Terms and Conditions of Trade

These terms and conditions of trade apply to all credit advanced, services supplied, goods produced or supplied and materials supplied (“the Products”) by Hammerhead Foods 2019 Limited (“the Supplier”) to you (“the Customer”) and form part of and are to be read in conjunction with any contract between the Supplier and the Customer. No agent or representative of the Supplier is authorised to make any representations, warranties or agreements not expressly contained in these terms and conditions and the Supplier is not in any way bound by such representations, warranties or agreements.
1.1 “Products” shall include all Kiss Kombucha products supplied including all bottles, kegs, Kegerator dispensing systems and associated equipment.
1.2 “Supplier” means Hammerhead Foods 2019 Limited together with its successors and assigns.
1.3 “Customer” means the Customer named in the application together with the customers successors, assigns, personal representatives and Guarantors (if any).
1.4 Headings are for reference only and do not affect the interpretation of any clause.
1.5 The singular shall include the plural and vice versa.
1.6 Person and Persons include companies, partnerships and any other legal entity unless inconsistent with the context.
2.1 Notwithstanding any other provisions of these terms and conditions of trade where the Kegerator dispensing system and all associated equipment (“Kegerator System”) are supplied by the Supplier to the Customer such supply shall be by way of Licence to use the Kegerator System.
2.2 Such Licence shall be able to be terminated by the Supplier giving 2 days notice to the Customer.
2.3 The Customer shall contact the Supplier immediately upon the Customer being aware of any maintenance issue associated with, or damage caused to, the Kegerator System. The Supplier shall then attend to any required repair work at its cost provided that any repairs required as a result of damage caused to the Kegerator System while at the Customers premises shall be payable by the Customer.
3.1 All intellectual property in the Products shall remain the property of the Supplier at all times.
4.1 Delivery times for the Products may vary. If delivery times are not advised and agreed at the time of placing the order then the Supplier will use its best endeavors to ensure that Products are delivered within a reasonable time but only in the case where the Supplier is responsible for delivery of the Products.
4.2 Subject to the provisions of the Consumer Guarantees Act 1993 the Supplier shall not otherwise be responsible or liable in any way to the Customer for delays in delivery of the Products or any part of the Products or for any direct or consequential loss or damage arising.
4.3 Delivery of the Products shall be deemed to occur when the Products are received by the Customer or when any employee or authorised agent of the Customer receives the Products.
4.4 The Customer is not entitled to reject Products for late delivery due to events outside the Suppliers control and in any case is bound to accept Products if delivery is made within a reasonable time after the date agreed or if no date has been agreed, within a reasonable time.
4.5 Where any contract provides for installation of Products to be carried out by the Supplier such contract is upon the basis that it is the Customer’s responsibility:
(a) To provide suitable access to the premises in all weather conditions for the vehicles and equipment that the Supplier will need to use in carrying out such installations;
(b) To provide all necessary services and amenities to enable the Supplier to carry out such installation;
(c) To provide all plant, materials and services required to be provided by the Customer at such times and in such manner as to cause the Supplier no delay in carrying out such installation;
(d) To provide safe and secure onsite storage for materials and accessories supplied and used by the Supplier, its employees and contractors;
(e) To advise the Supplier promptly of any decision or instruction which affects such installation.
4.6 The Supplier reserves the right to suspend delivery of the Products at any time if the Customer is in breach of any of its obligations pursuant to this contract or if the Supplier has reasonable grounds to doubt the Customer’s credit worthiness or its ability to meet its obligations under this contract in full.
5.1 Unless otherwise agreed in writing by the Supplier, payment for the Products is due immediately upon receipt of the Supplier’s invoice relating to the Products. If the Customer’s credit application has been received and approved by the Supplier, then payment is due by the 20th day of the month following the date of invoice relating to the Products. The Supplier will issue invoices monthly for progress claims or upon completion of the job as applicable. The Customer shall make the payments without set off or any deduction of any kind.
5.2 Where any payment is not made on the due date, then without prejudice to any other rights or remedies available to the Supplier under these terms and conditions or at law or in equity or otherwise the Supplier may:
(a) Charge interest on all overdue accounts at the rate of 5% per annum calculated on a daily basis from the date on which payment was due until payment is made.
(b) Withhold deliveries or cancel all or part of any undelivered Products.
(c) Cancel any other order or contract or arrangement between the Supplier and the Customer or suspend performance of such order, contract or arrangement pending payment without being liable to the Customer for any losses (of any kind and with a direct or indirect or consequential) it might suffer.
5.3 The Customer will pay the Supplier all costs incurred by the Supplier, including costs of recovery payable to any debt collection or credit control company or on a solicitor-client basis incurred in the recovery of any amount due to the Supplier.
6.1 Risk in the Products but not title passes to the Customer upon delivery.
6.2 “PPSA” means the Personal Property Securities Act 1999 and its regulations.
6.3 The Products shall remain the sole and absolute property of the Supplier until payment in full has been received by the Supplier for all amounts due to the Supplier in respect of all Products supplied to the Customer and all other amounts due to the Supplier by the Customer under this Agreement.
