Terms of Trade
1. Definitions
1.1. “Contract” means this agreement to supply Goods to the Customer, including Canary’s issue of a purchase order confirmation to the Customer or the Customer’s acceptance of a sales quotation from Canary.
1.2. “Customer” means the Customer named in any Contract with Canary. If more than one person, the obligations upon the Customer in these Terms apply to all such persons, jointly and severally.
1.3. “Goods” means the goods that are the subject of a Contract, including accepted specifications and packaging requirements.
1.4. “PPSA” means the Personal Property Securities Act 1999.
1.5. “POC” means Canary’s Purchase Order Confirmation, a written confirmation of the Customer’s order, further described in clause 5.1.
1.6. “Terms” means these Terms of Trade.
1.7. “Canary” means Canary Enterprises Limited trading as Canary Foods, of 56 Livingstone Street, Hokitika, New Zealand.
2. General
2.1. All sales by Canary to the Customer are subject to these Terms. Unless Canary stipulates otherwise in writing, these Terms supersede and override any other terms and conditions which may contradict them, including any terms on the Customer’s purchase order form. The Customer’s receipt of the Goods, or acceptance of, will constitute its acceptance of these Terms. Any variation of these Terms must be agreed and in writing.
2.2. These Terms incorporate, and should be read with, any appendices attached. Likewise, if attached to another document, these Terms will be deemed a part of such other document.
3. Price
3.1. The Customer must pay the Price and GST (if any) to Canary for the Goods in accordance with the POC.
3.2. Unless otherwise stated, prices do not include applicable taxes, duties, freight, and insurance.
4. Payment
4.1. Canary requires payment, or security for payment to be agreed before delivery or loading for shipment.
4.2. The payment terms and any security requirements for each order will be set out in the applicable POC, which will take precedence over all other terms.
4.3. The Customer must make payment by bank transfer to the bank account nominated by Canary. Late payments will bear interest at the New Zealand 90-day bank bill rate plus 5% p.a. calculated from due date to actual date of payment.
4.4. The Customer may not withhold payment, make deductions or apply off sets without Canary’s prior written consent.
4.5. If the Customer disputes a charge on an invoice, it must file a claim for credit with Canary. The Customer must furnish Canary with all relevant information to enable Canary to evaluate such claim. Canary will issue a credit to the Customer if Canary accepts the claim. If Canary does not accept the claim, then (a) the undisputed portion of that tax invoice will remain payable on the relevant due date, determined in accordance with this Contract; and (b) the Customer will not be obliged to pay the disputed portion of the Tax Invoice until the dispute has been resolved by agreement between the parties or, in the absence of such agreement being reached within 10 working days after the dispute is first notified pursuant to this clause, until the dispute is finally determined.
4.6. If the Customer does not make payment in accordance with this Contract, then Canary may (in addition to all other rights and remedies that it may have at law): (a) cancel the Contract and any unfulfilled or future orders by the Customer; and/or (b) treat all sums due under the Contract (along with any other sums that may be due to Canary) as a liquidated debt immediately payable at law; and/or (c) institute proceedings for the immediate recovery of all sums due to Canary, by statutory demand, litigation, or otherwise; and/or (d) recover all of the costs incurred in exercising the above rights until payment is made, or Goods recovered, or both.
5. Purchase Order Confirmation
5.1. Where Canary receives a Customer’s purchase order, it may issue a POC, which may require the Customer to confirm and agree to these Terms in writing.
5.2. Canary will make all reasonable efforts to deliver all Goods on time and as per the POC. Dates specified for delivery are best estimates and cannot be guaranteed.
5.3. Due to packing and shipping operations the quantities of Goods delivered may vary from the precise quantities stated in the POC. The Customer agrees to accept delivery of, and pay for that quantity of Goods actually delivered within a variance of plus or minus 5% of the POC.
6. Shipping
6.1. The shipping or delivery terms for each order will be set out in the applicable POC. Canary will have the right to inspect the Customer’s marine insurance where the Customer makes its own freight and insurance arrangements.
