Terms and Conditions of Trade for Exporters, Food Service, Manufacturing, Wholesales & Independent Customers
1. Definitions
1.1 Unless otherwise specified, the following definitions apply in these Terms:
(a) Business Day means any day other than a Saturday, Sunday or public holiday (as that term is defined in section 5(1) of the Holidays Act 2003) in Auckland.
(b) Company means Acton International Marketing Limited, company number 22808.
(c) Contract means the contract formed in accordance with clause 1, comprising the Terms and the content of the particular Order.
(d) Customer means the person, firm, company or corporate entity that places an Order for Goods which is accepted by the Company in accordance with these Terms.
(e) Default Rate means 5% per annum.
(f) Delivery means delivery of the Goods to the Delivery Location as set out in clause 6.
(g) Delivery Location means the location or address for delivery as recorded in an Order or as otherwise requested by the Customer in writing and agreed by the Company.
(h) Force Majeure Event means an event that is beyond the reasonable control of the Party immediately affected by the event, including but not limited to acts of God, storms, fires, pandemics, epidemics and any natural disaster.
(i) Goods means the goods and products specified in an Order to be supplied by the Company to the Customer.
(j) GST means goods and services tax payable pursuant to the Goods and Services Tax Act 1985, at the rate prevailing from time to time.
(k) Intellectual Property Rights means all intellectual property rights and interests (whether existing in statute, common law or in equity), including copyright, know-how, trade secrets, recipes, trademarks, trade names, brands, domain names, designs, patents and other proprietary rights, recognised or protected by law.
(l) Order means an order for Goods placed by the Customer from time to time.
(m) Parties means the Company and the Customer and Party means either one of them.
(n) Personnel means all individuals engaged by or associated with either Party in relation to these Terms, including a Party’s directors, employees, subcontractors and agents.
(o) PPSA means the Personal Property Securities Act 1999.
(p) PPSR means the Personal Property Securities Register as established under section 139 of the PPSA.
(q) Price means the price payable by the Customer to the Company for the provision of Goods under a Contract.
(r) Returns Procedure means the procedure to be followed by the Customer as appended to these Terms and as updated, amended or supplemented by the Company from time to time.
(s) Terms means these terms and conditions as amended from time to time.
2. Interpretation
2.1 Unless otherwise specified, the following rules of interpretation apply in these Terms:
(a) References to the Parties include their respective executors, administrators, successors and permitted assignees.
(b) References to the words including, include or similar words do not imply any limitation and are deemed to have the words without limitation following them.
(c) References to written or in writing shall include all modes of presenting or reproducing words, figures and symbols in a visible form (including via email).
(d) References to $ are references to New Zealand dollars.
3. Application of Terms
3.1 A Contract is formed when the Company accepts an Order placed by the Customer. The Company can accept an Order verbally, in writing (including electronically) or by Delivery of the Goods. In addition to these Terms, a Contract includes the terms of each Order.
3.2 The Customer will be deemed to have accepted these Terms by placing an Order as set out in clause 1 or by accepting the Goods.
4. Orders
4.1 The Customer may place an Order with the Company via email at orders@acton.co.nz requesting the Company’s delivery of the Goods.
4.2 Upon receipt of an Order from the Customer the Company may request further information from the Customer in respect of the Order (if necessary).
4.3 Once placed, the Customer may not cancel an Order, unless with the written consent of the Company.
5. Title and Risk
5.1 Title to the Goods will remain with the Company until all amounts owing to the Company by the Customer under a Contract have been paid in full.
5.2 Risk in and of any loss or damage to the Goods passes to the Customer on Delivery.
5.3 The Parties acknowledge that the Contract creates a security interest pursuant to the PPSA and the Company may register a security interest on the PPSA over the Goods supplied to the Customer by the Company.
5.4 The Customer agrees and acknowledges that it:
(a) has no rights under sections 114(1)(a), 116, 120(2), 121, 125, 126, 127, 129, 131, 133, and 134 of the PPSA; and
(b) waives its rights under the PPSA to receive a copy of any verification statement.
