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TERMS AND CONDITIONS AGREEMENT

NEW ZEALAND

 

  1. The supply of any products (“product”) by SUNSHADES EYEWEAR LIMITED (“SUNSHADES”) to the purchaser is subject to these terms and conditions of sale (“these terms”), with no modifications or additions, unless specifically agreed to in writing by an authorised employee of SUNSHADES.

 

  1. The failure of SUNSHADES to object to a matter in conflict with these terms which is contained in any order or communication from a purchaser shall not be construed as acceptance or waiver of these terms.

 

  1. ALL ORDERS ARE SUBJECT TO CREDIT APPROVAL AND NO ORDER IS BINDING UNTIL CONFIRMED IN WRITING BY SUNSHADES’ AUTHORISED PERSONNEL.  ORDERS MAY BE DECLINED BY SUNSHADES WITHOUT CAUSE OR LIABILITY.  REFUNDS AND CREDITS ARE SUBJECT TO THE GRANT OF AN AUTHORISATION NUMBER.

 

Pricing and Orders

 

  1. The purchaser may place written orders with SUNSHADES which otherwise reserves the right to receive verbal orders at its sole discretion.  All orders must specify the type and quantity of products to be delivered, the place of delivery and the required delivery date.

 

  1. Prices are subject to change without notice.  In particular, SUNSHADES reserve the right to increase any price to compensate for any loss incurred as a result of currency movements in the cost of goods and services supplied to it between order and delivery.

 

  1. All new prices are effective as at the date of the last price list issued by SUNSHADES and will apply to all product shipped ex-works or SUNSHADES’ warehouse after that date unless specifically exempted by a program issued by SUNSHADES.

 

  1. If SUNSHADES is unable to obtain production of product in sufficient quantity to meet a specified order, SUNSHADES may (at its option) fill the order in proportion to the quantity actually produced or cancel the order by giving written notice to the purchaser, without the purchaser being entitled to compensation for such reduction or cancellation.

 

  1. SUNSHADES reserve the right to cancel any order and/or to discontinue supply of product if:

(a) The purchaser does not comply with these terms or with the terms of any credit agreed with SUNSHADES; or

 

(b) SUNSHADES is unable for any reason outside its control to manufacture a particular style contained in the order.

 

Payments

 

  1. All orders must be paid for in advance unless credit has been previously approved by SUNSHADES.  Payments must be made in New Zealand currency by cash, bank cheque, or direct deposit unless otherwise agreed by SUNSHADES.  If SUNSHADES agree to payment by company or personal cheque, the product may not be dispatched until the cheque has been cleared which can take up to 10 working days. The purchaser will pay any bank or other charges incurred by SUNSHADES for any dishonoured cheque.

 

  1. The purchaser will be entitled to a prompt payment discount of 5% of the invoiced sale price (excluding GST, freight, insurance, any other taxes etc) if full payment of the invoice is received by SUNSHADES within 7 days of the invoice date and if no other payment from the purchaser for other product is overdue.

 

  1. All invoices are payable within 30 days from the date of the month in which the invoice was issued by SUNSHADES to the purchaser, without any set-off for any credit or other amount payable to the purchaser for any reason.

 

  1. The purchaser will pay interest at 14% on any overdue amount, from due date until the date of actual payment.

 

  1. The purchaser will pay on demand any collection costs, actual legal fees and disbursements, and any other costs incurred by SUNSHADES as a result of the purchaser’s failure to pay or any other default under these terms.

 

Risk and ownership

 

  1. The purchaser shall assume the full risk of loss of or damage to the product immediately upon delivery.

 

  1. The supply and/or delivery of product to the purchaser is subject to the express condition that ownership of the product is reserved to SUNSHADES and that the legal and equitable title to the property in the product shall not pass to the purchaser unless and until payment in full is made for all product supplied and/or delivered to the purchaser and the current account between SUNSHADES and the purchaser has been closed (notwithstanding any claimed improvement, repackaging or other step taken by the purchaser in respect of the product).  If any of the product is sold by the purchaser prior to payment thereof to SUNSHADES then the proceeds of sale of the product shall be the property of SUNSHADES and the purchaser shall not receive the proceeds for its own account but shall account for the proceeds to SUNSHADES as a fiduciary or trustee and shall at all times keep any such payment separate from the purchaser’s own money in a separate trust account.  The purchaser hereby assigns irrevocably to SUNSHADES the purchaser’s right of payment in respect of any of the product from any third party.

 

  1. Until the product is sold by the purchaser, or until property in the product has passed to the purchaser, the purchaser shall: –

 

(a)           Clearly designate all product as SUNSHADES’ property and store the product in such a way that it is clearly identified as the property of SUNSHADES;

 

(b)            Keep full and complete records of the physical location of the product from time to time and of SUNSHADES’ ownership of the product.

 

  1. So long as any monies are owing by the purchaser to SUNSHADES for any product, SUNSHADES shall be entitled, at any time and for any reason, to recover and retake possession of the product and otherwise exercise all its rights as owner and/or unpaid seller or otherwise and the purchaser hereby irrevocably authorises and licenses SUNSHADES and its servants and agents to enter the land or buildings of the purchaser or any third party at or in which the product is located for the purpose of inspecting the product and/or ensuring due compliance by the purchaser with these terms and/or repossessing the product.

 

  1. Production of a copy of these terms shall constitute sufficient evidence of SUNSHADES’ authority to enter any such premises and to remove the product at its discretion.

 

  1. If any question arises as to the ownership of product the onus should be on the purchaser to prove that ownership has passed to it in respect of that product.  All product in the purchaser’s possession shall be deemed to belong to SUNSHADES unless the purchaser can prove otherwise.

