Wholesale Terms and Conditions of Sale in New Zealand
Updated 14 March 2019
“Buyer” shall refer to the buyer, any person acting on behalf of and with the authority of the Buyer, or any person purchasing Goods from us.
“Goods” shall refer to any Goods delivered by Huski (as more fully described in any invoice or other sales record issued by Huski) to you or your agent, including freight and handling charges incurred in doing so all of which form part of these terms and conditions.
“Huski” shall refer to Huski Limited, or any agents or employees thereof.
“Price” shall refer to the cost of the Goods, and includes all disbursements.
1. ACCEPTANCE AND CONDITIONS
1.1 All orders are subject to acceptance and confirmation by the Huski.
1.2 Huski reserves the right to:
a) Grant or decline credit to any Buyer and to suspend or cancel any pre-existing credit accounts upon written notice.
b) Impose a credit limit, which may be altered at our discretion. If at any time this limit is exceeded, Huski may withhold further deliveries until a satisfactory arrangement has been agreed upon.
1.3 Unless otherwise agreed in writing, the Buyer shall not:
a) Appoint any Agent, Sub-Agent, Person or Entity to re-sell the Goods.
b) Sell the Goods to any Person or Entity whom they know or have reason to believe intends to re-sell the Goods.
Once an order has been submitted by the Buyer, the Buyer is contractually committed to carry out the sale at the agreed Price unless otherwise agreed to in writing by both parties.
3.1 Full payment must be received by Huski before the Goods will be shipped unless otherwise agreed to in writing by both parties. If costs apply which are indeterminable in advance of shipping, such as some or all potential shipping costs, these will be invoiced separately and the remainder of the payment will be due 30 days from invoice.
3.2 Payment is due 30 days from receiving invoice, unless otherwise agreed to in writing by both parties. Huski will accept payment by direct bank transfer only.
3.3 A 2.5% monthly late charge will be levied on overdue account balances. If at 60 days the debt remains unpaid Huski has the right to charge an administration fee at 10%, this is a recurring monthly fee thereafter.
3.4 Collection costs will be added to the debt in the event that the debt is not paid by the due date and all costs incurred in the recovery of the debt are payable by the debtor (person, company, partnership, trust, organisation or any other entity that owes a debt to Huski).
3.5 Should litigation ensue the costs of solicitors are payable by the debtor.
3.6 Payments for sales within New Zealand will be made in New Zealand dollars.
4. NEW BUYERS
New Buyers must complete an Account Application form as supplied by Huski.
5. ORDERING PROCEDURE
A Huski Account Application form must be correctly filled out and approved by Huski. Once the Account Application form has been approved by Huski the Buyer can proceed with placing an order and is legally bound to the agreements therein including these Wholesale Terms and Conditions of Sale.
After the placement of an order Huski will provide the Buyer with a Sales Confirmation. Once a Sales Confirmation has been issued, the Buyer is legally bound to the order and any agreements therein including these terms and conditions.
6. RETENTION OF TITLE
Title to the Goods shall remain vested in Huski and shall not pass to the Buyer until the purchase Price for the Goods has been paid in full and received by Huski. Until title to the Goods passes:
a) Huski shall have authority to retake, sell or otherwise deal with and/or dispose of all or any part of the Goods;
b) Huski and its agents and employees shall be entitled at any time and without the need to give notice enter upon any property upon which the Goods or any part are stored, or upon which Huski reasonably believes them to be kept;
c) The Buyer shall store or mark the Goods in a manner reasonably satisfactory to Huski indicating that title to the Goods remains vested in Huski;
d) Irrespective of whether title to the Goods remains vested in Huski, risk in the Goods shall pass to the Buyer upon delivery. The Buyer shall insure the Goods to their full replacement value.
7. SHIPPING TERMS
Goods are delivered within New Zealand by courier. Freight is covered by The Buyer and the courier charge will be specified on the invoice.
GST is not included in the Price and will be invoiced additionally to the agreed Price, if applicable.
9.1 Force majeure
No Party shall be liable for any failure to perform its obligations where such failure is as a result of Acts of Nature (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalisation, government sanction, blockage, embargo, labour dispute, strike, lockout or interruption or failure of electricity or [telephone service], and no other Party will have a right to terminate this agreement in such circumstances. Any Party asserting Force Majeure as an excuse shall have the burden of proving that reasonable steps were taken (under the circumstances) to minimize delay or damages caused by foreseeable events, that all non-excused obligations were substantially fulfilled, and that the other Party was timely notified of the likelihood or actual occurrence which would justify such an assertion, so that other prudent precautions could be contemplated.
9.2 If a delivery date is agreed it is an estimate only and Huski will use all reasonable endeavors to delivery by such date.
10.1 Huski may cancel this contract at any time by giving written notice. Huski shall not be liable to any loss or damage whatsoever arising from such cancellation.
10.2 Cancellation or alteration to the order by the Buyer after the order has been submitted may be subject to a cancellation fee representing 50% of the value of the cancelled order at the discretion of Huski.
10.3 Cancellation of any order by the Buyer must be submitted in writing. Huski has no obligation to accept cancellation of any part of the order once the order has been submitted by the Buyer. Decisions regarding the acceptance of any part of the order are at the discretion of Huski.