6.4 Until such time as payment in full as provided by clause 6.3 is received by the Supplier the Customer acknowledges and agrees that:
6.4.1 The Customer shall hold the Products as the bailee of the Supplier;
6.4.2 The Customer shall at its own cost store the Products safely and in a way which clearly identifies the Products as the property of the Supplier. The Customer shall keep the Products fully insured;
6.4.3 The Customer may as fiduciary sell or otherwise dispose of the Products in the ordinary course of business on the understanding that the proceeds of sale at all times shall be the property of the Supplier and the Customer shall be accountable to and hold on trust for the Supplier such proceeds of sale;
6.4.4 If the Products are incorporated in the manufacture or construction of other goods, the provisions of this clause shall continue to apply to the proceeds of those component goods;
6.4.5 The Customer will not permit the Products to become an accession (as defined in the PPSA);
6.4.6 The Customer’s right to possession and to sell or otherwise dispose of the Products in the ordinary course of business may be revoked at any time by the Supplier and shall automatically cease when the Customer is in default of any of its obligations to the Supplier, including when the Customer is overdue in making payment of any sum due to the Supplier;
6.4.7 The Customer irrevocably consents to the Supplier entering the Customers premises or any other premises where the Products are stored or where the Supplier believes the Products are stored to inspect or remove the Products and for such purpose the Customer gives the Supplier leave and licence without the necessity of giving any notice to enter if necessary forcibly any such premises to search for, take possession of and remove the Products without being liable in any way to the Customer and the Customer shall fully indemnify the Supplier in respect of any claim or demand brought against the Supplier in respect of such actions;
6.4.8 The Customer shall not grant or permit to exist any other security interest or financing statement over the Products while they remain the property of the Supplier;
6.4.9 The Customer acknowledges that this clause creates a Purchase Money Security Interest (“PMSI”) as defined in the PPSA in both present and after acquired Products;
6.4.10 The Customer acknowledges receiving a copy of this document and waives all rights to receive from the Supplier verification of any financing statement, or any other notice of any event prescribed by the PPSA;
6.4.11 (a) Nothing contained in Sections 114(1)(a), 133 or 134 of the PPSA applies to the security interest created by this document.
(b) The rights of the Customer contained in Sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA do not apply to the security interest created by this document.
(c) The Customer agrees that the Supplier may charge a reasonable fee for compliance with a demand under Section 162 of the PPSA.
6.4.12 The PMSI has attached to the Products and has not been deferred or postponed;
6.4.13 The Customer will do all things and execute all documents as are necessary to ensure the Supplier has a perfected first ranking PMSI in the Products;
6.4.14 The Customer will immediately notify the Supplier of any change of its name or address;
6.4.15 The Customer indemnifies the Supplier for any costs it incurs in registering, maintaining and enforcing the security interest created by this document.
7.1 Either party may terminate these terms and conditions with immediate effect if any of the following events occur:
(a) The relevant party breaches these terms and conditions and if such breach is not remedied within 2 business days notice from the other party specifying the breach (if such breach is capable of remedy).
(b) The relevant party commits acts of bankruptcy or makes an assignment or composition with its creditors.
(c) Any of the conditions necessary to render the relevant party liable to be put into liquidation.
(d) The relevant party is or becomes unable to pay expenses that fall due or is deemed to be unable to pay such debts as that term is defined in Section 287 of the Companies Act 1993 (or any successor legislation) or suspense payment to its creditors or ceases or threatens to cease to carry on its business or convenes a meeting of its creditors to propose a compromise with its creditors.
(e) If an application to put the relevant party into liquidation is made or advertised or a resolution is passed or proposed to be passed for the liquidation of that party.
(f) The relevant party has a receiver or manager or statutory manager or administrator appointed.
7.2 If any of the events in clause 7.1 occur, in addition to any remedies the Supplier may have at law, the Supplier may do one or more of the following:
(a) Suspend the account and provision of the Products.
(b) Charge default interest in accordance with clause 5.2.
(c) Enter onto the Customer’s premises or other property and repossess any Products which have not been paid for in full.
(d) Immediately terminate these terms.
7.3 Any termination is without prejudice to the rights of the parties arising prior to termination.
7.4 Nothing in clauses 7.1, 7.2 or 7.3 affects the operation of the clauses in these terms and conditions which are expressed or implied to have effect after its termination.
8.1 If the Customer acquires the Products for the purpose of a business then:
(a) The provisions of the Consumer Guarantees Act 1993 are expressly contracted out of to the extent permitted by the Consumer Guarantee Act.
(b) The Customer shall:
(i) Contract out of the provisions of the Consumer Guarantees Act where the Customer’s customers are consumers who acquire the Products for the purposes of a business.
(ii) Not make any representation concerning the description of the Products if it does not correspond with the actual description and specification of the Products.
(c) The Customer shall indemnify the Supplier in respect of any loss, damages, costs, claims or other liability which the Supplier may face suffer or incur pursuant to the Consumer Guarantees Act 1993 in relation to any of the Products sold by the Customer to any consumer.
(d) The warranty applicable to Products supplied by the Customer shall be limited to the warranty offered by the Supplier.
