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Business Terms of Sale

CANTERBURY OF NEW ZEALAND LTD

TERMS OF TRADE

1. TERMS OF CONTRACT

1.1 Canterbury of New Zealand Limited (“the Seller”) will supply Goods to the purchaser (“the Buyer”) on these Terms of Trade unless the Seller agrees in writing to change them.

1.2 The Seller will not be bound by any conditions included in the Buyer’s Order unless it accepts them in writing.

1.3 If the Seller does not accept any conditions included in the Buyer’s order and the Buyer accepts delivery of Goods delivered under the order, the acceptance of delivery by the Buyer will be deemed to be acceptance by the Buyer of these Terms of Trade notwithstanding anything that may be stated to the contrary in the Buyer’s inquiries or on the Buyer’s order.

1.4 The Seller has the right to not accept any order or to cancel any orders, which it has accepted if due to circumstances beyond the Seller’s control it would be impractical or uneconomic to fill the order.

2. PRICE

2.1 Unless otherwise agreed in writing the price for the Goods is stated in New Zealand dollars and shall be the current wholesale price charged by the Seller at the date of delivery.

2.2 Unless otherwise agreed in writing the price includes the cost of delivery by the normal road, rail, sea and air transport used by the Seller. The additional cost of any special delivery or any special packaging requested by the Buyer may be added to the price.

2.3 Quoted prices may be altered at any time before delivery if wages, salaries, costs of raw materials, freight charges, duty and/or exchange rates fluctuate before delivery.

3. PAYMENT

3.1 Unless otherwise agreed in writing the Buyer must pay for the Goods by no later than the 20th day of the month following despatch of the Goods from the Seller’s premises.

3.2 Failure to pay for Goods by the due date may result in further deliveries being stopped until the overdue payments have been made.  The Seller reserves the right to request from the Buyer such guarantee or security as it may think desirable to secure to the Seller all sums due by the Buyer and may refuse to supply further Goods to the Buyer until such security is given.

3.3 In the event of late payments (and to enable the extra costs incurred by the Seller arising from late payment to be recovered) the Seller may charge interest on a daily basis to the Buyer at a rate equal to 5% per annum over the Seller’s bank overdraft rate from time to time, until the overdue amounts are paid, with the interest accruing after as well as before any judgement which the Seller may obtain against the Buyer.  The Buyer will also be liable to pay all of the Seller’s expenses and legal costs incurred in obtaining a remedy for the Buyer’s failure to pay for the Goods when due.

3.4 The Buyer may not set off against the price payable for the Goods any claims, which the Buyer might have against the Seller.

3.5 The Seller may accept and apply payments from the Buyer in respect of any indebtedness and the Seller will not be bound by any conditions or qualifications attaching to such payments.

3.6 The Seller may set off against any moneys owed by the Seller to the Buyer any moneys which the Buyer owes to any subsidiary or related companies of the Seller so that the obligation of the Seller to the Buyer shall be to pay the net balance only.  If any of the Seller’s subsidiary or related companies owe moneys to the Buyer then they may set off against such moneys any moneys owed by the Buyer to the Seller in respect of any Goods and shall only be liable to pay the net balance and the Buyer agrees that this provision is made for the benefit of such subsidiary and related companies of the Seller and may be enforced directly by them in their own respective names.

4. RISK AND OWNERSHIP

4.1 All risk in the Goods will pass to the Buyer upon delivery.

4.2 Even if risk has passed ownership in the Goods will not pass to the Buyer until the Buyer has paid all indebtedness of the Buyer to the Seller.

4.3 Until the Buyer has paid for the Goods in full:

a) The Buyer holds the Goods as fiduciary for the Seller and will deal with them as agent for and on behalf of the Seller (but will not hold itself out as the Seller’s agent to any third parties).

b) If directed by the Seller the Buyer will store the Goods so that they can be clearly recognised as the property of the Seller.

c) If the Buyer resells the Goods the proceeds of any resale will belong to the Seller and the Buyer will pay the same into a separate account for which separate records are kept and all claims which the Buyer holds against third parties will be handed over to the Seller.

d) The Buyer irrevocably gives the Seller and its agents the right to enter the Buyer’s premises without giving notice and to remove any of the Goods and resell them.

e) If any of the Goods become part of a product or mass (through, or by whatever process) such that the identity of those Goods is lost in the product or mass, the security interest created by this clause continues in the product or mass in accordance with the PPSA;

f) If any of the Goods are installed in, or affixed to, and become an accession to, other Goods, the security interest continues in the accession in accordance with the PPSA;

g) Failure by the Buyer, either to store the Goods as required in clause 4.3(b) or to separately account for the sale proceeds under clause 4.3(c) will not prejudice the Seller’s claim to the Goods or the sale proceeds.

