Terms and Conditions of Trade
1.1 “Agreement” means these Terms and Conditions of Trade which form part of, and are intended to be read in conjunction with any Credit Account Application completed by or on behalf of the Customer and that incorporates the Guarantee.
1.2 “Customer” means the person/s buying the Goods as specified in any credit application form, invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
1.3 “Goods” means all Goods or Services supplied by the Seller to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “GST” means Goods and Services Tax (GST).
1.5 Intellectual “Property” means without limitation, patents, trademarks, branding, trade names, symbols, logos, business names, copyright, designs, trade secrets, formulae, methods, recipes, plans, specification, data, drawings, confidential information and know-how, licences, and any other similar proprietary rights, whether or not registered, whether or not capable of registration, vested or contingent, in any part of the world and all applications and rights to apply for registration, all renewals and extensions and all or any goodwill relating to or attaching to such rights.
1.6 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between the Seller and the Customer in accordance with clause 5 below.
1.7 “Seller” means Brooklands Pet Products LP (registration number 50143652) T/A Brooklands Pet Products, its successors and assigns or any person acting on behalf of and with the authority of Brooklands Pet Products.
2.1 The Customer is taken to have accepted and is immediately bound, jointly and severally, by this Agreement if the Customer places an order for the Goods.
2.2 This Agreement may only be amended by written agreement between both parties and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and the Seller.
2.3 The Customer acknowledges and accepts that the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, the Seller reserves the right to vary the Price with alternative Goods in accordance with clause 2.2 .
3. Electronic Transactions Act 2002
3.1 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 22 of the Electronic Transactions Act 2002 or any other applicable provisions of that Act or any Regulations referred to in that Act.
4. Change in Control
4.1 The Customer shall give the Seller not less than seven (7) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone number/s, or business practice). The Customer shall be liable for any loss incurred by the Seller as a result of the Customer’s failure to comply with this clause.
5. Price and Payment
5.1 At the Seller’s sole discretion, the Price shall be either:
- the Seller’s quoted price (subject to clause 5.2 ) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days; or
- as indicated on any invoice provided by the Seller to the Customer.
5.2 The Seller reserves the right to change the Price at any time before delivery if the Seller notifies the Customer of a variation to the Seller’s quotation (Variation). The Variation may include changes to the delivery or specifications of the Goods (including, but not limited to, any variation as a result of fluctuations in currency exchange rates or increases to the Seller in the cost of taxes, levies or stock availability) and will be detailed in writing, and shown as variations on the Seller’s invoice. The Customer shall be required to respond to any Variation submitted by the Seller within ten (10) working days. Failure to do so will entitle the Seller to add the cost of the Variation to the Price and payment of which must be made in full in accordance with clause 5.4.
5.3 At the Seller’s sole discretion, a deposit may be required to be paid by the Customer and shall become immediately due and payable at the time of the order of the Goods.
5.4 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by the Seller, which may be:
- on delivery of the Goods;
- for certain approved Customers, due twenty (20) days from the end of the month that the statement is dated and posted to the Customer’s address or address for notices;
5.5 Payment may be made by cash, bank cheque, electronic funds transfer, or by any other method as agreed to by the Seller.
5.6 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Seller nor to withhold payment of any invoice because part of that invoice is in dispute.
5.7 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to the Seller an amount equal to any GST the Seller must pay for any supply by the Seller under this Agreement or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
6. Delivery of Goods
6.1 Delivery of the Goods is taken to occur at the time that:
- the Customer or the Customer’s nominated carrier takes possession of the Goods at the Seller’s nominated address provided that:
- the Seller shall be deemed to have delivered the Goods by making them available for collection by the Customer at the Seller’s nominated facility (Ex-Works);
- risk of loss of the Goods shall pass to the Customer upon Ex-Works delivery;
- the Customer shall be solely responsible for arranging collection and all related costs (including insurance) of the Ex-Works; or
- the Seller (or the Seller’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
6.2 The Seller may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in this Agreement.
6.3 Any time specified by the Seller for delivery of the Goods is an estimate only and the Seller will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that the Seller is unable to supply the Goods as agreed solely due to any action or inaction of the Customer, then the Seller shall be entitled to charge a reasonable fee for redelivery and/or storage.
7.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
7.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Seller is entitled to receive all insurance proceeds payable for the Goods. The production of this Agreement by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
7.3 If the Customer requests the Seller to leave Goods outside the Seller’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Customer’s sole risk.
