Terms and Conditions of Sale

PERNOD RICARD NEW ZEALAND LIMITED

 

In these terms and conditions the ‘Company’ means Pernod Ricard New Zealand

Limited that supplies goods or services to the purchaser of such goods or services

(the ‘Purchaser’) and ‘goods’ means the wine, alcoholic and/or non-alcoholic

beverages and other products supplied by the Company and, in respect of each

order of goods from the Purchaser accepted by the Company, means the goods

described in the invoice issued by the Company to the Purchaser in respect of the

relevant order, and any services related thereto. The Company supplies all goods

and services to every Purchaser, notwithstanding anything that may be stated to

the contrary in the Purchaser’s enquiries or on the Purchaser’s orders or otherwise

by the Purchaser, upon the terms and conditions set out below and, in respect of

each order of goods from the Purchaser, the terms and conditions set out below

are deemed to include the invoice issued by the Company in respect of the relevant

order. Without limiting the generality of the foregoing, the ordering of goods or

services by the Purchaser will be deemed to be acceptance by the Purchaser of

these terms and conditions.

 

Price

1. The Purchaser shall pay the price indicated on the invoice, order form, or other

similar document issued by the Company.

2. The price payable under Clause 1 shall include Goods and Service Tax and any

other taxes, duties, and levies payable in respect of the supply of goods or

services as at the date of the invoice therefor. Should the price be subject to

a credit card charge, the Company reserves the right to increase the price in

respect of any increases in card charges to which the Company is subjected.

3. The Company may alter prices without notice and the purchase price of goods

or services may be different from the price quoted or the price current when the

goods or services are ordered.

4. The Purchaser shall make all payments due to the Company in full without any

deductions, whether by way of set off, counter-claim, or any other equitable or

legal claim.

 

Terms of Payment

5. The Purchaser shall pay all amounts due to the Company on the due date. Unless

otherwise specified by the Company in writing, the due date shall be the 20th of

the month following the date of invoice.

6. in the event that:

(a) any amount payable by the Purchaser to the Company is overdue, or the

Purchaser fails to meet any other obligation to the Company (whether in

relation to the sale of goods or otherwise), or in the Company’s opinion the

Purchaser is likely to be unable to meet its payment or other obligations to

the Company;

(b) the Purchaser commits any act of bankruptcy (as defined under the

Insolvency Act), becomes insolvent, has a receiver appointed in respect of

all or some of its assets, makes or is likely to make an arrangement with its

creditors, has a liquidator (provisional or otherwise) appointed, or is placed

under statutory or official management;

(c) the Purchaser, if a company, fails to provide the Company with a certificate of

solvency (as defined by the Companies Act 1993) within 10 days of receiving

a written demand therefor from the Company or is otherwise presumed to be

unable to pay its debts in accordance with section 287 of the Companies Act

1993; or

(d) the ownership or effective control of the Purchaser or the Purchaser’s

business is transferred or the nature of the Purchaser’s business is materially

altered;

then:

(aa) the Company shall be entitled to cancel all or any part of any contract or

contracts with the Purchaser which remains unperformed, in addition to

and without prejudice to its other remedies;

(bb) All amounts outstanding under any contract with the Company shall,

whether or not due for payment, immediately become due and payable;

and

(cc) the Company shall be entitled to reclaim any of its goods in the Purchaser’s

possession or control and to dispose of them for its own benefit, and for that

purpose the Company shall be entitled, without notice, to enter directly or

by its agents on any premises where it believes goods which it has supplied

may be stored, without in any way being liable to any person, and the

Purchaser shall fully indemnify the Company against any claims or costs

arising from any action taken by the Company under this subclause.

7. The Purchaser shall upon demand pay the Company interest, at the default

interest rate of 1.25% per month, in respect of all of the Purchaser’s indebtedness

which is overdue. Such interest shall accrue on a daily basis from the date

when payment is due until the date when payment is actually received and the

Purchaser shall be liable to pay all expenses and legal costs of the Company as

between solicitor and client in relation to obtaining remedy of such failure to pay.

The default interest payable under this clause is charged by way of damages for

failure to pay and does not imply the granting of, or an extension of, credit by the

Company to the Purchaser.

8. If the Purchaser makes default in payment or in taking delivery in time, the

Company shall be entitled to terminate any contract with the Purchaser so far

as it is unfulfilled, without prejudice to its right to recover all sums owing to

it in respect of deliveries already made and services already provided. Upon

termination of the contract, the Company shall be entitled to dispose of the

balance of the goods contracted for and the Purchaser shall indemnify the

Company for any loss in price incurred by it on realisation against the price at

which such goods were contracted to be bought by the Purchaser.