5. DELIVERY

5.1 Delivery shall be made in accordance with the provisions contained in any Customer Service Policy, which the Seller may publish from time to time.  Delivery shall be deemed to be completed upon receipt of the Goods by a carrier for delivery to the customer.

5.2 The Seller will use best endeavours to see that deliveries are made according to schedule but any period or dates quoted for delivery are approximate only.  The Seller will not be responsible for delivery delays due to causes beyond its control.  Transportation will be arranged by the Seller unless otherwise agreed.

5.3 Good may be delivered in instalments.

5.4 Any one order for less than $400.00 worth of Goods will incur a handling fee.

6. WARRANTIES

6.1 Subject to the following clauses the Seller warrants that the Goods are manufactured in accordance with the usual practices of the clothing or textile industry and are free from all defects in workmanship and materials.

6.2 No warranty is given and the Seller shall not be liable:

a) In respect of Goods which have been designated “seconds”, “mediums”, “clearings” or “specials”.

b) For loss caused by any factors beyond the Sellers control.

c) For failure to deliver the Goods by any specified dates.   

d) For any indirect or consequential loss of any kind.

6.3 The Seller’s total liability for defective or damaged Goods is limited at the Seller’s option to either:

a) Replacing the defective or damaged Goods: or

b) Refunding the price of the defective or damaged Goods.  Except under  clauses 6.1 and 6.3 the Seller has no liability for the Goods and gives no representations or warranties in relation to them.  All other warranties expressed or implied by law are excluded.

7. CLAIMS

7.1 The Seller will at its option either replace defective goods or give a credit or refund for them as long as the Buyer’s claims has specifically identified the Goods and the defect and the Buyer returns the defective Goods to the Seller in their delivered state within 21 days after delivery.

7.2 Goods must be returned freight paid and the Buyer can claim for any reasonable freight charges.

7.3 The Buyer shall have no claim in relation to Goods, which it has processed, altered or utilised.

8. RESTRICTIONS

8.1 Unless otherwise agreed the goods are being sold by the Seller to the Buyer for the direct sale to the public from a site or sites previously approved by the Seller.  The Buyer may not:

a) Appoint anyone to resell the Goods; or

b) Sell the Goods to anyone who or which intends to resell the Goods; or

c) Sell the Goods to the public other than from retail sites previously approved by the Seller.  The Seller reserves the right in respect of any particular supply of Goods to require that such Goods are only sold on a retail site nominated by the Seller.

d) Embroider or affix any unauthorised logos, marks, names, emblems, designs, badges or depictions to the Goods without the prior written consent of the Seller.

9. SELLER

9.1 The Buyer may not cancel any order or part of it without the Seller’s written consent.  As a condition of giving such consent the Seller may require that it be reimbursed for the cost of reallocating labour and materials and other direct or indirect costs incurred by the Seller to the date of cancellation.

9.2 The Seller shall be entitled without liability to the Buyer to cancel any order or delivery of an order if;

a) The Buyer becomes insolvent, enters into a scheme of arrangement with creditors (otherwise that with the consent of the Seller) or the Buyer ceases or threatens to cease to carry on all or a material part of its business or if the Buyer is a company it has a receiver appointed in respect of all or any of its assets, or an order is made or other steps are taken for the dissolution of the Buyer.

b) The Seller or Buyer is refused any required licences or permits in respect of the Goods.

c) The Buyer breaches any term of these terms of trade.

10. PRIVACY ACT

10.1 The Seller retains the right to seek information about the Buyer from any source the Seller considers appropriate from time to time as and when the Seller considers necessary, and the Buyer consents to the disclosure of credit information about the Buyer to the Seller from any source.

10.2 The Buyer consents to the Seller disclosing information held about the Buyer to any company in the Canterbury Group or any marketing or promotions agency or company employed by them, and to the Seller and/or any company in the Canterbury Group using information held about the Buyer to enable the Seller and any company in the Canterbury Group or any marketing or promotions agency or company employed by them to provide the Buyer with information relating to Canterbury products or services.

10.3 The Seller retains the right, in the event the Buyer fails to pay for any goods, to provide details of the Buyer and the Buyer’s debt(s) to any entity the Seller chooses for the purposes of collection.  Information about either individuals supplied by the Buyer has been disclosed to the Seller with their consent.

10.4 The Buyer understands that the Buyer is entitled to have access to and request the correction of information held by the Seller and the names and addresses of the entities (if any) and the companies to which the Seller has disclosed information about the Buyer.

