Terms of Trade
Crave NZ Limited (Crave) - Terms of Trade
1.1 Buyer means the person(s) buying Goods or Services from Crave.
1.2 Guarantor means that person (or persons), or entity that agrees herein to be liable for the debts of the Buyer on a principal debtor basis.
1.3 Goods shall have the same meaning as in section 119 of the Contract and Commercial Law Act 2017 and are goods supplied by Crave to the Buyer (and where the context requires shall include Services).
1.4 Services shall mean all services supplied by Crave to the Buyer.
1.5 Price shall mean the price of the Goods described in clause 3. All prices exclude goods and services tax and all other applicable taxes and duties unless otherwise stated.
2.1 Any instructions received by Crave from the Buyer for the supply of Goods shall constitute acceptance of these terms.
2.2 Where more than one Buyer has entered into this agreement, the Buyers shall be jointly and severally liable for all payments of the Price.
2.3 These terms are the entire agreement between the parties in relation to the supply of Goods by Crave.
2.4 None of Crave’s agents or representatives are authorised to make any representations, statements, conditions or agreements on its behalf. Any variation of these terms must be agreed in writing and signed by the manager of Crave.
3. Price and Payment
3.1 The Price shall be either: Crave’s current list price at the date of supply or the quoted price. Any quoted price expires unless it is accepted in writing by the Buyer within 30 days of the quote on the terms and volumes set out in the quote.
3.2 Crave may by giving notice to the Buyer at any time up to 7 days before the date of supply increase (or otherwise vary) the Price.
3.3 Crave may require a deposit before accepting any order for Goods in which case no order for Goods will be processed until that deposit is paid. The deposit amount or percentage of the Price will be stipulated at the time of the order of the Goods and shall become immediately due and payable.
3.4 Time for payment for the Goods shall be of the essence and will be stated on the invoice, quotation or any other order forms. If no time is stated then payment shall be prior to delivery of the Goods.
3.5 Crave may withhold delivery of the Goods until the Buyer has paid for them in full.
3.6 Where Crave approves payment for Buyers on account all payments shall be on the payment terms notified by Crave at the time (usually either the 7th day after, or the 20th of the month after, invoice).
3.7 Goods and services tax together with all other applicable taxes and duties must be paid by the Buyer in addition to the Price.
4. Delivery of Goods
4.1 Delivery of the Goods shall be made to the Buyer’s address. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery, or delivery of the Goods shall be made to the Buyer at Crave’s address.
4.2 Delivery of the Goods to a carrier is deemed to be a delivery of the Goods to the Buyer.
4.3 The costs of carriage and any insurance which the Buyer reasonably directs Crave to incur shall be reimbursed by the Buyer (without any set-off or other withholding whatever) and shall be due on the date for payment of the Price.
4.4 The failure of Crave to deliver shall not entitle either party to treat this contract as repudiated.
4.5 Crave shall not be liable for any loss or damage whatsoever due to failure by Crave to deliver the Goods (or any of them) promptly or at all.
5. Risk and Title
5.1 Regardless of delivery, title to the Goods does not pass, and the Buyer holds the Goods as bailee for Crave until payment in full has been made.
5.2 Risk in the Goods passes to the Buyer on delivery. If, prior to title passing, Crave gives notice in writing to the Buyer to return the Goods or any of them the Buyer must comply with such notice at its own cost and the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease. If the Buyer fails to return the Goods when notified Crave (or its nominee) may enter upon and into land and premises owned, occupied or used by the Buyer or where the Goods are situated as the invitee of the Buyer and take possession of the Goods, without liability for any damage thereby caused.
5.2 If any of the Goods are damaged or destroyed prior to property in them passing to the Buyer, Crave is entitled, without prejudice to any of its other rights or remedies under these terms and conditions (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable in respect of the Goods. This applies whether or not the Price has become payable under these terms. The production of these terms by Crave is sufficient evidence of Crave’s rights to receive the insurance proceeds without the need for any person dealing with Crave to make further enquiries.
6.1 The Buyer shall inspect the Goods on delivery and shall within 7 days of delivery notify Crave of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Buyer shall afford Crave an opportunity to inspect any alleged defect, damage or failure. If the Buyer fails to comply with these provisions the Goods shall be conclusively presumed to be in accordance with the terms and any description or quote and free from any defect or damage.
6.2 For defective Goods which Crave has agreed in writing that the Buyer is entitled to reject, Crave’s liability is limited to either (in Crave’s discretion) replacing the Goods or repairing the Goods provided that: the Buyer has complied with the provisions of clause 6.1; and the Goods are returned at the Buyer’s cost in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonable possible in the circumstances.