6. Delivery
6.1 Delivery will be deemed to have taken place when the Goods are delivered by or on behalf of the Company to the Delivery Location.
6.2 If the Company provides an estimated delivery date, the Company will use its reasonable endeavours to meet that delivery date, however the Company will not be liable for any loss or damage suffered by the Customer or any third party for failure to deliver the Goods by that date.
6.3 Unless otherwise agreed in writing, the Company will arrange Delivery.
7. Inspection
7.1 The Customer must inspect and accept or reject (as the case may be) the Goods no later than two Business Days after Delivery.
7.2 The Customer must immediately inform the Company of any shortfall, missed delivery, damage or other issues relating to the Goods (Issues), including in accordance with the Returns Procedure.
7.3 If the Customer fails to inform the Company of any Issues and/or otherwise fails to comply with the Returns Procedures, the Customer will be deemed to have accepted the Goods as complying with an Order and the Company will have no liability to the Customer. In all other cases, clause 12 will apply.
8. Price
8.1 In consideration of the provision of the Goods, the Customer will pay the Company the Price. The Price will be as noted on the invoice provided by the Company to the Customer in respect of the Goods provided.
8.2 The Company may require the Customer to pay a deposit. Despite clause 1, the Customer must pay any deposit immediately on receipt of the Company’s invoice relating to the deposit. The Company reserves its right to not commence work on any Order unless and until the deposit has been received by the Company.
8.3 Unless otherwise specified in writing, GST, delivery/freight, handling, packaging, insurance (if applicable) and any other costs directly related to the provision of the Goods will be added to the Price.
9. Payment
9.1 The Company will invoice the Customer either following Delivery of the Goods or at the end of the month for Goods delivered during that month (at the discretion of the Company).
9.2 The Customer will pay the Company’s invoice in full, without set-off or deduction, on or before the date that is the 20th day of the month following the date of the Company’s invoice.
9.3 Unless otherwise agreed by the Company, the Customer’s payment must be made by credit card or direct credit to the bank account specified in the Company’s invoice.
9.4 If the Customer does not pay any invoice by the due date, then (without prejudice to any of the Company’s other rights), the Company may:
(a) charge interest on the outstanding amount at the Default Rate (calculated daily) until payment is made in full;
(b) charge the Customer any debt collection and legal costs on a solicitor-own client basis;
(c) suspend the supply of further Goods to the Customer under clause 10; or
(d) enter the premises at the Delivery Location and retake possession of the Goods.
10. Suspension and Termination
10.1 The Company may suspend the supply of Goods to the Customer if:
(a) the
Customer fails to pay any invoice when due;
(b) any credit limit the Company has agreed to grant to the Customer is or is likely to be exceeded;
(c) the Company has any concerns about the Customer’s creditworthiness; or
(d) the Company otherwise determines that it is reasonably necessary to suspend the supply of Goods.
10.2 Any costs incurred by the Company as a result of a suspension pursuant to clause 1 will be immediately due and owing by the Customer to the Company.
10.3 A Contract may be terminated immediately by either Party giving written notice to the other as a result of the other Party becoming insolvent, or being subject to the appointment of a receiver, manager, liquidator, or statutory manager, or committing an act of bankruptcy, or making a scheme of arrangement with its creditors.
10.4 The Company may, without cause, terminate any Contract by giving the Customer 10 Business Days written notice. In the event that the Company exercises its rights pursuant to this clause 4, the Contract will terminate and any outstanding Orders at the end of the period of notice will be deemed cancelled other than in a case of termination pursuant to clause 10.3, where any outstanding Orders will terminate immediately.
10.5 Upon termination of a Contract (for whatever reason) the Customer shall, within twenty (20) Business Days of the date of termination, pay to the Company all sums due and owing to the Company under all Contracts. Termination of the Contract will not affect any accrued rights or obligations of either Party.