8.1 The Seller and the Customer agree that ownership of the Goods shall not pass until:
- the Customer has paid the Seller all amounts owing to the Seller; and
- the Customer has met all of its other obligations to the Seller.
8.2 Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Seller’s ownership and rights in respect of the Goods shall continue.
8.3 It is further agreed that until ownership of the Goods passes to the Customer in accordance with clause 8.1 :
- the Customer is only a bailee of the Goods and must return the Goods to the Seller on request.
- the Customer holds the benefit of the Customer’s insurance of the Goods on trust for the Seller and must pay to the Seller the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed. The Seller will apply the insurance proceeds as follows:
- first, in payment of the Price of the Goods that are damaged or destroyed, if unpaid;
- second, in payment of the outstanding Price of any other Goods supplied to the Customer by the Seller whether under the terms and conditions or otherwise;
- third, in payment of any other sums payable to the Seller by the Customer on any account;
- fourth, any balance is to be paid to the Customer.
- the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value with the Seller’s written consent. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for the Seller and must pay or deliver the proceeds to the Seller on demand.
- he Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so with the Seller’s written consent then the Customer holds the resulting product on trust for the benefit of the Seller and must sell, dispose of or return the resulting product to the Seller as it so directs.
- the Customer irrevocably authorises the Seller to enter any premises where the Seller believes the Goods are kept and recover possession of the Goods.
- the Seller may recover possession of any Goods in transit whether or not delivery has occurred.
- the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Seller.
- the Seller may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
8.4 Risk of loss of the Goods passes to the Customer in accordance with clauses 6 and 7 despite the Seller retaining title to the Goods in accordance with this clause 8.
9. Personal Property Securities Act 1999 (“PPSA”)
9.1 As security for:
- the payment or delivery of all amounts of any nature which the Customer (whether alone, or jointly or jointly and severally with any other person) is, or may at any time become, liable (whether actually or contingently) to pay or delivery to the Seller under this Agreement or otherwise; and
- performance by the Customer of its obligations to the Seller at any time under this Agreement or otherwise, the Customer charges and grants a security interest to the Seller in all of the Customer’s right, title and interest in:
- all Goods supplied by the Seller to the Customer from time to time; and
- all the Customer’s present and after acquired personal property.
9.2 The Customer acknowledges that this Agreement constitutes a security agreement for the purposes of the Personal Property Securities Act 1999 (PPSA).
9.3 The Customer agrees and undertakes to:
- sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Seller may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
- indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
- not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of the Seller; and
- immediately advise the Seller of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
9.4 The Seller and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to this Agreement.
9.5 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
9.6 The Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
9.7 The Customer shall unconditionally ratify any actions taken by the Seller under clauses 9.1 to 9.6 .
9.8 The Customer indemnifies the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Seller’s rights under this clause.
9.9 The Customer irrevocably appoints the Seller and each director of the Seller as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 9 including, but not limited to, signing any document on the Customer’s behalf.
10.1 The Customer and the Seller agree:
- that they are both in trade;
- that the Goods and Services are both supplied and acquired in trade;
- o contract out of section 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 and the provisions of the Consumer Guarantees Act 1993;
- that any conditions and warranties implied by Part 3 of the Contract and Commercial Law Act 2017 are excluded; and
- that it is fair and reasonable that the Customer and Seller are bound by this clause 10.1 .
10.2 The Customer shall inspect the Goods on delivery and shall within five (5) days of delivery (time being of the essence) notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote (Defect Notice). The Customer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following receipt of the Defect Notice if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free accepted by the Customer, regardless of any actual or claimed defect or damage. For defective Goods, which the Seller has agreed in writing that the Customer has a valid claim, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods or repairing the Goods.
10.3 Goods will not be accepted for return other than in accordance with 10.2 above, and provided that:
- the Seller has agreed in writing to accept the return of the Goods; and
- the Goods are returned at the Customer’s cost within seven (7) days of the delivery date; and
- the Seller will not be liable for Goods which have not been stored or used in a proper manner; and
- the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
10.4 The Seller may (in its discretion) accept the return of undamaged and non- defective Goods for credit but this may require the Customer to pay a handling fee of twenty percent (20%) of the Price of the returned Goods plus any freight.
11.1 The Seller warrants that, the Goods will correspond with any description of, sample or quote relating to those Goods provided to the Customer.
11.2 For Goods not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
11.3 To the extent permitted by statute, no warranty is given by the Seller as to the quality or suitability of the Goods for any purpose and any warranties implied by Part 3 of the Contract and Commercial Law Act 2017 are expressly excluded. The Seller shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
12. Intellectual Property
12.1 Where the Seller has designed, drawn or developed Goods for the Customer, then the copyright and any other Intellectual Property rights in any designs and drawings and documents shall remain the property of the Seller. Under no circumstances may such designs, drawings and documents be used by the Customer without the express written approval of the Seller.
