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1. GENERAL: In these terms and conditions of sale:
(a) “Seller” means Asahi Beverages (NZ) Ltd and its successors and assigns.
(b) “Buyer” means the person, firm, company or entity buying goods from the Seller.
(c) “goods” means all good the subject matter of any contract for purchase between the Seller and the Buyer.
(d) “Terms” means these terms and conditions of sale.
2. PRICE: The buyer shall pay the price indicated on the invoice, order form or other similar document issued by the Seller. Where the price indicated is a quotation, the Buyer shall also pay any difference between the price in effect at the date of quotation and the price in effect upon delivery of the goods. Unless expressly included in any quotation, the amount of any goods and services tax or any other tax which may be payable in respect of the supply of goods or otherwise under these Terms shall be paid by the Buyer. All payments by the Buyer shall be made in full, free and clear of any deduction, withholding, set-off, counterclaim or any equitable or legal claim.
3. VARIATION: These Terms shall not be modified or varied except in writing signed by the Seller. Unless so modified or varies these Terms override and negate any contrary term, condition or intention contained in any terms or conditions of purchase or other forms of the Buyer or in any other document.
4. DELIVERY: The Seller undertakes to use all reasonable endeavours to deliver the goods within the time specified but the Buyer shall accept the goods if the goods are delivered within a reasonable time thereafter. The Seller reserves the right to deliver the goods by instalments and each instalment shall be deemed to be a separate contract governed by these Terms. Should the Seller fail to deliver any instalment within the time specified or a reasonable time thereafter, this shall not give the Buyer any right or rejection in respect of any other instalments.
5. FORCE MAJEURE: Should any cause beyond the control of the Seller including but not limited to any order of a government or other authority, strike, lockout, labour dispute, delays in transit, difficulty in procuring components, embargo, accident, emergency, act of God or other contingency interfere with the delivery by the Seller or with the performance by the Seller or any of its obligations under these terms then the Seller shall be entitled at its sole discretion to suspend its performance of any such obligation or to cancel any contract for the purchase of goods and shall not be liable to the Buyer in any respect.
6. REJECTION: The Buyer shall not have any right of rejection but shall in the event of any dispute, including disputes regarding quality, accept and pay for the goods and later settle any claim with the Seller. If, notwithstanding this clause, any goods are rejected by the Buyer, the Seller shall be free to sell such goods without prejudice to any claim the Seller may have against the Buyer for damages for any other rights or remedies of the Seller.
7. RISK AND INSURANCE: Risk in any goods supplied by the Seller to the Buyer shall pass to the Buyer when such goods are delivered to the Buyer or into custody on the buyer’s behalf provided that if the Buyer fails to accept the goods or requests that delivery of the goods be delayed, risk in the goods shall be borne by the Buyer from the time of such failure or request, as the case may be. The Buyer shall insure the goods for their full insurable value at all times after risk in the goods has passed to the Buyer until ownership of the goods has passed to the Buyer.
8. OWNERSHIP: Ownership of the goods is retained by the Seller until payment in full has been received for the goods, for all other goods supplied to the Buyer by the Seller at any time pursuant to any other contract or delivery, and for any other amount payable pursuant to these Terms. Unless the Seller directs otherwise, the Buyer may dispose of any goods purchased from the Seller to third parties by way of bona fide sale at full market value in its normal course of trading. If the Seller so requests, any proceeds of sale of any goods owned by the Seller received by the Buyer shall be deposited by the Buyer in a separate bank account established for the purpose and held by the Buyer on trust for the Seller. The relationship of the Buyer to the Seller in respect of goods owned by the Seller shall be fiduciary and the Seller shall have the right to trace and claim the proceeds of any disposition whatsoever of such goods. The Buyer shall segregate and store the goods owned by the Seller in such a way that they can be clearly recognised as the property of the Seller.
9. PAYMENT: The buyer shall pay all accounts by the due date provided that the Seller reserves the right to require cash on delivery or other payment terms. Notwithstanding such credit period, full payment for all goods at any time supplied by the Seller shall become due immediately upon the Buyer becoming insolvent or upon the commencement of any act or proceeding in which the Buyer’s insolvency is involved or if the Buyer resolves to wind up or is ordered to be wound up or has a receiver, liquidator of official manager appointed in respect of all or any of its assets. If the Seller at any time deems the credit of the Buyer to be unsatisfactory, it may require security for payment and may suspend performance of its obligations until the provision of sufficient security. If any payment is overdue in whole or in part, the Seller may (without prejudice to any of its other rights or remedies) recover and may resell any goods owned by the Seller. The Buyer hereby grants to the Seller an irrevocable licence to enter upon the Buyer’s premises by its servants or agents in order to take possession of and remove any such goods. The Seller shall not be liable for any damage, injury or loss howsoever caused resulting from such recovery or sale and any costs incurred by the Seller in respect of such recover of sale shall be payable by the Buyer upon demand.
10. PENALTY FOR LATE PAYMENT: Failure by the Buyer to make payment of any amount payable pursuant to these Terms on the due date shall constitute a default and, without prejudice to any other rights or remedies of the Seller, the Buyer shall pay to the Seller penalty interest on any such amount at the rate per annum equal to 11% plus the current overdraft rate per annum available to the Seller from a banker nominated by the Seller. Such interest shall be payable upon demand and shall accrue on a daily basis from the due date for payment and be compounded monthly. The Buyer shall indemnify the Seller against all loss, costs and expenses which the Seller may suffer or incur as a result of any failure by the Buyer to make due punctual payment.
11. WARRANTIES: The Seller warrants only that the goods are of the quality agreed. THERE ARE NO OTHER WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER REPRESENTATIONS, STATEMENTS, WARRANTIES OR CONDITIONS WHETHER STATUTORY OR MADE BY ANY REPRESENTATIVE OR AGENT OF THE SELLER OR OTHERWISE, WHETHER EXPRESS OR IMPLIED ARE HEREBY EXCLUDED. The Seller shall have no liability in respect of quality or otherwise unless the Buyer notifies the Seller in writing of its claim within seven 7 days after the delivery. The Seller shall have the option, exercisable at its discretion to repair or replace any goods in respect of which any claim is made and proven, or to refund a portion of the applicable price, thereto, thereby fully discharging all legal liability, of the Seller. The Seller shall not be liable for any loss of profits or any consequential, indirect or special loss, damage or injury of any kind whatsoever suffered by the Buyer. The Buyer shall indemnify the Seller and hold it harmless against any claim by any of the Seller’s employees, agents, contractors, customers or by any other person in respect of any loss, damage or injury arising directly or indirectly from any breach of any of the obligations of the Seller or from any negligence on the part of the Seller in respect of goods supplied to the buyer.
12. ARBITRATION: Any dispute whatsoever arising in respect of goods shall be refereed to the sole arbitration of a suitably qualified person to be agreed by the Seller and the Buyer or failing agreement appointed by the President for the time being of the New Zealand Law Society. Such arbitration shall be conducted in accordance with the provisions of the Arbitration Act 1 908 or any statutory re-enactment, modification or amendment thereto for the time being in force.