These Purchase Terms and Conditions ("Terms") apply to all transactions between Season's Best Limited ("Season's Best") and you ("Supplier") and will be deemed to be incorporated into every Purchase Order made by Season's Best to the Supplier.
1. DEFINITIONS
(a) (b) (c) (d) (e) In these Terms, unless the context otherwise requires:
"Confidential Information" has the meaning given to the term in clause 11.
"Force Majeure Event" means an unforeseeable event caused by a circumstance beyond a party's reasonable control and that could not have been prevented or avoided by the exercise of all due diligence.
"Goods" means any goods which are the subject of a Purchase Order to be supplied by the Supplier to Season's Best.
"GST" means Goods and Services Tax as defined in the Goods and Services Tax Act 1985.
"GST Act" means Goods and Services Tax Act 1985.
"Season's Best" means Season's Best Limited;
"Purchase Order" means a purchase order issued by Season's Best to a Supplier for the supply of Goods and/or Services.
"Services" means any services which are the subject of a Purchase Order to be supplied by the Supplier to Season's Best.
"Specifications" means the specifications or quality parameters included or referred to in the Purchase Order.
"Terms" means these terms and conditions.
"Warranties" means those warranties set out in clause 9.
"Working Days" means any day of the week other than a Saturday, Sunday or a New Zealand statutory public holiday.
Include or including does not imply any limitations.
A reference to an enactment, regulation or industry standard is a reference to that enactment, regulation or industry standard as amended.
The singular includes the plural and vice versa.
Person includes a reference to a body corporate, government agency and to an unincorporated body or persons.
2. ORDERING OF GOODS
Purchase Orders
(a) Season's Best may order the Goods or the Services by submitting to the Supplier a completed Purchase Order, electronically or otherwise.
(b) The Purchase Order will be deemed accepted and binding on the Supplier, unless the Supplier notifies Season's Best in writing that the Supplier cannot accept the Purchase Order within 3 Working Days of the date of the Purchase Order.
(c) Season's Best can withdraw the Purchase Order without liability or compensation to the Supplier at any time prior to acceptance by the Supplier.
Fulfilment of Purchase Orders
(d) Time is of the essence in the fulfilment of each and every Purchase Order. The Supplier will immediately advise Season's Best in writing of any delay or anticipated delay in the delivery or performance of a Purchase Order.
3. NO MINIMUM VOLUME COMMITMENT
(a) Nothing in these Terms requires Season's Best to purchase any minimum volume of the Goods or the Services from the Supplier or require Season's Best to incur any minimum spend in respect of the Goods or the Services with the Supplier.
4. DELIVERY
(a) All Goods and Services shall be delivered within the time specified in the Purchase Order ("Delivery Date").
(b) The Supplier shall give notice immediately if a Delivery Date in an accepted Purchase Order cannot be met ("Late Delivery Notice"). The Supplier will then have 10 Working Days of receipt of the Late Delivery Notice to remedy the late delivery.
(c) The Goods will not be deemed delivered unless an authorised representative of Season's Best, has signed the delivery acknowledgement receipt.
(d) The provision of the Services will not be deemed completed unless an authorised representative of Season's Best has signed a service completion acknowledgment receipt.
(e) Title in the Goods passes to Season's Best upon payment. Risk of loss or damage to the Goods passes to Season's Best upon Delivery of the Goods.
5. QUALITY
(a) (b) (c) Season's Best reserves the right to inspect or test Goods by a Season's Best employee or appointed representative at its cost before delivery. The Supplier shall facilitate inspection or testing when required by Season's Best. Goods will only be deemed to have been accepted by Season's Best when they have been inspected and expressly accepted by an authorised employee or representative of Season's Best.
If the Goods or the Services are found to be non-compliant with the Warranties ("Defective Goods or Services"), then Season's Best may do any one or more of the following at the Supplier's cost by giving the Supplier written notice, together with any reasonable evidence to support the warranty claim ("Warranty Claim"):
(i) (d) (e) Require the Supplier to repair the Defective Goods or the Services;
(ii) Require the Supplier to replace the Defective Goods with identical Goods;
(iii) Require the Supplier to re-perform the Defective Services; or
(iv) Reject the Defective Goods or Services and require the Supplier to provide a refund or a credit against the Price paid by Season's Best for the Defective Goods or Services.
The Supplier must comply with the requirements set out in the Warranty Claim within 7 Working Days of the date of the Warranty Claim.
If Season's Best is not satisfied (acting reasonably) with the Supplier's progress in repairing, replacing or re-performing the Defective Goods or Services (including the repair, replacement or re-performance not being completed within the timeframe specified in clause 5(d), then Season's Best may:
(i) Reject the Defective Goods or Services and clause 5(d) will apply; or
(ii) Arrange for the Defective Goods to be repaired or replaced by a third party and the Supplier will reimburse all costs and expenses incurred by Season's Best in doing so.