12.2 The Customer warrants that all designs, specifications or instructions given to the Seller will not cause the Seller to infringe any existing Intellectual Property in the execution of the Customer’s order and the Customer agrees to indemnify the Seller against any action taken by a third party against the Seller in respect of any such infringement.
12.3 The Customer agrees that the Seller may (at no cost) use for the purposes of marketing or entry into any competition, any Intellectual Property or Goods which the Seller has created for the Customer.
13. Limitation of Liability
13.1 In the event of any breach of this Agreement by the Seller the remedies of the Customer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price.
13.2 The Seller shall not be liable to the Customer for any indirect, special or consequential loss.
Terms and Conditions of Trade
14. Default and Consequences of Default
14.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate equivalent to our bank’s commercial lending interest rate at the time plus 4%per annum per calendar month (and at the Seller’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
14.2 If the Customer owes the Seller any money the Customer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Seller’s collection agency costs, and bank dishonour fees).
14.3 Further to any other rights or remedies the Seller may have under this Agreement, if a Customer has made payment to the Seller, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Seller under this clause 13 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Agreement.
14.4 Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable if:
- any money payable to the Seller becomes overdue, or in the Seller’s opinion the Customer will be unable to make a payment when it falls due;
- the Customer has exceeded any applicable credit limit provided by the Seller;
- the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
- a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
15.1 Without prejudice to any other remedies the Seller may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under this Agreement the Seller may suspend or terminate the supply of Goods to the Customer. The Seller will not be liable to the Customer for any loss or damage the Customer suffers because the Seller has exercised its rights under this clause.
15.2 The Seller may cancel any contract to which this Agreement apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice the Seller shall repay to the Customer any money paid by the Customer for the Goods. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.3 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by the Seller as a direct result of the cancellation (including, but not limited to, any loss of profits).
15.4 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order for those Goods has been placed.
16. Privacy Act 2020
16.1 The Customer authorises the Seller or the Seller’s agent to:
- access, collect, retain and use any information about the Customer;
- (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer’s creditworthiness; or
- for the purpose of marketing products and services to the Customer.
- disclose information about the Customer, whether collected by the Seller from the Customer directly or obtained by the Seller from any other source to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.
16.2 Where the Customer is an individual the authorities under clause 16.1 constitute authorities and consents for the purposes of the Privacy Act 2020.
16.3 The Customer shall have the right to request the Seller for a copy of the information about the Customer retained by the Seller and the right to request the Seller to correct any incorrect information about the Customer held by the Seller.
17. Service of Notices
17.1 Any written notice given under this Agreement shall be deemed to have been given and received:
- by handing the notice to the other party, in person;
- by leaving it at the address of the other party as stated in this Agreement;
- by sending it by registered post to the registered address of the other party on the third business day after posting if posted in New Zealand, or on the seventh business day if posted to or from a place outside New Zealand, in each case from and including the date of postage;
- if sent by email to the other party’s last known email address provided the sender does not receive any indication of the failure of, or delay in, delivery.
17.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
18.1 To the extent the terms of this Agreement are inconsistent with any other of the Seller’s terms of trade, the terms of this Agreement shall prevail.
18.2 The failure by the Seller to enforce any provision of this Agreement by the Seller for the Customer’s obligations under this Agreement shall not be treated as a waiver of that provision or any Guarantee held by the Seller, nor shall it affect the Seller’s right to subsequently enforce that provision or Guarantee. If any provision of this Agreement shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
18.3 This Agreement and any contract to which they apply shall be governed by the laws of New Zealandand the parties submit to the non-exclusive jurisdiction of the New Zealand courts in respect of all matters relating to this Agreement.
18.4 The Customer shall not assign or sub-contract all or any part of their rights and obligations under this Agreement without the written consent of the Seller.
18.5 The Seller may assign, license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
18.6 The Customer agrees that the Seller may amend these terms and conditions by notifying the Customer in writing. These changes shall be deemed to take effect from the date on which the Seller notifies the Customer of such change.
18.7 Except for payment obligations hereunder, neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, pandemic, epidemic, ant of government (whether lawful or unlawful) or other event beyond the reasonable control of either party.
18.8 Both parties warrant that they have the power to enter into this Agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Agreement creates binding and valid legal obligations on them.