10.6 The Parties agree that the provisions of clauses 5 and 10 to 18 survive termination or expiry of the Contract.
11. Force Majeure
11.1 The Company will not be liable to the Customer for any failure to perform its obligations under the Contract to the extent the failure is due to a Force Majeure Event.12. Liability
12.1 To the fullest extent permitted by law, the Company’s liability under a Contract, whether arising in contract, tort (including negligence) or otherwise, is limited to either the:
(a) replacement of the Goods; or
(b) the total Price of the relevant Goods paid to the Company by the Customer, at the election of the Company.
12.2 The Company will not in any case be liable for damage to or loss of Goods caused or contributed to by the Customer or its Personnel.
12.3 If the Company is held liable to the Customer or any other person for any reason, the Company’s total liability under a Contract whether arising in contract, tort (including negligence) or otherwise, is limited to the aggregate sum of $5,000.
12.4 Save as expressly provided in these Terms, neither Party will be liable whether arising in contract, tort (including negligence) or otherwise, for any loss of profits or any indirect or consequential loss or damage arising out of these Terms.
13. Recalls
13.1 If either Party reasonably considers that a recall of the Goods (Recall) is or may be required, that Party shall promptly notify the other in writing of this fact, setting out in reasonable detail the issue(s) that warrant or may warrant the Recall.
13.2 Any Recall shall, except where the Recall is required by law or any legislative or regulatory authority, require the prior written consent of the Company.
13.3 If a Recall is to occur, the Parties shall co-operate with one another in good faith in order to ensure that such Recall is carried out as expediently and effectively as commercially possible, and in such manner as reasonably directed in writing by the Company.
14. Consumer Guarantees and Fair Trading
14.1 The Parties agree and acknowledge that the Consumer Guarantees Act 1993 (CGA), the Fair Trading Act 1986 (FTA), and other statutes may impose warranties, conditions or obligations on the Company which cannot by law (or which can only to a limited extent by law) be excluded.
14.2 Other than as expressly provided for in these Terms, the Company excludes all such imposed warranties, conditions or obligations to the extent permitted by law and excludes any warranty, condition or obligation imposed or implied under common law, equity or otherwise.
14.3 Where the Customer is acquiring the Goods for the purposes of a business the Parties acknowledge and agree that:
(a) the Customer is acquiring the Goods for the purposes of a business pursuant to sections 2 and 43(2) of the CGA and accordingly the CGA will not apply; and
(b) all warranties, conditions, and other terms implied by the CGA or sections 9, 12A, and 13 of the FTA are excluded from the Contract to the fullest extent permitted by law and the Parties further acknowledge and agree that it is fair and reasonable that the Parties are bound by this clause 14.
15. Collection of Information
15.1 The Customer consents to the Company’s collection, use and disclosure of the Customer’s personal information for purposes in connection with the Company’s provision of the Goods including, but not limited to, carrying out credit checks on the Customer with a credit reporting agency. The Company will comply with its obligations under the Privacy Act 2020 in respect of its collection, use and disclosure of the Customer’s personal information.16. Intellectual Property
16.1 All Intellectual Property Rights owned by either Party and existing immediately prior to the point on which the Contract was formed will remain the exclusive property of that Party.
16.2 All Intellectual Property Rights in the Goods, whether existing now or in the future, are the property of the Company.
16.3 The Customer agrees that all new Intellectual Property Rights that arise or are created in the course of supplying the Goods will be owned by the Company.
16.4 The Customer shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses), suffered or incurred by the Company arising out of or in connection with any claim made against the Company for actual or alleged infringement of a third party's Intellectual Property Rights arising out of, or in connection with, the supply or use of the Goods by the Customer, or any breach by the Customer or its Personnel of this clause 16.
17. Notices
17.1 All notices and other communications to be given under a Contract must be in writing in English and be addressed to the Party to whom it is to be sent at the physical address or email address from time to time designated by that Party in writing to the other Party.