(f) If the Supplier receives a Warranty Claim from Season's Best rejecting the Defective Goods under clause 5(c)(iv), then the Supplier must remove any rejected Goods from the Season's Best's premises at the Supplier's risk and cost. If the Supplier does not remove the rejected Goods within 7 Working Days of the date of the Warranty Claim, then Season's Best may return the Defective Goods to the Supplier and the Supplier will reimburse all costs and expenses incurred by Season's Best in doing so.
(g) The authorised representative's signing of a delivery acknowledgement under clause 4(c) or service completion acknowledgment receipt under clause 4(d) does not constitute acceptance of the Goods or the Services by Season's Best, and will not in any way affect the Supplier's liability under this clause 5.
(h) Clauses 5(e) and 5(f) do not limit or negate any other rights or remedies that Season's Best may have in law or under these Terms.
6. PRICE AND PAYMENT
(a) The price stated in the Purchase Order is in New Zealand dollars exclusive of any GST ("Price").
(b) Within 5 Working Days after the beginning of each month, the Supplier must issue to Season's Best a valid GST invoice for the Goods or Services provided in the previous month. The GST invoice must quote the relevant Purchase Order number(s) and meet the requirements under the GST Act.
(c) Subject to clause 6(d), Season's Best will pay each correctly rendered invoice by or on the last Working Day of the month following the date of the invoice.
(d) Season's Best will have no obligation to pay any disputed amounts to the Supplier. If Season's Best disputes any amount claimed in an invoice, then Season's Best will advise the Supplier in writing of the nature of the dispute. Season's Best will pay any undisputed portion of the invoice and withhold the disputed portion of the invoice. The Supplier will use all reasonable endeavours to provide Season's Best with all information Season's Best reasonably requires to verify the amount claimed in a disputed invoice. Any disputes in relation to an invoice will be resolved in accordance with clause 14.
(e) If any sum of money is recoverable from or payable by the Supplier to Season's Best, that sum may be deducted from any sum due, or which at any time may become due, from Season's Best to the Supplier.
7. INTELLECTUAL PROPERTY
(a) The Supplier must inform Season's Best if any intellectual property owned by a third party is used in the provision of the Goods or Services. The Supplier must ensure that Season's Best has all the necessary rights and documentation to enjoy the full benefits of the Goods or Services.
(b) The Supplier warrants to Season's Best that Season's Best's ownership (where intended), possession, use, modification or resale of any Goods or Services supplied by the Supplier will not infringe any third party rights. The Supplier indemnifies Season's Best against any liability, costs, fines, loss or damage Season's Best may incur by reason of any breach by the Supplier of the warranty in this clause.
(c) Season's Best retains all rights, interests and title in its intellectual property. The Supplier acknowledges that it does not have any right, interest or title to Season's Best's intellectual property and will not challenge the validity of Season's Best's intellectual property or take any action prejudicial to the intellectual property.
(d) If any new intellectual property is developed or created during, or as the purpose of, any delivery of Goods or Services by the Supplier to Season's Best, such intellectual property will deemed to be owned by Season's Best. If requested by Season's Best the Supplier will waive any rights it may have to the intellectual property and transfer every relevant proprietary interest or right in the intellectual property to Season's Best or its nominee.
8. INSURANCE
(a) The Supplier will effect and maintain appropriate insurances in respect of the Supplier's obligations under these Terms. The Supplier will provide evidence of such insurance to Season's Best upon demand. The Supplier will, if requested (at any time) by Season's Best, procure Season's Best's interest or interests to be noted directly on such policy or policies. The Supplier acknowledges that the taking out of insurance by it will not in any way limit or exclude its obligations to indemnify Season's Best pursuant to clause 13.
9. WARRANTIES
(a) The Supplier warrants that the Goods and/or Services:
(i) match the description (including any performance criteria) in the Purchase Order. If the Supplier gave Season's Best a sample of the Goods or the Services before it fulfilled the Purchase Order, the Goods must correspond with the sample in addition to matching the descriptions;
(ii) are delivered in compliance with all applicable requirements, Specifications and standards of Season's Best;
(iii) are of merchantable quality and adhere to any relevant Specifications unless specified otherwise in each case by Season's Best;
(iv) are free from any defects, fault or damage and are fit for the purpose intended by Season's Best;
(v) are compatible with the other goods and services available from the Supplier;
(vi) are supplied to Season's Best using all diligence, care and skill and using sufficient appropriately trained, qualified, experienced and supervised persons;
(vii) satisfy the requirements of Season's Best as notified to the Supplier; and
(viii) comply with all applicable legal, regulatory and industry standards and any quality assurance system approved or required by Season's Best.
