: Where the Consumer Guarantees Act 1993 does not apply (whether pursuant to clause 13 or otherwise) Naturally Pet Ltd shall:
(a) Have no liability in relation to the Goods unless:
i) a claim for the supply of incorrect (as to quality or type), damaged or defective goods is made in writing by the Customer within 14 days of dispatch of those goods from Naturally Pet Ltd premises: and
ii) the Customer establishes to Naturally Pet Ltd satisfaction that Naturally Pet Ltd is responsible for such incorrect, damaged or defective goods and the Customer provides such written explanations or other information as Naturally Pet Ltd may require in relation thereto: and
iii) the Customer shall at its expense, if required by Naturally Pet Ltd, return the Goods to Naturally Pet Ltd Supplies premises or as Naturally Pet Ltd may direct;
(b) Have no liability for any incorrect, defective or damaged goods in excess of the value of the Goods at time of supply:
(c) Not be liable (whether in contact or tort, including negligence) for any instructions, advice, or information given or
provided to any person in relation to the Goods or otherwise: and
(d) Not be liable for any special or consequential loss, damage or injury of any kind whether arising from negligence of Naturally Pet Ltd, its servants agents or contractors or otherwise (“consequential loss” includes loss of use of goods, income or profits). Where the Consumer Guarantees Act 1993 does not apply and is not excluded by clause 13, Naturally Pet Ltd liability to the Customer shall not exceed that determined by reference to the provisions of that Act.
16. Default: If the Customer:
(a) defaults in the due payment of any moneys payable to Naturally Pet Ltd under the Contract or otherwise; or
(b) is in default in the performance of its obligations under the Contract or any contact between Naturally Pet Ltd
and the Customer, or
(c) commits any act of bankruptcy or is unable or deemed to be unable to pay its debts as and when they fall due; or
(d) enters into any composition or arrangement with its creditors; or
(e) (in the case of a company) does any act which would render it liable to be wound up or if a resolution is passed or proceedings are commenced for the winding up of the Customer or if a receiver or a statutory manager shall be appointed over all or any of its assets, Naturally Pet Ltd may, at its option, terminate the Contract, and payment for the Goods delivered under the Contract up to the date of such termination and any other moneys payable by the Customer to Naturally Pet Ltd shall immediately become due and payable.
17. Rights of Repossession: If any of the events referred to in clause 16 occur, Naturally Pet Ltd shall be entitled to enter upon the Customer’s premises or as the agent of the Customer, to enter upon any other premises where the Goods are situated and take possession of and remove all such Goods in respect of which property has not passed to the Customer without being responsible for any damage thereby caused, and Naturally Pet Ltd ,may resell any or all such Goods and apply the proceeds in or towards payment of the price of those Goods and any other moneys owing to Naturally Pet Ltd by the Customer.
18. Indemnity: The Customer shall indemnify and keep indemnified Naturally Pet Ltd from and against all losses, damages, costs, proceedings, claims and demands which Naturally Pet Ltd may incur, or be subject to, arising out of or as a consequence of any act or omission of the Customer or any person employed or engaged by the Customer.
19. Waiver: The failure by Naturally Pet Ltd at any time to enforce any provision of the Contract shall not be construed as a waiver of any such provision or in any way affect the validity of the Contract or any part thereof. All waivers shall be effective only if in writing signed by Naturally Pet Ltd.
20. Remedies Cumulative: All remedies available to Naturally Pet Ltd are cumulative and may be exercised concurrently or separately and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies.
21. Assignment: The Customer may not assign all or any of its rights or obligations under the Contract without the prior written consent of Naturally Pet Ltd. Naturally Pet Ltd may assign all or any of its rights or obligations under the Contract.
22. Governing Law: The Contract shall be governed by New Zealand law. The Customer acknowledges the non-exclusive jurisdiction of the New Zealand courts in relation to the Contract.