17.2 Any notice or communication given under a Contract shall be deemed to have been received:
(a) at the time of delivery, if delivered by hand; or
(b) if sent by email, on the date and time at which it enters the recipient's information system, as evidenced (if required by the recipient, where delivery is disputed) in a confirmation of delivery report from the sender's information system which indicates that the email was sent to the email address of the recipient.
17.3 Any notice or communication received or deemed received after 5.00pm or on a day which is not a Business Day in the place to which it is delivered, posted or sent will be deemed not to have been received until the next Business Day in that place.
18. General
18.1 A Contract comprises the entire agreement of the Parties in relation to the supply of Goods and supersedes any previous discussions, arrangements and representations between the Parties.
18.2 Nothing in the Contract should be interpreted as constituting either the Company or the Customer, an agent, partner or employee of the other and neither Party will have the authority to act for or to incur any obligation on behalf of the other Party except as expressly provided for in the Contract.
18.3 The Company will not be deemed to have waived any right under these terms unless the waiver is in writing and signed by the Company. A failure by the Company to exercise a right, including a delay in exercising any right, will not operate as a waiver of that right. Any such waiver will not constitute a waiver of any subsequent or continuing right or of any other provision of these Terms.
18.4 The Customer may not assign, subcontract or otherwise transfer any of its rights, benefits or obligations under the Contract without the prior written consent of the Company, such consent not to be unreasonably withheld.
18.5 Each Party agrees that it will, at all times, comply with all laws, regulations and orders in carrying out its obligations under a Contract.
18.6 Each Party warrants and represents to the other Party that it has full power and authority to agree to enter into and bind itself to a Contract.
18.7 If any provision of the Contract is found by a court or other competent authority to be void or unenforceable, such provision will be deemed to be deleted from the Contract and the remaining provisions of the Contract will continue in full force and effect.
18.8 The Company may amend a Contract or these Terms from time to time by giving notice to the Customer in writing. Any amendment to a Contract or these Terms will apply to any subsequent Order or Contract (as the case may be) after the Company notifies the Customer of the amendment. A Contract or these Terms may otherwise be amended or varied in writing and signed by each Party.
18.9 The Contract, and any claims arising out of or in connection with it or its subject matter or formation (including non-contractual claims), will be governed by and construed in accordance with the laws of New Zealand and the Parties irrevocably submit to the exclusive jurisdiction of the courts of New Zealand for any matter arising under or relating to the Contract or its subject matter or formation or the relationships established by it (including non-contractual claims).
Returns Procedure
ON DELIVERY
The Company uses third party companies to deliver Goods to you. When a delivery arrives, you should:
1. Inspect the Goods for external damage.
2. Check that the number of cartons or pallets received is the same as the number printed on the Proof of Delivery (POD).Do not sign the POD until you have undertaken the two checks above. If you cannot easily count the cartons without fully unpacking the delivery, write “Subject to count” on the POD. If there is any visible damage to the Goods or if cartons/pallets are missing, you should:
1. Make a note of this on the POD (for example, write “packaging ripped”, “cartons damaged” or “order incomplete”) before signing.IMMEDIATELY AFTER DELIVERY
All Goods should be unpacked and checked within two business days of being delivered to you. If you discover damaged Goods or if Goods are missing from your order, you should:
1. Send an email to orders@acton.co.nz notifying the Company of the damaged or missing Goods. Your email should attach:
(a) A copy of the POD (a photograph of the POD is fine).
(b) A photograph of any damage.
(c) Details of any missing Goods and a copy of your original order.
(d) A short note confirming that the damage or short delivery was not visible on Delivery and was only discoverable after the Goods were unpacked or unwrapped.
2. Damaged Goods should be set aside and kept in suitable storage conditions until collected on behalf of the Company.
MISSED DELIVERIES
If:
1. you are expecting a delivery of Goods on a particular date and they do not arrive; oryou should immediately send an email to orders@acton.co.nz notifying the Company of the missing/late Goods. Your email should include your order number (or a copy of your order).
The returns procedure steps stipulated above are also set out in diagrammatic format below.
