In these Terms of Trade (“Terms”) “we”, “us” and “our” refers to Blis Technologies Limited and “you” refers to our Customer. By agreeing to acquire Goods from us you agree to these Terms to the exclusion of your terms (if any).
1. DELIVERY
1.1 – Unless we agree otherwise, Goods must be collected from our premises or will be Delivered to you at your cost.
1.2 – We reserve the right to Deliver the Goods at one time or by reasonable instalments.
1.3 – Any date specified for Delivery is an estimate only and time shall not be of the essence. If no date is specified, we shall Deliver the Goods within a reasonable time. We shall not be liable for any loss caused by any delay in Delivery.
1.4 – Unless otherwise agreed, the Goods shall be Delivered EXW (Incoterms 2020). If an Incoterm is not stated, Delivery shall take place once the Goods are loaded onto a transport vehicle at our warehouse premises or any other specified location where the Goods are held. The carrier will be your agent.
1.5 – If you fail to take Delivery at the agreed time and place, we shall be entitled to treat the contract as repudiated in which case you shall indemnify us for all resulting loss and we may (but shall not be obliged to) store all or any of the Goods at your risk and expense.
2. ORDERS
2.1 – All orders must be in writing. No order is binding on us until we accept it in writing (“Acceptance”). We reserve the right to decline to accept any order of Goods from you for any reason.
2.2 – Each Accepted order shall constitute a separate contract incorporating the terms in the Acceptance, these Terms, the applicable Incoterm and any other terms incorporated by reference. No terms contained or referred to in your order, and no other variation of these Terms, shall form part of a contract unless agreed in writing by us. In the event of inconsistency, terms set out in an Acceptance prevail over these Terms.
3. TITLE AND RISK
3.1 – Legal title to the Goods will not pass to the you until they have been paid for in full and you have performed all your other obligations under these Terms. Until legal title passes you shall hold the Goods as bailee for us.
3.2 – Risk in the Goods shall pass to you in accordance with the Incoterm stated in the Acceptance. If an Incoterm is not stated, risk in all Goods passes to you when the Goods leave our premises. You shall insure Goods for their full price, and shall not sell, dispose or part with possession of them or do anything else inconsistent with our ownership of the Goods, from Delivery until title in them passes to you.
3.3 – So long as legal title to the Goods remains with us, you shall without charge keep the Goods separate from all other goods in a way which will enable them to be readily identified as belonging to us. If a contract is terminated or if circumstances exist entitling us to treat any contract as repudiated, we may by our representatives enter your premises (or any premises under your control) and take possession of the Goods without liability for the tort of trespass, negligence or payment of any compensation to you. You shall indemnify us against any liability we incur for anything reasonably done in accordance with this clause.
3.4 – You acknowledge that we may register a security interest against you under the Personal Property Securities Act 1999 or under any equivalent personal property security regime in your jurisdiction.
4. PRICE
4.1 – All prices are stated exclusive of Goods & Services Tax (GST), Value-Added Tax (VAT), sales tax or any other applicable tax or duty and the cost of Delivery and/or insurance, all of which shall be paid by you at the time when payment of the price for the Goods is due.
4.2 – Prices published on our web site or as provided by us in correspondence are indicative and may change at any time prior to Acceptance. The price for the Goods in an order will be confirmed in the relevant Acceptance.
4.3 – Where, for any reason, the price of the Goods confirmed in an Acceptance is different from the price quoted or the price outlined in your order, the Acceptance shall be conditional on your acceptance in writing of such price change.
4.4 – Any quotations provided to you will be based on information available to us at the relevant time. We reserve the right to amend any quotation at any time if our costs increase (including, but not limited to, any increase in the cost of labour, materials, transport, tax, exchange rates or other costs) or the specifications change.
5. PAYMENT
5.1 – Unless otherwise agreed, payment for each Delivery shall be made in accordance with the payment terms and in the currency stipulated on the Acceptance. If payment terms are not stipulated, payment of the contract price shall be made in full on Acceptance.
5.2 – We may require you to pay a deposit, being an advanced payment for Goods supplied before those Goods are Delivered.
5.3 – We are under no obligation to supply Goods to you on credit. If we grant you credit, you agree to pay our invoices by the 20th of the month following the date of the invoice unless otherwise agreed.
5.4 – You agree to give any further securities as we may require from time to time, in the form required by us, and to comply with all of your obligations under those securities.
5.5 – We may notify you at any time that we are going to stop supplying Goods to you on credit. This shall be without prejudice to your obligation to pay amounts owing.
5.6 Time for payment is of the essence. All payments shall be made without set-off or deduction. Receipt of a cheque, bill of exchange, or other negotiable instrument will not constitute payment and you remain liable for payment until payment is received by us.