6.2. The rights and obligations of Canary and the Customer for any shipping and delivery will be as stated in Incoterms 2020, which the parties hereby incorporate by this reference. Risk of loss or damage to the Goods will pass from Canary to the Customer in accordance with the relevant Incoterms 2020.
7. Packaging
The Customer must inform Canary of any special packaging and labelling requirements at the time that the Customer places its order. Unless specified in the POC, Canary will use its standard packaging and labelling, as detailed, in the product specifications.
8. Delays
8.1. Upon the Customer’s request, Canary may agree to delay the shipment of an order. Canary may also delay the shipment of an order pursuant to clause 4.1 or clause 4.2. If Canary holds the Goods for more than 30 days in such circumstances, the Customer agrees to pay all reasonable costs as determined by Canary to cover storage costs, inventory financing charges, container charges, insurance, the cost of preparing new export documentation, and such other charges incurred by Canary and related to the Goods. If such delay continues for more than 60 days, Canary may, in its discretion, and without prejudice, to its other rights, cancel the Contract.
9. Force Majeure
9.1. Canary will not be liable for any failure or delay in delivery resulting from circumstances beyond its direct and reasonable control. Without limitation, such circumstances include: delays or failures by suppliers; refusal or failure by suppliers to provide sufficient supplies of raw milk for production; unavoidable delays in production; delays caused by seasonal factors affecting supply and/or raw milk production; shortages of raw materials; processing difficulties; delays or failures by the Customer; strikes and labour unrest; shipping delays; delays in procuring any reasonably required import/export documentation; acts of war; acts of terrorism; government action; fire; flood; regional weather events affecting production or supply chains; accident; natural disaster; pandemic; and/or any other event commonly referred to as an "Act of God".
9.2. If Canary invokes force majeure, then: (a) Insofar as the circumstances permit, Canary will take reasonable steps to end the circumstances causing the force majeure and to mitigate any losses; and (b) Canary will be entitled to cancel and terminate any order for Goods in whole or part, and, in that event, then neither party will be liable to the other for any losses incurred.
10. Cancellation
10.1. Canary may cancel a Customer’s order if: (a) the Customer breaches any provision in the Contract; or (b) the Customer breaches any provision in these Terms; or (c) the Customer seeks relief under any insolvency or bankruptcy law.
10.2. If the order is cancelled, whether pursuant to clause 8.1 or clause 10.1, the Customer agrees to reimburse Canary for any direct costs incurred as a consequence thereof, including packaging and repackaging costs, storage costs, financing costs, and any diminution in the price of the Goods due to price movements.
11. Retention of Title and Security
11.1. The Customer acknowledges that the purpose of this clause is to protect Canary if the Customer commits or suffers an act of insolvency or default in payment. Canary retains title to the Goods, pending receipt of payment, to the maximum extent permitted by law. Notwithstanding such retention of title until receipt of payment in full, the Customer will be responsible for risk of loss or damage to the Goods according to the relevant shipping terms. Canary reserves all rights and remedies it may have under applicable law to recover the Goods sold and delivered to the Customer if the Customer does not pay for such Goods by the payment due date. This includes the right to divert Goods on the water, or to enter the Customer’s premises and remove such Goods. Such rights are cumulative and not in substitution for any other rights that Canary may have in the circumstances.
11.2. In relation to purchases of Goods which are located in New Zealand, the Customer acknowledges that the retention of title in this Contract gives rise to a security interest (as defined under the PPSA) in all present and after acquired Goods, and all proceeds of such Goods, supplied by Canary to the Customer under these Terms to secure payment by the Customer.
11.3. The Customer undertakes to:
(a) promptly attend to requests, sign all documents and provide any information which Canary may reasonably require to enable Canary to perfect and maintain the perfection of its security interest (including by registering a financing statement);
(b) give Canary not less than 14 days’ prior written notice of any proposed change in its name and/or any other change of its details; and
(c) immediately on request by Canary (and at the Customer's expense) obtain from any third party such agreements and waivers of any security interest that third party has in respect of the Goods to ensure that Canary always has a first ranking security interest in the Goods.