6.3 Crave may (in its discretion) accept the Goods for credit but this may incur a restocking fee of 25% of the value of the returned Goods plus any freight.
7.1 For Goods not manufactured by Crave the warranty shall be limited to the warranty provided by the manufacturer of the Goods (if any). Crave shall be under no liability whatsoever except for the express conditions as detailed and stipulated in the manufacturer’s warranty (if any).
8. Consequences of Default
8.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% compounding per calendar month and shall accrue at such a rate after as well as before any judgement.
8.2 If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify Crave from and against all of Crave’s costs and disbursements including on a solicitor and own client basis and in addition all of Crave’s nominee’s costs of collection.
8.3 Without prejudice to any other remedies Crave may have, if at any time the Buyer is in breach of any obligation (including those relating to payment), Crave may suspend or terminate the supply of Goods to the Buyer and any of its other obligations under these terms. Crave will not be liable to the Buyer for any loss or damage the Buyer suffers because Crave exercised its rights under this clause.
8.4 If any account remains unpaid at the end of the second month after supply of the Goods or services Crave may in its discretion add the greater of $20.00 or 10.00% of the amount overdue to the Buyer’s account. For the avoidance of doubt, this amount is in addition to the interest payable under clause 8.1.
8.5 In the event that: any money payable to Crave becomes overdue, or in Crave’s opinion the Buyer will be unable to meet its payments as they fall due, or; the Buyer 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 Buyer or any asset of the Buyer, then without prejudice to Crave’s other remedies at law Crave shall be entitled, by notice to the Buyer, to cancel all or any part of any order of the Buyer which remains unperformed in addition to and without prejudice to any other remedies; and all amounts owing to Crave shall, whether or not due for payment, immediately become due and payable.
9. Personal Property Securities Act 1999 (PPSA)
9.1 The Buyer acknowledges and agrees that these terms grant a security interest in all Goods supplied by Crave to the Buyer (and the proceeds of those Goods, if any).
9.2 Crave may apply all payments we receive in such manner as we desire to preserve any purchase money security interest in the Goods (or proceeds).
9.3 The Buyer undertakes to: sign any further documents and/or accurately provide any further information which Crave may reasonably require to register a financing statement or financing charge statement on the Personal Property Securities Register and give Crave not less than 14 days’ prior written notice of any proposed change in the Buyer’s name, address and/or any other contact or business details; and immediately advise Crave 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 Crave and the Buyer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply.
9.5 The Buyer 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 Buyer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
10. Intellectual Property
10.1 Where Crave has designed or drawn Goods for the Buyer, then the copyright and all intellectual property rights in those designs and drawings shall be owned by Crave on creation.
10.2 Where the Buyer has supplied drawings or other intellectual property to Crave the Buyer grants to Crave a perpetual, royalty-free, worldwide license to use the drawings or other intellectual property to fulfil its obligations under these terms (including fulfilment of any order or other instruction of the Buyer) and agrees to indemnify Crave against any damages, costs (including costs on a solicitor/client basis), expenses or losses arising (whether in contract, tort including negligence, or otherwise) out of Crave’s use of the supplied drawings or other intellectual property or any breach of the warranty given by the Buyer in clause 10.3.
10.3 Where any designs or other intellectual property have been supplied by the Buyer to Crave the Buyer warrants that Crave’s use of those designs or other intellectual property will not infringe the rights of any third party.
11.1 Crave may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. On giving such notice Crave shall promptly repay to the Buyer any sums paid in respect of those Goods. Crave shall not be liable for any loss or damage whatsoever arising from such cancellation.
12.1 If any provision of these terms is found to be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
12.3 Crave shall be under no liability whatsoever to the Buyer for any indirect loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by Crave of these terms.
12.4 In the event of any breach of this contract by Crave the remedies of the Buyer shall be limited to damages.
12.5 Under no circumstances shall the liability of Crave exceed the Price of the Goods.
12.6 Neither party shall be liable for any default due to any act of God, terrorism, war, strike, lock out, industrial action, flood, storm or other event beyond the reasonable control of either party.
12.7 The Buyer shall not set off against the Price amounts due from Crave.
12.8 Crave may license or sub-contract all or any part of its rights and obligations without the Buyer’s consent.
12.9 Crave reserves the right to amend these terms at any time. Any change will take effect from the date on which Crave notifies the Buyer or such later date as Crave my stipulate in its discretion.