11. CONSUMER GUARANTEES ACT

11.1 These terms and conditions have been prepared on the basis that the supply of Goods under these terms and conditions are outside the ambit of the Consumer Guarantees Act 1993 (“the CG Act”). In the event the CG Act is determined by the courts of New Zealand to apply to any particular supply of Goods then:

(a) With respect to that supply of such Goods to non domestic users, the CG Act shall not apply pursuant to section 43 of the CG Act.

(b) With respect to the supply of such Goods to domestic users, the CG Act shall apply and shall expressly override any of the terms and conditions inconsistent with it.

11.2 Where the Buyer is supplying Goods to non domestic users, The buyer shall contract out of the CG Act and the Buyer shall indemnify the Seller in respect of any failure to comply with this provision.

12. PERSONAL PROPERTY SECURITIES ACT 1999

12.1 Security:

Without limiting anything else in these terms the Buyer acknowledges and agrees that:

(a) These Terms create in favour of the Seller, a security interest in all present and after acquired Goods (being for the avoidance of doubt, all the Buyer’s present personal property and after acquired personal property except for any item of personal property which has not (or which is exclusively the proceeds of any item of personal property which has not) been supplied by the Seller to (or for the account of) the Buyer) to secure the payment by the Buyer to the Seller of all indebtedness of the Buyer to the Seller. 

(b) These Terms shall apply notwithstanding anything, express or implied, to the contrary contained in the Buyer’s order; and

(c) the security interest continues until the Seller gives a final release.

12.2 Financing statement

The Buyer undertakes to: 

(a) sign any further documents and/or provide any further information (which information you warrant to be complete, accurate and up-to-date in all respects) which the Seller may reasonably require to enable the Seller to perfect and maintain the perfection of its security interest (including by registering a financial statement and financing change statement);

(b) not register a financing change statement or a change demand in respect of the Goods (as those terms are

 defined in the PPSA) without our prior written consent; and

(c) give the Seller not less than 14 days prior written notice of any proposed change in the Buyer’s name and/or any other change in the Buyer’s details (including, but not limited to, changes in the Buyer’s address, facsimile number, trading name or business practice).

12.3 Waiver and Contracting Out

(a) Unless otherwise agreed to in writing by the Seller the Buyer waives the right to receive a verification statement in respect of any financing statement or financing change statement relating to the security interest.

(b) To  the maximum extent permitted by law, the Buyer waives its rights and, with our agreement, contract out its rights under the sections referred to in section 107(2)(c), (d), (h) and (i) of the PPSA.

(c) The Buyer agrees that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms and, with the Seller’s agreement, contract out of such sections.

(d) The Buyer and Seller agree that section 109(1) of the PPSA is contracted out of in respect of particular Goods if and only for as long as the Seller is not the secured party with priority over all other secured parties in respect of those Goods.

12.4 Defined Terms

“Goods” means all Goods supplied from time to time by the Seller to the Buyer, provided that:

(a) where  the Goods supplied are the Buyer’s Inventory, then all references to Goods in these Terms shall, in respect of those Goods, be read as references to Inventory; and 

(b) where the Goods supplied are not Inventory then all references to Goods in these Terms shall, in respect of those Goods, mean the Goods described in any one or more of the relevant order form, packing slip or invoice (or its equivalent, whatever called) relating to those Goods, on the basis that each such order form, packing slip or invoice (or its equivalent) shall be deemed to be incorporated in, and form part of, these Terms.

“Inventory” has the meaning given to that term in the PPSA.

“PPSA” means the Personal Property Securities Act 1999 as amended or substituted from time to time.

“Terms” means these terms of trade.

Unless the context otherwise requires, words and phrases shall have the meanings given to them in, or by virtue of, the PPSA.

13. GENERAL

13.1 If the Seller waives any breach of these Terms of Trade by the Buyer the waiver will not affect the Seller’s right to exercise its rights under these Terms of Trade at any future time.

13.2 Each clause in these Terms of Trade is severable and if any clause is held to be illegal or unenforceable then the remaining clauses will remain in full force and effect.

13.3 Governing Law

These Terms of Trade shall be interpreted in accordance with and governed by the laws of New Zealand.  The New Zealand courts shall have exclusive jurisdiction over any dispute in relation to the Goods.

13.4 Any Customer Service Policy which the Seller may publish and distribute to the Buyer may be altered by the Seller at any time without reference to the Buyer.  Except as provided in these Terms of trade the terms of the Customer Service Policy shall not constitute binding obligations of the Seller.

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