(e) Except as provided herein the Supplier has no obligation to the Customer or its customers for sales by the Customer to its customers and the Customer will be responsible for all warranties, representations and terms of sale it enters into with the Customer’s customers.
8.2 Where the Customer acquires Products other than for the purposes of its business (or if the Consumer Guarantees Act 1993 applies for any reason notwithstanding clause 8.1) then the limitations and exclusions of liability in this clause 8 shall be subject to the Consumer Guarantees Act 1993 and any other consumer protection law in New Zealand including but not limited to the Fair Trading Act 1986.
8.3 To the extent permitted by law, the Supplier warrants the goods or service performed to the extent only it has manufactured the goods or performed the service against faulty materials or workmanship (or both) for a period of 90 days after delivery of the goods or performance of the service as the case may be provided always:
(a) All claims under this warranty are received within 90 days after delivery of the goods or performance of the service.
(b) The Customer gives the Supplier notice of any defect in the goods or performance of the service within 3 days of such defect becoming apparent.
(c) The Customer has maintained and operated the goods in accordance with good industry practices and
(d) The Customer has complied with all specific recommendations of the Supplier.
8.4 The Supplier will only be responsible for the replacement or the repair of faulty materials or workmanship (including faulty workmanship provided under this warranty.
8.5 Any such repair will be done at such a place as the Supplier may specify. The Customer is responsible for cartage or delivery as may be necessary of the goods (or any part thereof) or any goods the subject of service performed to and/or from the place as specified.
8.6 This warranty will not apply if the goods are repaired by any person not authorised by the Supplier to do such repairs or if the goods are used other than for the purpose for which they were intended.
8.7 This warranty does not cover any specifications or requirements tendered to the Supplier by the Customer it being the Customer’s exclusive responsibility to ensure that the goods or services supplied under this contract will be satisfactory to meet its specifications or requirements (or both).
8.8 This warranty is exclusive and all other warranties descriptions representations or conditions as to fitness or suitability for any purpose, tolerance to any condition, merchantability or otherwise whether of like nature or not and whether expressed or implied by law trade custom or otherwise are expressly excluded.
8.9 The total liability of the Supplier whether in contract tort or otherwise for any loss damage or injury arising directly or indirectly from any defect in or non-compliance of the goods or services or any part thereof or for any breach of any obligation under this contract or in respect of any other matter whatsoever will not in any event exceed the price of the goods or service (or the part thereof as the case may be) upon which such liability is based.
8.10 The Supplier shall not be liable for any consequential indirect or special damage or loss of any kind nor is the Supplier liable for any damage or loss caused by the Customer’s servants agents buyers or any other persons howsoever.
8.11 The Customer hereby indemnifies the Supplier and shall keep the Supplier indemnified from and against all losses, costs, penalties, liabilities or expenses suffered or incurred by the Supplier as a result of or arising out of the Customer’s breach of attempted breach of this Agreement.
8.12 Any claim by the Customer against the Supplier must be notified to the Supplier within 90 days from delivery of the goods or service.
8.13 The Supplier shall not be liable to the Customer whatsoever for any defect, loss, damage or delay caused by strike, knockout, damage to or breakdown of plant, government interference, war or active war, storm, tempest, fire, flood, riot, explosion, earthquake, force majeure or any other cause beyond the control of the Supplier, that impacts on the supply of the Products pursuant to these terms and conditions.
The Supplier may from time to time amend these terms and conditions of trade by posting, faxing or emailing to the address for service of the Customer a written set of the amended terms. The Customer and any Guarantor(s) agree that the amended terms shall be effective upon posting, faxing or emailing and are deemed accepted, by the Customer placing any order after the date of posting, faxing or emailing.
10.1 The price for the Products shall be the price stated in the quoted price subject to any variation agreed in writing.
10.2 The price for the Products is expressed in New Zealand dollars and excludes GST. GST is payable in addition to the price quoted.
11.1 If any provision of these conditions is invalid, illegal or unenforceable, it will be severed and all other provisions will remain in full force and effect.
12.1 The Customer acknowledges that the information contained in this application or any other information held by the Supplier relating to the financial standing and/or credit worthiness of the Customer may be disclosed by the Supplier to a third party.
12.2 The Customer consents to the Supplier obtaining from any other person a credit report containing personal information about the Customer for the purpose of the Supplier:
(a) Assessing the Customer’s application for commercial credit; and
(b) Collection of overdue payments in respect of commercial credit provided to the Customer; and/or
(c) Assessing whether to accept the guarantor as guarantor for credit applied for, or provided to the Customer.
12.3 The Customer agrees that if the Supplier approves or has approved the Customer’s application for credit, this agreement shall remain in force until the credit facility covered by the Customer’s application ceases.
12.4 The Customer agrees that the Supplier may give to and seek from any other person information about the Customer’s credit arrangements for the purposes of assessing, on an ongoing basis the Customer’s financial standing and/or credit worthiness.
These terms and conditions of trade shall be governed by the laws of New Zealand and shall be subject to the non exclusive jurisdiction of New Zealand.
Any notice may be given in person, posted or sent by facsimile or email (or where the Supplier or the Customer is a company, to any of its directors, agents or employees)