11. RISK OF LOSS
Once the Goods have been delivered and signed by the Buyer all risk of loss is the responsibility of the Buyer.
12. INSPECTION OF GOODS ON RECEIPT
Unless the Buyer has inspected the Goods and given written notice to Huski within seven (7) days after delivery that the Goods do not comply with the relevant specifications or descriptions, the Goods are deemed to have been accepted in good order and condition.
13. RETURN OF GOODS
No returns will be accepted unless Huski has previously agreed in writing. If Huski agrees to the return of Goods, they must be unsoiled, undamaged and in a re-saleable condition (or Buyer pays for all costs of replacement or repair) and delivered free to Huski premises unless otherwise agreed by Huski in writing.
At times, Goods will not be produced, or will be produced but not be up to the quality expected by Huski. While every attempt will be made to avoid non-delivery, if such a situation arises, non-delivery of Goods will be accepted by the Buyer and Huski will accept no liability for resulting losses to the Buyer. The Buyer will not be invoiced for non-delivered Goods.
Huski will insure the Goods up until delivery to the Buyers specified location. Thereafter, the Goods are the responsibility of the Buyer.
16.1 Huski warrants that the Goods delivered meet the Buyers specifications as stated on the ‘Order Form’ and ‘Sales Confirmation’. Once delivered the Buyer assumes all risk and liability resulting from use of the Goods.
16.2 If any fault is evident within the Goods, that is a result of faulty manufacturing Huski will replace the Goods. If the Goods are no longer in stock a credit will be offered.
If any fault in the Goods is deemed to be from misuse, wear and tear, tampering or not following care instructions no refund or replacement will be offered.
18. NO SALE BY DESCRIPTION OR SAMPLE
Unless otherwise expressly agreed in writing, Huski does not warrant that the Goods conform to any specific description or sample. Huski reserves the right to alter or remove its product dimensions, drawings, specifications, designs, materials, components, fabrics, patterns, printing techniques, colours, printed materials, packaging, promotional material, construction methods and/or offers included with purchase. Huski may do so without notice. Any such alterations shall not impose upon Huski an obligation to alter Goods that it already delivered to the Purchaser. Any description of the Goods, whether given verbally or appearing in Huski sales literature, catalogues or otherwise, shall not constitute a sale by description, unless Huski expressly agrees in writing that such description forms a condition of sale. An inspection by the Buyer of the Goods, or a demonstration of the Goods, shall not constitute a sale by sample. Unless otherwise expressly agreed in writing, it is not a condition of sale that the Goods correspond precisely with the dimensions and specifications appearing in any product literature or with any sample that may have been shown or demonstrated to the Buyer. All samples remain the property of Huski, unless stated otherwise.
19. PRIVACY ACT 1993
19.1 Huski may search the PPSR and collect from it any information about and/or associated with the Buyer permissible under the Privacy Act 1993 for credit application assessment purposes.
19.2 Huski shall hold any information associated with the Buyer in order to perform its obligations to supply any Goods.
19.3 Huski may provide any Solicitor, Debt Collection Agency, or any other Business associated with the purpose of collecting monies, information about the Buyer.
20. PERSONAL PROPERTY SECURITIES ACT 1999
20.1 Upon assessing to these terms and conditions of sale the Buyer acknowledges and agrees that:
a) These terms and conditions of sale constitute a security agreement for the purposes of the PPSA; and
b) A security interest is taken in all Goods previously supplied Huski to the Buyer (if any) and all the Goods that will be supplied in the future by Huski to the Buyer during the continuance of the parties relationship,
20. 2 The Buyer undertakes to:
a) sign any further documents and/or provide any further information, such information to be complete, accurate and up-to-date in all respects, which Huski may reasonably require to register a financing statement or financing charge statement on the Personal Property Securities Register;
b) not register a financing charge statement or a charge demand without the prior written consent of Huski;
c) give Huski not less than fourteen (14) days prior written notice of any proposed change in the Buyer’s name and/or other change in the Buyer’s details (including but not limited to changes in the Buyer’s address, fax number, email or business practice) and
d) immediately advise Huski 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
e) Huski and the Buyer agree that nothing in 114(1) (a), 133 and 134 of the PPSA shall apply to the Terms and Conditions of Sale.
f) The Buyer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129 and 132 of the PPSA
20.3 Unless otherwise agreed to in writing by Huski, the Buyer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
20.4 The Buyer unconditionally ratifies any actions taken by Huski under and by the virtue of the power of attorney given by the Buyer to Huski under clauses 20.1 and 20.3
21. COMPLIANCE WITH LAW
The Buyer must comply with all legislation relating to the usage and description of the merchandise.
22. INTELLECTUAL PROPERTY
The content and design of all products and logos are copyright and belong to Huski. The Buyer may not use any intellectual property without written permission.
23. GOVERNING LAW
New Zealand law and the decisions of its courts shall be the exclusive place of jurisdiction with respect to any question or controversy that may arise hereunder from disputes or transactions with Huski.
If any provision contained in these Conditions of Sale is held by a court to be unlawful, invalid or unenforceable, the validity and enforce-ability of the remaining provisions are not affected.
25. UPDATES TO THESE TERMS AND CONDITIONS
Huski reserves the right to update these terms and conditions from time to time as required.