1. SCOPE OF THESE TERMS OF TRADE
1.1 These Terms apply to all supplies of Goods by Breville to the Customer unless specifically varied or excluded by the parties in writing.
1.2 These Terms and any Invoice contain, and are deemed to be a conclusive record of, the entire agreement and understanding between Breville and the Customer with respect to the subject matter to which they relate. To the extent of any inconsistency between these Terms and the existence of any other agreement, arrangement or dealing in connection with the supply of goods to the Customer (including any inconsistency with any purchase order or Invoice) these Terms will prevail unless expressly stated otherwise.
1.3 These Terms may not be amended or varied unless agreed in writing by the parties.
1.4 Subject to clause 1.3, Breville expressly rejects any terms the Customer proposes that vary these Terms and no act or omission by Breville constitutes agreement to any terms proposed by the Customer that vary these Terms.
1.5 An Invoice cannot be amended for any reason whatsoever unless, within 60 days of the delivery: (a) Breville or the Customer gives to the other a written notice explaining its objection to the Invoice; and (b) Breville and the Customer agree in writing to amend the Invoice.
In these Terms unless inconsistent with the subject or context:
2.1 "Breville" means Breville New Zealand Limited (NZCN 914681 , its successors in title, transferees, assigns and, where applicable, its officers, employees and agents.
2.2 "Customer" means the person named on the Invoice as the Customer, any person who accepts the Invoice as Customer and the successors in title, legal personal representatives, assigns, employees, servants and agents of the Customer. Where more than one person is included in the term "Customer" they will be jointly and severally liable.
2.3 "Delivered" means that the Goods have been, as directed by the Customer, either: (i) delivered to the Customer; or (ii) removed from the premises of Breville. The receipt by Breville of a delivery acknowledgment signed by the Customer is sufficient evidence of delivery.
2.4 "Delivery Date" means the date for delivery of a batch of Goods.
2.5 "Goods" means any electrical goods or other goods supplied, or to be supplied, by Breville to the Customer.
2.6 “Insolvency Event” means any of the following events:
(a) a person becomes insolvent if they cannot satisfy the solvency test as defined at section 4(1) of the Companies Act 1993, states that it is insolvent or is presumed insolvent under an applicable law;
(b) a person is wound up, dissolved or declared bankrupt or commits an act of bankruptcy;
(c) an IP Commencement;
(d) a person enters into or becomes subject to: (i) any arrangement or composition with one or more of its creditors or any assignment for the benefit of one or more of its creditors; or (ii) any re-organisation, moratorium, deed of company arrangement or other administration involving one or more of its creditors;
(e) an application or order is made (and, in the case of an application, it is not stayed, withdrawn or dismissed within 30 days), meeting called, resolution passed, proposal put forward, or any other action taken which is preparatory to or could result in an Insolvency Event;
(f) a person is taken under the Insolvency Act 2006 to have failed to comply with a bankruptcy notice;
(g) a company fails to take the required action set out in a statutory demand (made in accordance with section 289 of the Companies Act) within 15 working days of the date of service (or such longer period as a court has ordered);
(h) a person suspends payment of its debts, ceases or threatens to cease to carry on all or a material part of its business or becomes unable to pays its debts when they fall due; or
(i) anything occurs under the law of any jurisdiction which has a substantially similar effect to any of the other paragraphs of this definition,
unless the event occurs as part of a solvent reconstruction, amalgamation, merger or consolidation that has been approved in writing by Breville.
2.7 “Insolvency Practitioner” means a liquidator, provisional liquidator, Controller, administrator, receiver, receiver and manager, encumbrancer, trustee for creditors, trustee in bankruptcy or other similar person.
2.8 "Invoice" means a written invoice from Breville to the Customer for a batch of Goods.
2.9 “IP Commencement” means an Insolvency Practitioner is appointed to, or takes possession or control of, any or all of a person’s assets or undertakings.
2.10 “PPSA” means the Personal Property Securities Act 1999 (New Zealand) .
2.11 "Purchase Price" means the price for Goods specified in the Invoice for those Goods.
2.12 “NZ CGA” means the Consumer Guarantee Act 1993 (NZ).
2.13 “NZ FTA” means the Fair Trading Act 1986 (NZ).
3. PAYMENT FOR GOODS AND QUOTATIONS
3.1 The Customer must pay Breville the Purchase Price in New Zealand Dollars within thirty days from the end of the calendar month during which those goods were Delivered without deduction, set-off, counter-claim or cross-demand.
3.2 If the Purchase Price is not paid in full in accordance with clause 3.1, the Customer must pay Breville a late payment fee calculated daily on the unpaid amount from the date that the unpaid amount became due and payable to the date that the Purchase Price is paid in full at a monthly rate of interest equal to 1.5% per calendar month.