5.7 – In the case of export sales, payment must be made by confirmed irrevocable letter of credit unless we agree otherwise. Letters of credit shall be established through a first-class bank and be irrevocable, confirmed and without recourse available for our draft at sight and otherwise in a form satisfactory to us.
5.8 – We may apportion payments to outstanding accounts as we see fit.
6. DEFAULT
6.1 – You will be in Default if:
a. you fail to pay an amount due under these Terms by the due date for payment;
b. you commit a breach of any of your other obligations under these Terms, the Security or the terms of any other contract you have entered into, or enter into in the future, with us or one of our related entities;
c. you become insolvent, are wound up, have a receiver appointed, enter into any composition or arrangement with your creditors, do any act which would render you liable to be placed in liquidation or have a receiver appointed over your property, commit an act of bankruptcy, cease to be of full legal capacity, or die;
d. Goods that we have retained title to are at risk; or
e. an event or a series of events (whether related or not) occurs which, in our opinion, may cause a material adverse change in your ability to meet your obligations to us.
6.2 – If you are in Default then we may, at our option, do any one or more of the following:
a. charge you default interest at 10% per annum on any late payments calculated on a daily basis from the due date until the date payment is received;
b. require you to remedy the default in the manner and within the period that we tell you;
c. require you to pay to us all amounts you owe us immediately;
d. suspend or terminate your account with us;
e. enforce security interests created by these Terms; and
f. exercise any rights that we have under these Terms or that are available to us at law.
6.3 – We may suspend or terminate your account with us at any time in our sole discretion. If your account is terminated, you must immediately pay us any amount you owe us. Termination will not affect any of our rights that have arisen before termination.
7. PERSONAL PROPERTY SECURITIES ACT 1999 (“PPSA”)
7.1 – Clause 3.1 creates a security interest in Goods we supply to you.
7.2 – You shall not grant any other security interest or any lien over Goods that we have a security interest in.
7.3 – At our request you shall promptly sign any documents and do anything else required by us to ensure our security interest constitutes a first ranking perfected security interest in the Goods.
7.4 – We may at any time enter your premises and properties to uplift Goods that we have a security interest in.
7.5 – If Goods that we have a security interest in are processed, included or dealt with in any way causing them to become accessions, processed or commingled Goods, our security interest will continue in the whole in which they are included. You shall not grant any other security interest or any lien in either the Goods or in the whole.
7.6 – You waive any rights you may have under sections 114(1)(a), 116, 120(2), 121, 125, 126, 127, 129, 131, 133, and 134 of the PPSA.
7.7 – You waive your right to receive a copy of any verification statement (as that term is defined in the PPSA).
7.8 – You shall give us prior written notice of any proposed change of your name or address.
8. WARRANTIES
8.1 – The Consumer Guarantees Act 1993, the Fair Trading Act 1986, and other statutes may impose warranties, conditions or obligations upon us which cannot by law (or which can only to a limited extent by law) be excluded. Other than as expressly provided for in these Terms, we exclude all such imposed warranties, conditions or obligations to the extent permitted by law and exclude any warranty, condition or obligation imposed or implied under common law, equity or otherwise.
8.2 – The guarantees contained in the Consumer Guarantees Act 1993 are excluded where you acquire goods and services from us for the purposes of a business in terms of sections 2 and 43 of that Act.
9. LIMITATION OF LIABILITY
9.1 – Except as expressly otherwise provided by clauses 8.1 or 8.2, we shall not be liable for any loss or damage or liability of any kind whatsoever (including consequential loss or lost profit or business) whether suffered or incurred by you or another person and whether in contract, or tort, or otherwise and whether such loss or damage arises directly or indirectly from Goods or services provided by us to you.
9.2 – To the extent that we are liable for any reason for any loss suffered or liability incurred by you arising from any breach of these Terms or for any other reason, such liability is limited to the amount of the price of the Goods concerned. If Goods are returned by you, or if you make a claim in writing to us in relation to Goods or associated services provided, we may, in our discretion, repair or replace the Goods or re-perform the services, or refund the price of those Goods to you, provided that:
a. the Goods must be returned or the claim must be made in writing to us within seven (7) days of Delivery; and
b. you must supply the date and number of any invoice relating to the Goods; and
c. we must be given a reasonable opportunity to inspect the Goods.
10. INTELLECTUAL PROPERTY
10.1 – All intellectual property rights in or relating to the Goods including our trade name(s) and any marketing collateral or explanatory information relating to the Goods (“Intellectual Property”) are reserved by us.
10.2 – In respect of Intellectual Property used in or arising from the Goods all pre-existing Intellectual Property the subject of an Intellectual Property right resides with the owner as at the date of these Terms.
11. INTELLECTUAL PROPERTY OWNERSHIP
11.1 – Subject to clause 10 we or our related companies are and will remain the exclusive owner everywhere in the world of all Intellectual Property rights and interests in the Goods.
