TERMS & CONDITIONS of SALE
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.
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.
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
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.
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.
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.
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.
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.
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.