(b) The Supplier further warrants:
(i) that it has the right to sell the Goods specified in the Purchase Order;
(ii) the Goods will be free of any liens, security interests or other encumbrances; and
(iii) that it has all necessary permits, licenses or consents to supply the Goods or perform the Services.
(c) The warranties given by the Supplier under this clause 9 will be deemed to be repeated continually throughout the parties' relationship. The warranties will survive inspection, testing and acceptance of the Goods or Services by Season's Best.
(d) The Supplier will, to the extent possible, pass on to Season's Best the benefit of any warranty or guarantee received from any other person in respect of Goods or Services supplied, so that Season's Best may have recourse against those persons in the event any of those Goods or Services do not comply with the applicable warranty.
10. PRODUCT RECALL
(a) The Supplier will notify Season's Best immediately if:
(i) the Supplier receives a notice of regulatory non-compliance or is the subject of any governmental or regulatory action which affects or may affect the Goods or the supply of the Goods; or
(ii) the Supplier initiates a voluntary recall of the Goods.
(b) If, for any reason, a recall of the Goods is required, then all costs related to that recall will be borne by the Supplier.
11. CONFIDENTIALITY
(a) The Supplier acknowledges that from time to time it may have access to certain information (whether written or oral) relating to the business of Season's Best or the operations of Season's Best and which is not generally known to the public, including customer lists, commercially sensitive methods and know how, and trade secrets ("Confidential Information"). The Supplier agrees and undertakes to Season's Best that neither the Supplier nor its employees, agents and subcontractors will disclose any of Season's Best's Confidential Information to any third party or use Season's Best's Confidential Information for the Supplier's own benefit or for the benefit of any other person or in any way exploit Season's Best's Confidential Information, without the prior written consent of Season's Best.
(b) Disclosure and use of Confidential Information by a party is allowed to the extent required by law or to the extent necessary to supply the Goods or perform the Services as specified in the Purchase Order.
(c) Upon the request of Season's Best, the Supplier will stop using and destroy or return to Season's Best any Season's Best property and/or information which it has in its possession.
12. PUBLICITY
(a) The Supplier shall not use its relationship with Season's Best for means of publicity in any form without the express permission of Season's Best.
13. LIABILITY
(a) To the extent permitted by law, the Supplier will indemnify, keep indemnified and hold harmless Season's Best, its employees, agents and contractors (each, an "Indemnified Party") from and against all losses, damages, liabilities, claims, actions, proceedings, legal fees (on a solicitor-client basis) and costs of any kind suffered or incurred by any Indemnified Party arising from or in connection with:
(i) Any breach of these Terms by the Supplier;
(ii) Any recall;
(iii) Any claim made against Season's Best under the Consumer Guarantees Act 1993 (to the extent that the claim is not the result of Season's Best's breach of the Consumer Guarantees Act);
(iv) Any damage to Season's Best's property or a third party's property or personal injury caused by the Supplier or its employees, agents or subcontractors;
(v) Any negligent or wrongful act or omission of the Supplier or any of its employees, agents or contractors in the course of or related to the performance of, or failure to perform, any obligations of the Supplier under these Terms; or
(vi) Any fraud, dishonesty, misrepresentation or wilful default of the Supplier.
(b) Under no circumstances will Season's Best be liable to the Supplier for any loss of income or profits, special damage or injury or any kind, or any consequential or indirect loss or damage suffered by the Supplier or any other person.
14. DISPUTE RESOLUTION
(a) If a party believes that there is a dispute in relation to these Terms, it will first notify the other party in writing giving details of the dispute. The dispute will then be promptly referred to a senior representative of each party for resolution (who may use mediation to assist). Pending resolution of the dispute, both parties shall continue to perform all of their respective obligations under these terms. If the dispute remains unresolved 20 Working Days after the meeting of senior representatives referred to above then the dispute shall be referred to the arbitration of a single arbitrator to be appointed by the parties or failing agreement to be appointed by the President of the New Zealand Law Society. Such arbitration shall be carried out in accordance with the provisions of the Arbitration Act 1996.
(b) Nothing in these Terms prevent Season's Best from taking immediate action for urgent interlocutory relief.