11.2 – We shall retain exclusive worldwide ownership at all times of our recipes, formulae, artistic styles, methods of working, techniques, ideas, skills and know-how.
11.3 – You must not attribute the Goods to anyone other than us or remove any of our trade-marks, signatures, logos or similar from the Goods.
11.4 – You must not use or offer our Goods for sale in an altered or modified form or intermingled or mixed with any other Goods.
11.5 – This clause 11 shall continue in force as between us and you notwithstanding the termination of these Terms or the Delivery of the Goods.
12. PRIVACY OF INFORMATION
12.1 – You authorise us:
a. to collect, retain and use information about you from any person for the purpose of assessing your creditworthiness;
b. to disclose information about you:
i. to any person who guarantees, or who provides insurance, or who provides any other credit support, in relation to your obligations to us;
ii. to such persons as may be necessary or desirable to enable us to exercise any power or enforce or attempt to enforce any of our rights, remedies and powers under these Terms.
13. NOTICES
13.1 – Any notice may be given by phone, in person, posted, or sent by facsimile or email to you or, where you are a company, to any director or designated contact person.
14. CONFIDENTIALITY
14.1 – You shall at all times treat as confidential all non-public information and material received from us and shall not publish, release, or disclose the same without our prior written consent. For clarity, confidential information includes any Intellectual Property and prices.
15. COSTS
15.1 – You must pay our costs (including legal costs, as between solicitor and client) of and incidental to the enforcement or attempted enforcement of our rights, remedies and powers under these Terms, including any debt recovery costs.
16. CREDIT INFORMATION
16.1 – You consent to us, or any financier or credit-rating agency, making enquiries of and obtaining any information about your financial standing and credit worthiness.
17. JURISDICTION
17.1 – These Terms are governed by the laws of New Zealand. You may take legal action against us only in a New Zealand Court however we are entitled to commence any action arising out of or in respect of the contract in any other jurisdiction.
18. DISPUTES
18.1 – Should any disagreement arise between the parties regarding the due performance of any contract, they will use reasonable commercial endeavours to resolve the disagreement by negotiation in the first instance and for that purpose will escalate any unresolved aspect of the disagreement to each party’s Chief Executive or equivalent senior management officer or other key decision maker.
18.2 – Any claim or dispute unable to be resolved within one (1) month of the dispute arising shall be determined by arbitration under the Arbitration Act 1996. However, nothing in this clause prevents either party from taking immediate steps to seek any equitable relief before the New Zealand Courts.
19. FORCE MAJEURE
19.1 – We shall not be liable for delay or failure to perform our obligations under these Terms if the cause of delay or failure is due to any cause beyond our reasonable control.
19.2 – If the cause preventing performance continues for more than 90 days, either party shall be entitled to terminate the contract by notice in writing and neither party shall have any further liability under the contract except in respect of any rights accrued before such termination.
20. GENERAL
20.1 – These Terms replace any earlier representations, warranties, understandings and agreements (whether oral or written), and together with your Credit Application constitute the entire agreement between us and you relating to their subject matter.
20.2 – You shall not transfer or assign your rights, powers or obligations under these Terms without our prior written consent.
20.3 – If you have entered into these Terms as the trustee of a trust and you have no right to or interest in any of the assets of the trust except in your capability as trustee of the trust, your liability shall be limited to the value of the assets of the trust which now or in the future are (or, but for your wilful neglect or default, would be) in the hands of the trustees for the time being of the trust. This clause does not limit any liability you have to us as a personal guarantor.
20.4 – No failure or delay by us in insisting upon the strict performance of these Terms or exercising any right under these Terms will operate as a waiver of those matters.
20.5 – We may change these Terms at any time. Any change applies from when we notify you of that change.
21. DEFINITIONS
21.1 – In these Terms unless the context otherwise requires:
“Delivery” – means, subject to clause 1.4, the collection of Goods by you or one of your employees, contractors or agents from our premises, or where we agreed to dispatch Goods for you, delivery shall mean the despatch of Goods from our premises. If you indicate to us that you will fail or refuse to take or accept delivery, then the Goods are deemed to have been delivered when we are willing to deliver them.
“Default” – has the meaning set out in clause 7.
“Goods” – includes any associated equipment that we supply.
“Intellectual Property” – means all intellectual property rights including, without limitation, copyright, patent and design rights, drawings, documents, data, ideas, procedures, recipes, formulae and all other statutory and common law rights and interests.
“Security” – means all existing and future security held by us that secures your obligations under these Terms.
21.2 – References to a party include that party’s successors, personal representatives, executors, administrators and permitted assigns.
21.3 – References to a statute include references to:
a. regulations, orders, rules or notices made pursuant to that statute;
b. all amendments to that statute and those regulations, orders, rules or notices, whether by subsequent statute or otherwise; and
c. any statute passed in substitution of that statute.