11.4. The Customer waives its rights to receive a copy of any verification statements under the PPSA and agrees that, as between Canary and the Customer:
(a) the Customer will have no rights under (or by reference to) sections 114(1)(a), 116, 120(2), 121, 125, 126, 127, 129, 131, 133 and 134 of the PPSA; and
(b) where Canary has rights in addition to those in Part 9 of the PPSA, those rights will continue to apply.
12. Warranty
12.1. Canary warrants that the Goods will conform to their product specifications (including as to residual shelf life) at the time of shipment. Upon request, Canary will furnish the Customer a certificate of assay showing that the Goods conform to their product specifications.
12.2. The Customer must promptly inspect each shipment upon sight of the shipping documents or the ship’s arrival into port, whichever will be the later, and the following will apply: (a) The Customer’s right of reasonable inspection of each shipment must be exercised forthwith in accordance with this clause 12.2; and (b) The Customer must notify Canary within 14 days after sight of the shipping documents or the ship’s arrival into port, whichever will be the later, in the event that the Customer considers any Goods do not con- form to the product specifications.
12.3. If the Customer notifies Canary that it does not consider the Goods conform to their specification, whether by reason of defect, or quantum, or packaging damage, then: (a) The Customer must provide full details of any damage to Goods or packaging or failure to conform to specifications or quantity, and must assist Canary by providing such particulars, statements and access to the Goods as will enable Canary to investigate the subject matter of any notification; and (b) Canary may (but shall not be obliged to) accept any notification of failure or defect and issue a credit to the Customer for such quantum of the purchase price as it deems fit; or (c) Canary may reject a notification claim, and (d). If Canary accepts a claim, then the Customer must dispose of the Goods as Canary instructs.
12.4. If the parties do not agree how to resolve a warranty claim, Canary will refer the dispute to an independent testing laboratory in New Zealand to assist in resolving the claim. Any unresolved claim must be referred for dispute resolution under clause 18.
12.5. Canary’s warranty does not cover damage to the Goods occurring after risk of loss passes from Canary to the Customer. The Customer is responsible for proper storage, handling and insurance of the Goods in accordance with best industry practice.
12.6. The above warranty is in place of all other warranties, whether express or implied. Without limiting the generality of this clause 12.6, Canary does not warrant product efficacy, merchantability or fitness for a particular purpose. The Customer must determine the suitability of the Goods for its own use.
12.7. The Customer is solely liable for any representations or warranties that it may give to its customers.
13. Technical Advice
13.1. Where Canary gives technical advice, it does so to provide helpful suggestions only. Canary has not inquired, nor does it know, all the Customer’s unique circumstances to make a professional judgement. Canary assumes no obligation or liability for any technical advice so given. The Customer accepts such technical advice entirely at its own risk. The Customer must use its own judgement and not rely upon Canary’s.
13.2. Canary’s technical documentation may not be altered by the Customer for any purpose whatsoever without Canary’s prior written consent.
14. Compliance with Law
14.1. The Customer must comply with all applicable laws and regulations in the countries where the Customer intends to use or market the Goods, including all health and safety requirements, labelling requirements, registration and approval requirements, dating requirements, warranty requirements, truth in advertising requirements, and country of origin marking requirements.
14.2. At the time the Customer places its order, it must advise Canary of any such legal requirements to the extent they relate to the product specifications, manufacturing process, labelling, packaging, or export documentation in the Customer’s markets. Canary will use reasonable endeavours to comply with such requirements. Canary reserves the right to increase the price to cover the reasonable cost of complying with any such requirements.
14.3. Canary will not be responsible for failing to satisfy any such requirements unless the Customer advised Canary of such requirements, in writing, on or prior to the date of the Contract and these requirements are included in the POC.
15. Liability
15.1. Notwithstanding any other provision of these Terms, Canary is not liable to the Customer or to any other person for:
(a) any claims relating to the Goods other than a claim by the Customer that the Goods do not conform to their specifications at the time of shipment; or
(b) any loss caused by any factors beyond the reasonable control of Canary; or
(c) any failure to deliver the Goods by a specified date.