15. TERMINATION AND SUSPENSION OF PURCHASE ORDERS
(a) Season's Best may cancel or suspend a Purchase Order (or any part of a Purchase Order) if:
(i) The Supplier breaches any provision in any Purchase Order or these Terms;
(ii) The Supplier has a receiver, liquidator, administrator, manager or mortgagee take possession of or be appointed with respect to all or any part of its business assets or undertaking;
(iii) The Supplier makes an assignment for the benefit of creditors, or enters into any general arrangements or composition with or for the benefit of its creditors;
(iv) The Supplier undergoes a direct or indirect change of control without the prior written consent of Season's Best; or
(v) The Supplier is prevented from performing the Purchase Order for a period of 10 Working Days (whether consecutive or otherwise) due to a Force Majeure Event.
(b) Termination or suspension of a Purchase Order is without prejudice to Season's Best's rights and obligations accrued up to and including the date of the termination or suspension.
(c) In the event that a Purchase Order is fully or partially cancelled or suspended, and without prejudice to any other rights or remedies Season's Best may have in law, under these Terms or in equity, the Supplier must reimburse Season's Best for any costs incurred as a consequence of such cancellation or suspension, including storage costs and loss of profits.
16. FORCE MAJEURE
(a) Non-performance by either party of any of its obligations under these Terms or a Purchase Order will be excused, without liability for non-performance, during the time and to the extent that the performance is prevented, wholly or substantially by a Force Majeure Event, provided that:
(i) The affected party gives the other party written notice within 1 Working Day after becoming aware of, or likelihood of, the Force Majeure Event, and providing details of the nature, expected duration and effect of the Force Majeure Event;
(ii) The affected party keeps the other party informed of any changes to the Force Majeure Event, including its cessation; and
(iii) The affected party, at its own cost, uses reasonable endeavours to mitigate the effects of the Force Majeure Event and, where reasonably practicable, continue to perform its obligations under these Terms and the relevant Purchase Order.
(b) Performance of any obligation affected by the Force Majeure Event will be resumed as soon as reasonably possible after the termination or abatement of the Force Majeure Event. The obligations of the other party will remain suspended so long as the affected party cannot perform its obligations under these Terms due to the Force Majeure Event.
17. NOTICES
(a) Notices must be in writing and sent to the recipient at the addresses set out in Purchase Order. If no address is specified in the Purchase Order, then the party's registered office address will be used.
(b) Notices are deemed delivered 10 Working Days after posting (if posted), upon receipt by an employee (if hand delivered), or upon confirmation of successful transmission (if sent by email). A notice received after 5pm on a Working Day or on a day that is not a Working Day will be considered to be received on the next Working Day.
18. GENERAL PROVISIONS
(a) Amendments: Subject to any express clause in these Terms or the Purchase Order, no amendment to these Terms is effective unless it is in writing and signed by both parties.
(b) Relationship: Nothing within the Purchase Order or these Terms will create any relationship of employment, agency, partnership or joint venture between Season's Best and the Supplier.
(c) Assignment: The Supplier shall not novate, assign, transfer or subcontract any right or obligation arising out of these Terms or a Purchase Order ("Assignment") without obtaining the prior written consent of Season's Best. Notwithstanding any consent given by Season's Best for an Assignment, the Supplier will remain principally liable to Season's Best and the Supplier will not be relieved of any of its responsibilities under the Purchase Order or these Terms.
(d) Express Rights: The exercise by a party of an express right set out in these Terms is without prejudice to any other rights, powers or remedies available to that party in contract, at law or in equity.
(e) Law: New Zealand law governs these Terms and all Purchase Orders between the parties. The United Nations Convention on Contracts for the International Sale of Goods is excluded.
(f) Severability: In the event that any part or provision of these Terms is held to be invalid, illegal or unenforceable for any reason, such part or provision shall be deemed to be deleted from these Terms and the remainder of these Terms shall continue in full force and effect.
(g) Time: Stipulations as to time for performance by the Supplier in a Purchase Order are of the essence and essential terms of that Purchase Order. Stipulations as to time for performance by Season's Best in a Purchase Order are not of the essence and are not essential terms of any Purchase Order.
(h) Waiver: A failure, delay or indulgence by any party in exercising any power or rights will not operate as a waiver of that power or right.
(i) Set-Off: If Season's Best is owed money by the Supplier under or in respect of these Terms or a Purchase Order, or has incurred or can reasonably demonstrate that Season's Best will incur costs or expenses arising from a breach by the Supplier of its obligations under these Terms or a Purchase Order, then the Supplier authorizes Season's Best to set-off the amount of moneys owed or the amount of such costs or expenses against any debt or liability of Season's Best to the Supplier.
(j) Precedence: If there is any conflict between a provision in these Terms and a provision in the Purchase Order, then the provision in the Purchase Order prevails to the extent of the inconsistency. In the event of any inconsistency between these Season's Best Purchase Terms and Conditions and a Supplier's terms and conditions, these Season's Best Purchase Terms and Conditions shall prevail.