3.3 The Customer is not entitled to withhold payment of any amount due on account of any claim against Breville whether admitted or disputed by Breville.
3.4 Unless otherwise specified, all prices are exclusive of any sales tax or goods and services tax, which will be charged at the appropriate rate where applicable.
3.5 If Goods are Delivered in instalments, Breville may invoice on a pro rata basis as and when delivery of an instalment has been made, and payments shall be due in respect of each Delivered instalment notwithstanding whether other instalments have not been, or will not be, Delivered.
4. DELIVERY OF GOODS
4.1 The Customer acknowledges that any Delivery Date is an estimate only and that, whilst Breville shall use reasonable and commercial endeavours to deliver the Goods on or before the Delivery Date, Breville does not warrant or represent that the Goods will be delivered on the Delivery Date. Breville will not be liable under any circumstances for any loss, damage or delay occasioned to the Customer arising from late or non-delivery nor shall the Customer be entitled to treat the agreement between Breville and the Customer as repudiated if Goods are not delivered on or before the Delivery Date.
4.2 If Breville is unable to deliver Goods to the Customer on or before the Delivery Date for any reason whatsoever beyond the control of Breville including but not limited to industrial dispute, fire or Act of God, then Breville may:
(a) deliver the Goods to the Customer after cessation of any such disabling event and these Terms will continue to have full force and effect as though the Goods had been delivered on or before the Delivery Date; or
(b) rescind these Terms in which case the Customer will have no recourse against Breville except for a refund of any part of the Purchase Price paid in respect of the Goods.
4.3 The Customer agrees that if it fails or refuses to take delivery of Goods then Breville may, in its sole discretion and without prejudice to any of its other rights, store those goods at the risk and expense of the Customer.
4.4 Where the Customer requests Breville to arrange for transportation of Goods, the Customer must pay for all carriage charges and expenses including cartage and insurance, unless otherwise agreed by Breville in writing.
4.5 Where Goods are transported by Breville or a contractor engaged by or on behalf of Breville, Breville shall be under no liability whether in tort or contract for any loss or damage to those goods or delay in delivery whether or not such loss, damage or delay is caused by the negligence or wilful act or omission of Breville or its contractors.
5. LIABILITY AND INDEMNITY
5.1 Any claims by the Customer in respect of Goods must be notified in writing by the Customer to Breville within seven days after delivery and if the Customer does not do so, the Customer is deemed to forever release and discharge Breville from all actions, suits, charges, claims and demands which relate directly or indirectly to those goods.
5.2 Subject to clause 5.6, the Customer acknowledges and agrees with Breville that:
(a) Goods Delivered are fit for the purpose for which they were ordered and/or purchased;
(b) Breville has given the Customer no warranty as to the fitness of Goods for any particular purpose or that Goods are of acceptable quality; and
(c) any term, warranty, condition, representation or obligation whether express or implied and whether as to quality, fitness for any particular purpose or otherwise relating to Goods which is not expressly stated herein is expressly excluded from these Terms to the extent permitted by law.
5.3 The Customer agrees that Breville, to the extent permitted by law, accepts no responsibility or liability whether in contract or tort (including negligence or breach of statutory duty) or otherwise for any loss, damage, cost or expense of any kind whether direct, indirect or consequential (including for loss of profits, business or anticipated savings):
(a) arising directly or indirectly out of or in respect of the use, custody or supply of Goods; or
(b) caused directly or indirectly by the inadequacy of Goods for any purpose or any defect in Goods;
and the Customer releases and forever discharges Breville from all such responsibilities and liabilities and any claims, demands or causes of action in respect thereof.
5.4 For the purposes of section 5D of the NZ FTA and section 43 of the NZ CGA:
(a) the Services, Products and Deliverables provided to you under or in connection with this Agreement are being provided and acquired in trade;
(b) if the NZ FTA and/or NZ CGA applies to any Services, Products or Deliverables supplied to you under or in connection with this Agreement, the parties agree to contract out of the NZ CGA and sections 9, 12A and 13 of the NZ FTA; and
(c) it is fair and reasonable for the parties to be bound by this clause
5.5 The Customer hereby indemnifies Breville against any liability, loss, damage, cost or expense suffered or incurred by Breville as a result of Breville taking any action or exercising any of its rights under these Terms, including but in no way limited to any debt collection costs and related legal costs.
5.6 The Customer shall, to the extent permitted by law, indemnify and keep indemnified Breville against any actions, proceedings, claims or demands for loss, damage, cost or expense whether direct, indirect or consequential (including for loss of profits, business or anticipated savings) brought, made or threatened against Breville by any third party arising directly or indirectly out of or in respect of the use, custody or purchase and supply of Goods.
5.7 Nothing in this contract, whether express or implied, shall be taken to exclude, restrict or modify any non excludable conditions, warranties or rights contained in any applicable legislation.