15.2. In the event Canary is held to be liable to the Customer for any matter arising under or in connection with these Terms, whether caused by negligence or otherwise, the total liability of Canary to the Customer will be limited to the total price received by Canary for the particular Goods to which the claim or liability relates.
15.3. The Customer must carry appropriate insurance against claims for which it assumes responsibility, including product liability insurance.
15.4. Neither party will be liable for indirect, special or consequential loss or damages or loss of profits.
15.5. The Customer acknowledges that it is acquiring the Goods for the purposes of a business or trade, in terms of section 43(2) of the Consumer Guarantees Act 1993 and will not assert or attempt to assert any rights or claims against Canary under the provisions of that Act.
15.6. The Parties further acknowledge that for the purposes of section 5D of the Fair Trading Act 1986 (FTA): the Goods are supplied and acquired in trade; that Parties are in trade; that sections 9, 12A, 13 and 14(1) of the FTA do not apply to these Terms and that it is fair and reasonable for the Parties to be bound by this clause.
16. Indemnity
16.1. The Customer agrees to indemnify, and hold Canary harmless, against any claims of whatever nature that arise from the Customer’s processing and/or marketing of the Goods, including without limitation: Claims arising from death or personal injury, false efficacy claims, breach of warranty claims and claims arising from health and safety violations.
16.2. The above indemnity will not apply in the event that the Goods do not conform to their specifications at the time of shipment.
16.3. The Customer agrees to further indemnify, and hold Canary harmless, against any claims of whatever nature that arise from Canary’s use of the Customer’s brands, artwork, packaging, formulations and specifications to produce the Goods.
17. Intellectual Property
17.1. For the purposes of these Terms, “Intellectual Property” means Canary’s proprietary interests in the Goods, whether arising under statutory or common law, including without limitation: Canary’s brands and trademarks; its patents and patent applications; know-how; specifications; manufacturing methods; formulations; research and development; quality control procedures; technical documentation; and trade secrets.
17.2 The Customer hereby:
(a) acknowledges Canary’s ownership of the Intellectual Property including technical advice given;
(b) disclaims any interest in the Intellectual Property;
(c) agrees not to challenge the validity of the Intellectual Property, and
(d) undertakes not to take any action prejudicial to the Intellectual Property.
18. Dispute Resolution
The parties will endeavour to resolve any dispute between them. If a party believes it has a dispute, it will promptly notify the other party in writing with details of the dispute. Each party must appoint a senior representative with a view to resolving the dispute. If despite their good faith efforts, the parties cannot reach a resolution within 15 working days, then either party may pursue its remedies available at law. Nothing in this clause 18 will prevent a party from applying for urgent interim relief from a court of competent jurisdiction.
19. Privacy
Canary will only collect, use, disclose and retain any personal information in connection with these Terms as is reasonably necessary for the purposes of giving effect to the Contract. Canary and the Customer agree to comply with relevant privacy laws in respect of any personal information collected in connection with these Terms, any shipments and any future similar arrangements. Canary may disclose that information within its organisation and to other parties performing the Contract.
20. Governing Law
New Zealand law will govern all transactions between the Customer and Canary. The Customer submits to the jurisdiction of New Zealand courts.
21. Waiver
No failure by a party to insist upon strict performance of the Contract, including any of these Terms, or delay in exercising any of its rights or remedies, will constitute a waiver or variation of the Contract or any such right or remedy.
22. Assignment
22.1 The Customer may not transfer its rights or obligations under any Contract without Canary’s consent, which will not be unreasonably withheld.
22.2 Canary will have the right to assign its rights under any Contract without the consent of the Customer.
23. Validity
23.1 If any clause in these Terms is invalid or unenforceable under the laws of the relevant jurisdiction, such clause will be amended, but only to the extent necessary to make it valid and enforceable under such laws. If amendment is not possible, such clause will be stricken from these Terms. However, the balance of these Terms will continue in full force and effect.
23.2 Canary reserves the right to change these Terms. Canary will notify the Customer of any such changes whereupon they will apply to all subsequent orders. The current Terms will be reflected on www.westland.co.nz