9. Where the Purchaser owes any amount to the Company, the Company shall be

entitled, at its complete discretion, to accept any payment received and apply it

towards satisfaction of any such indebtedness.

10. The Company shall be entitled to assign to any other person or company all

or any part of the Purchaser’s indebtedness to the Company and the assignee

shall be entitled to claim all or part of the indebtedness and shall have the same

rights of recovery as the Company.

11. The Company shall be entitled to cancel all or any part of any contract or

contracts with the Purchaser at any time with or without prior notice. Any

such cancellation shall be without prejudice to the Company’s other rights and

remedies including, but not limited to, those which may arise from any breach or

non-compliance by the Purchaser.

 

Delivery of Goods

12. Unless otherwise agreed, it shall be the Purchaser’s responsibility to arrange

and pay for transportation of goods from the Company’s premises and any

transit insurances in respect of such goods, and the Company shall not be liable

for any loss or damage to the goods during transportation, even though such

loss or damage may be caused by the Company’s negligence or other default.

13. Unless the parties otherwise agree in writing, delivery shall be deemed to be

effected upon the transfer of possession of goods to the Purchaser or the

Purchaser’s agents.

14. If the Company is to deliver goods and delivery is delayed for any reason, the

Company shall not be liable to the Purchaser or any other party for any loss

sustained due to such delay and the Company reserves the right to cancel

delivery of those goods or such instalments thereof without prejudice to its

rights to recover all sums owing to it in respect of deliveries already made.

15. Where the Purchaser fails to uplift or accept goods by the delivery date specified

or such later date as the parties agree, the Purchaser shall pay reasonable

storage costs until such time as the Purchaser uplifts or accepts those goods,

such costs to be determined by the Company.

16. If the Company is to deliver goods and the goods are ready for delivery on

the date specified by the order of the Purchaser but the Purchaser does not

take delivery when requested by the Company to do so, the Company shall be

entitled to invoice the Purchaser for payment in accordance with Clause 5.

 

Risk and Title

17. Risk in goods supplied, or to be supplied, by the Company shall pass from the

Company to the Purchaser when the goods are delivered, when the Company

first makes an attempt to deliver if the Purchaser fails to accept the goods, or on

the date of a request by the Purchaser to delay delivery, whichever is the earlier.

18. The Purchaser agrees that property in the goods shall not pass until:

(a) the Purchaser has paid all amounts owing for the particular goods;

(b) the Purchaser has met all other obligations of the Purchaser to the Company

in respect of the goods.

By accepting delivery of the goods, the Purchaser agrees:

(a) that these terms and conditions constitute a security agreement for the

purposes of Section 36 of the Personal Property Securities Act 1999 (PPSA);

(b) that a security interest exists in all goods (and their proceeds) previously

supplied by the Company to the Purchaser (if any) and the Purchaser grants

a security interest in all goods (and their proceeds) supplied in the future by

the Company to the Purchaser;

(c) that on the enforcement of those security interests created by these terms

and conditions to which the PPSA applies, Sections 114(1)(a), 133 and 134 of

the PPSA shall not apply. The Purchaser also agrees to waive any rights the

Purchaser may have under Sections 116, 120(2) and 121 of the PPSA on such

enforcement;

(d) to keep records of the goods until payment in full;

(e) to return the goods if requested to do so by the Company following

non-payment or non-fulfilment of any other obligation of the Purchaser under

this Agreement any amount due to the Company under this Agreement,

without prejudice to the Company’s other rights and remedies;

(f) that the Company has the right at all reasonable times to fully inspect the

goods and any parts of them;

(g) to keep the goods free and clear of all liens, claims, taxes, charges, pledges,

encumbrances, or adverse claims of any nature;

(h) that it will not register or allow any person to register a financing change

statement or a change demand in respect of the goods;

(i) that it will execute all such further documents and do all such further acts and

things as the Company may reasonably require for the purpose of registering

a financing statement or financing change statement on the Personal

Property Securities Register;

(j) that its proper legal name appears herein and will not change its name,

address or contact details without providing the Company with 30 days prior

written notice;

(k) to waive any right to receive any verification statement, financing statement

or financing change statement; and

(l) that it has not agreed to postpone the time for attachment of the security

interest granted herein. Nothing in this clause shall be construed as allowing

the Buyer to return the goods supplied or any part of them because they

are surplus to requirements or for non-payment or for any other reason

whatsoever.

Terms defined in the PPSA have the same meaning herein.

 

Cancellations

19. Subject only to any obligatory statutory rights, no cancellation, addition,

deletion, amendment, or variation of any kind of or to any contract of supply

between the parties may be made except with the consent of the Company in

writing.