5.8 If Breville is held liable in respect of Goods for a breach of a guarantee arising under applicable statutes of any relevant jurisdiction, to the extent permitted by law any liability for such breach will be limited at Breville’s option to any of the following as determined in the sole discretion of Breville: (a) a replacement of those goods or the supply of equivalent goods; (b) the payment of the value of the goods or of replacing the goods or of acquiring equivalent goods; (c) the repair or restoration of the goods; or (d) the payment of the costs of having the goods repaired or restored.
6. RETENTION OF OWNERSHIP
6.1 Upon Goods being Delivered to the Customer, those goods shall be at the Customer’s risk.
6.2 Notwithstanding clause 6.1, property in, and ownership of, Goods will remain with Breville and not pass to the Customer until the Customer has paid Breville for those goods in full and has also paid Breville all other amounts owing on any account whatsoever by the Customer.
6.3 When property in, and ownership of, Goods has not passed to the Customer, the Customer will, from the time those goods (the “Unpaid Goods”) are Delivered, take custody of the goods and retain custody of them as the fiduciary agent and bailee of Breville. The Customer will ensure that the Unpaid Goods do not lose their identity as, and are clearly identifiable as, the property of Breville and are properly stored, protected and insured.
6.4 When the Customer has custody of Unpaid Goods as the fiduciary agent and bailee of Breville under clause 6.3, the Customer may re-sell such goods but only as the fiduciary agent and bailee of Breville. The Customer cannot, however, incur any liability for or on behalf of Breville to any third party by contract or otherwise. Any re-sale of Unpaid Goods under this clause 6.4 must be at arms length, on market terms, and in the ordinary course of the Customer’s business.
6.5 Where the Customer re-sells Unpaid Goods under clause 6.4, then, with respect to the proceeds of the goods re-sold (the “Proceeds”), the Customer will hold on trust for Breville:
(a) the Proceeds, up to an amount equal to the amount owed to Breville in respect of those goods (“the Unpaid Purchase Price”); and
(b) where the Proceeds are less than the Unpaid Purchase Price, such part of the debt or other property received by the Customer as a result of the re-sale that equals in value the Unpaid Purchase Price minus the Proceeds.
The receipt on trust of the Proceeds, debt and other property in respect of Unpaid Goods re-sold under clause 6.4 will not discharge the Customer’s debt to Breville in respect of those goods until those amounts are actually paid to Breville.
6.6 The Customer will maintain records to ensure that trust money and trust property are clearly identifiable as being held on trust for Breville. Moneys held on trust for Breville will be kept separate until they are paid to Breville.
6.7 In the event that:
(a) the Customer fails to pay the Purchase Price for Goods in full by the due date as determined under clause 3.1;
(b) an Insolvency Event occurs in relation to the Customer;
(c) the Customer parts with possession of Unpaid Goods held under clause 6.3 otherwise than by way of sale in the ordinary course of the Customer’s business; or
(d) the Customer breaches any of the other provisions of these Terms,
Breville shall have the immediate right to:
(e) demand that the Customer immediately account to Breville for any money or property (including, but not restricted to, any Goods and any debt) held on trust for Breville;
(f) re-take possession of Unpaid Goods held by the Customer under clause 6.3 without notice to the Customer and for that purpose Breville may enter upon any premises occupied by the Customer or any other place where such goods are stored free from trespass;
(g) sell Unpaid Goods held by the Customer under clause 6.3 or not yet Delivered and apply the proceeds after defraying expenses of sale and enforcement in or towards reduction of amounts due and payable on any account whatsoever to Breville; and
(h) be indemnified by the Customer from and against (and the Customer must pay on demand to Breville) all loss, damage, costs or expenses which Breville may suffer or incur in exercising its rights under this clause 6.7.
6.8 The Customer must allow representatives of Breville, free from trespass, to enter any premises where Unpaid Goods held under clause 6.3 are stored and inspect such goods at any time.
6.9 If an IP Commencement occurs in relation to the Customer, the Insolvency Practitioner must immediately conduct a stocktake of all property (including trust property) belonging to Breville in the Customer’s custody and provide Breville with access to the results of that stocktake.
6.10 The Customer must comply with any reasonable directions given by Breville to ensure compliance with this clause 6.
6.11 The Customer shall be liable for all costs associated with the exercise of Breville’s rights under this clause 6, which will be payable by the Customer on demand by Breville.
6.12 The Customer irrevocably appoints Breville as its true and lawful attorney to recover any proceeds of Unpaid Goods re sold under clause 6.4 to any person and to exercise the Customer’s rights against such person, including, without limitation, the right to re-take possession of those goods.
6.13 Breville’s rights under this clause 6 in no way limit any other of its rights against the Customer.
7.1 In this clause 7, capitalised expressions have the meaning given to them in the PPSA.
7.2 The Customer acknowledges and agrees that by entering into these Terms, the Customer grants a Security Interest to Breville in the Unpaid Goods and any proceeds of sale in respect of those Unpaid Goods.
7.3 The Customer and Breville acknowledge and agree for the purposes of satisfying s 36(1)(b)(i)the PPSA that the description of the goods the subject of each and any Security Interest created under these Terms is as set out in these Terms and any Invoice in relation to those goods and the description of the goods in any Invoice is expressly incorporated into these Terms.
7.4 The Customer consents to Breville registering any one or more Financing Statements or Financing Change Statements in respect of any Security Interest created by or contemplated under these Terms, and undertakes to do all things reasonably required by the Supplier to facilitate this.
7.5 The Customer agrees to pay, on demand by Breville, all costs incurred in connection with registering any Financing Statement or any Financing Change Statement and shall indemnify Breville (and its agents) in respect of all such costs incurred.
7.6 The Customer agrees not to cause (directly or indirectly) the registration of a Financing Change Statement in respect of the Unpaid Goods without Breville’s prior written consent.
7.7 The Customer acknowledges that it waives its rights listed in section 107(2) of the PPSA and its rights to receive verification statements under the PPSA. The Customer agrees that sections 114(1)(a), 122, 133 and 134 of the PPSA will not apply.
7.8 The Customer agrees that Breville may exercise the rights in sections 108, 109, 111(1) and 120(1) of the PPSA whether or not Breville has priority over all secured parties and that Breville may charge for complying with a demand under section 162 of the PPSA.
7.9 For the purposes of the PPSA, Breville and the Customer agree that neither party will, or is entitled to, disclose information of the kind specified in the PPSA.
7.10 The Customer agrees that it will not enter into any agreement or arrangement which permits any other person to register any Security Interest in respect of the Unpaid Goods, the proceeds of sale of the Unpaid Goods, or any accounts owed in respect of the Unpaid Goods without Breville’s prior written consent.
7.11 The Customer agrees, until title in the goods pass to it, to keep all goods free of any charge, lien or security interest except as created under this Agreement and not otherwise deal with the goods in a way that will or may prejudice the rights of Breville under this Agreement or the PPSA.
7.12 The Customer agrees to give Breville at least 10 days’ prior written notice before changing any of its corporate details (such as its name, NZCN or NZBN) or principal place of business.
7.13 Notwithstanding anything else in these Terms, any exercise, or attempted exercise, of any enforcement right by Breville under these Terms does not prejudice or limit, in any respect, any other rights or remedies of Breville arising at law or in equity.
8.1 Breville reserves the right to accept or reject all or part of any order submitted by the Customer.
8.2 Subject to clause 5.6, the Customer may not cancel any orders unless: (a) written notice of intention to cancel the order is given to Breville within seven days after the date of the order; and (b) Breville (in its absolute discretion) notifies the Customer in writing that it agrees to accept the cancellation of the order; and (c) the Customer pays Breville any amounts necessary, as determined by Breville, to indemnify Breville against all loss or damage resulting from the cancellation.
9. OTHER TERMS
9.1 The Customer must immediately notify Breville of any alteration to the ownership or effective control of the Customer.
9.2 The Customer may not assign its rights contained in any agreement between Breville and the Customer to supply and purchase Goods without the prior written consent of Breville but any such agreement is assignable in whole or in part by Breville in its absolute discretion.
9.3 Breville will have the right to suspend deliveries of Goods (notwithstanding that the Customer may not be in arrears with any payment) where Breville in its absolute discretion considers the amount outstanding in the Customer’s account (whether actually due for payment or not) is the limit to which Breville is prepared to allow the Customer credit.
9.4 The Customer agrees that in the event of default of payment of a debt owed by the Customer to Breville, Breville may disclose all information relating to the Customer’s account to its debt collection agency for the purposes of receiving any or all amounts outstanding.
9.5 If any provision of these Terms, or the application of these Terms to any person or circumstance, is found to be invalid or unenforceable this will not affect the validity or enforceability of the other provisions of these Terms which will remain in full force and effect.
9.6 Notices or other communications to be given under these Terms will be deemed to have been given if they are in writing and signed by, or on behalf of, any of the respective parties and served upon the other party by being delivered by hand or sent by ordinary post or by being transmitted by facsimile. Any such notice or communication will be deemed to have been received at the time at which it is left at the recipient’s address or at the expiration of 48 hours from the time of posting or upon receipt by the sender of the facsimile transmission report.
9.7 These Terms will be governed by the laws of New Zealand and the Customer and Breville agree to submit to the jurisdiction of the New Zealand Courts.
9.8 The Customer agrees and acknowledges that it has read and fully understood these Terms and agrees to be bound by them.