 

Claims and Limitations of Liability

20. Subject only to any mandatory liability or guarantee imposed by statute, and

without prejudice to any rights granted thereby to the Purchaser.

(a) all warranties, descriptions, representations, or conditions, whether

implied by law, trade, custom, or otherwise and whether relating to fitness,

merchantability, suitability for purpose, or otherwise, and all specific

conditions, even though such conditions may be known to the Company, are

expressly excluded;

(b) the Company shall not be liable in any way whatsoever to the Purchaser or

any third party, whether in tort (including negligence), contract, or otherwise,

for any loss or damage whatsoever, whether direct, indirect, special, or

consequential, and all such liability is expressly excluded;

and

(c) the liability of the Company in respect of any order of goods or services

shall in any event be limited to the lesser of the purchase price of the goods

or services complained of, the cost of replacing the defective goods or

resupplying the defective services, and the actual loss or damage suffered by

the Purchaser.

21. In addition to any statutory rights and remedies that the Purchaser may have,

the Company may, at its complete discretion, replace or give credit for all

goods and services supplied and established to be defective, provided that the

following conditions are met;

(a) The right to reject defective or non-conforming goods is limited so as to be

effective only if rejection is notified in writing to the Company within three

(3) days of receipt of the goods and the goods are forthwith returned to

the Company at the Buyer’s expense. No claim for damages or otherwise

in respect of defects or non-conformity of the goods or otherwise shall

be effective or enforceable unless written notice thereof is given to the

Company within thirty (30) days of receipt of the goods.

(b) all claims must specifically identify the defect and, where possible in relation

to goods, be accompanied by the defective goods or a sample thereof; and

(c) the Company shall have a reasonable opportunity to investigate the claim.

22. If the Company replaces goods, it shall deliver such goods to the Purchaser’s

premises at the Company’s risk and expense.

23. If at any time the Purchaser expressly or by implication holds itself out as

acquiring from the Company goods for resale or goods and/or services for the

purposes of a business, all supplies of goods and services to the Purchaser

by the Company shall be deemed to be for the purposes of the Purchaser’s

Business (as that latter term is defined in the Consumer Guarantees Act 1993).

In such event, as between the Company and the Purchaser, the guarantee

provisions of the Consumer Guarantees Act 1993 are expressly excluded and

shall not apply to any supplies of goods and services by the Company to the

Purchaser.

 

Right of Set Off

24. (a) The Company may apply (without prior notice) all or part of any credit

balance with the Company towards satisfaction of any amount owing

(whether or not due to payment) by the Purchaser to the Company.

(b) If at any time any amount is contingently due or is not quantified, the

Company may retain and withhold repayment of any credit balance the

Purchaser may have with the Company pending such amount becoming due

or being quantified.

(c) The Company shall not be obliged to exercise any of its rights conferred

by this clause. The exercise or non-exercise of those rights shall not affect,

impair, or otherwise, detract from: (i) any securities or other documents held

now or in the future by the Company, to secure any indebtedness which

may be the subject of a set off hereunder, or (ii) any rights, privileges, or

directions available to the Company, or any of its subsidiaries under general

law, under any security or other documents or otherwise howsoever, and

shall be without prejudice and in addition to such rights, privileges, and

directions.

(d) The Purchaser may not assign any credit balance which it may have with the

Company and undertakes not to attempt any such assignment.

 

Non-waiver

25. If at any time the Company does not enforce any of these terms and conditions

or grants the Purchaser time or other indulgence, the Company shall not be

construed as having waived that term or condition or its right to later enforce

that or any other term or condition.

 

Severability

26. Where any provision of these terms and conditions of sale is rendered void,

unenforceable, or otherwise ineffective by operation of law, that provision

will be considered to be severed by these terms and conditions and such

severance shall not affect the validity, enforceability or effectiveness of any

other provision in these terms and conditions.

 

Terms and Conditions of Sale

27. These terms and conditions may only be varied by the Company, in its absolute

discretion, and the only circumstances in which any variation to these terms

and conditions will apply are where a duly authorized representative of the

Company has expressly agreed in writing to that variation. In the event that any

of these terms and conditions are in conflict with the terms of any other written

agreement pursuant to which the Company provides services to the Purchaser,

the terms of such other written agreement shall prevail. The Company reserves

the right to review The Terms and Conditions of Sale annually. These terms

and conditions take precedence over any terms which may be offered by the

Purchaser.

 

Circumstances Beyond the Company’s Control

28. The Company shall not be liable for any failure to supply goods or services or

meet any other obligation owed to the Purchaser where such failure results from

fire, flood, industrial dispute, act of government (such as a change in legislation,

regulation, or order made under legislative authority), or other circumstances

beyond the Company’s control.