 

  1. If SUNSHADES exercise its rights to repossess product, then the exercise of those rights will be without prejudice to any other rights or remedies which SUNSHADES may have against the purchaser or any other party in respect of the product.

 

  1. The purchaser acknowledges that these terms constitute a security agreement and hereby grants to SUNSHADES a security interest in all product which has not been paid for in full in accordance with these terms.  The parties hereby expressly contract out of Sections 109(1), 114(1)(a) and the purchaser’s rights referred to in Sections 107(2)(c), (d), (h) and (i) of the Personal Property Securities Act 1999 (“PPSA”).  The purchaser waives its right to receive a copy of any verification statement in respect of any financing statement relating to any security interest granted to SUNSHADES by the purchaser.

 

  1. The officers and management of the purchaser hereby undertake that they will take all necessary steps to secure compliance by the purchaser with the provisions of these terms including any information necessary to enable SUNSHADES to perfect and maintain the perfection of any security interest granted to SUNSHADES by the purchaser (including by registration of a financing statement).

 

  1. The purchaser agrees to indemnify SUNSHADES upon demand for all costs and expenses including legal fees incurred by SUNSHADES as a result of the actual or attempted enforcement of any security interest granted to SUNSHADES by the purchaser and in complying with any demand made under Section 162 of the PPSA.

 

Delivery

 

  1. All shipments are ex-works or SUNSHADES warehouse.  SUNSHADES will arrange delivery to a place nominated by the purchaser.  The purchaser will pay the costs of delivery as invoiced by SUNSHADES.

 

  1. The purchaser must file with SUNSHADES a claim for missing product within 7 days after receipt of shipment.

 

  1. SUNSHADES shall not be responsible for any claim, loss or damage resulting from any delay in delivery for any reason whatsoever (including default of SUNSHADES).

 

Returns

 

  1. SUNSHADES’ policy is to accept return of product only when there has been an error by SUNSHADES as evidenced by the original packing list and confirmed by the return product (such as for duplicate order, mis-shipment, defective or damaged product where the defect or damage has been caused by SUNSHADES).

 

  1. The purchaser must file with SUNSHADES a claim for such a return within 7 days of receipt of shipment.

 

  1. All return of product must be:

 

(a)           Sent to [nominate NZ address];

 

(b)           Approved by and with an authorisation number from SUNSHADES marked on the outside of the product before return to SUNSHADES;

 

(c)            Accompanied by the invoice number under which the product was shipped;

 

(d)           Shipped freight prepaid unless otherwise agreed by SUNSHADES.  Unauthorised and freight collect return of product will be rejected and returned to the purchaser and the return freight and all other costs will be charged to the purchaser;

 

(e)           In saleable condition including packaging upon delivery to SUNSHADES.

 

  1. All approved returns will be credited to the purchaser including the original discount terms, and any product replaced from stock at SUNSHADES’ discretion.

 

  1. SUNSHADES have the right to refuse any product returned which is damaged through improper packing or improper display methods.

 

  1. The purchaser may not return any product supplied as discontinued lines, seconds or discontinued sales.

 

Limitation of liability

 

  1. Where any condition, warranty or liability is implied by law and to the fullest extent permitted by law, the liability of SUNSHADES is limited at its option to any one or more of the following:

 

(a)            The replacement of the product or the supply of equivalent product;

 

(b)            The repair of the product;

 

(c)            The payment of the cost of replacing the product or of acquiring equivalent product;

 

(d)            The payment of the cost of repair of the product.

 

  1. SUNSHADES will not be liable for any failure to perform which results from government or territorial authority regulation or requirement, strike, lockout or any other industrial dispute, accident, fire, delay in manufacture or transportation, act of God, or any other cause beyond the control of SUNSHADES.

 

Intellectual property

 

  1. SUNSHADES is the owner and/or licensee of trademark, copyright, design and other intellectual property rights in the products (“IP rights”).  The purchaser acknowledges that it has no right or interest in any of the IP rights and it will not use or deal with SUNSHADES’ products or the IP rights other than by selling or promoting the sale of the products in a way which does not damage the image of reputation of SUNSHADES or its products.

 

  1. If the purchaser defaults under any of these terms or under any terms of credit the purchaser must, if requested by SUNSHADES at any time:

 

(a)           Immediately stop marketing and selling SUNSHADES’ products;

 

(b)           Immediately stop displaying or using any material (including packaging, point of sale and advertising material) containing any IP rights, and destroy or return that material as directed by SUNSHADES;

 

(c)            Give SUNSHADES a detailed inventory of all SUNSHADES products in its possession or control, within 3 days of request;

 

(d)           Return to SUNSHADES (at the purchaser’s expense) any SUNSHADES’ product not paid for;

 

(e)           Sell and deliver to SUNSHADES or its nominee any other SUNSHADES’ products as nominated by SUNSHADES for the price at which the products were sold to the purchaser less an allowance for any wear or damage to the product.

 

General

 

  1. The purchaser may not export the product from New Zealand or resell the products to a third party for sale or delivery outside New Zealand, without the prior written consent of SUNSHADES.

 

  1. These terms may be added to, varied or updated bySUNSHADES from time to time by reasonable notice in writing to the purchaser.

 

  1. These terms are governed by the laws of New Zealand and both SUNSHADES and the purchaser submit to the non-exclusive jurisdiction of the courts of New Zealand.

 

(for credit application]

 

I/We the undersigned apply to SUNSHADES to open a trading account and submit the following information in respect of our business.

 

I/we acknowledge that if this application is accepted all products will be supplied upon the terms set out in the annexed terms & conditions of sale, which may be added, varied or updated by you.

 

Pursuant to section 6 of the Privacy Act 1993 I/we authorise SUNSHADES to collect information from any credit referees provided by me/us and to supply to appropriate credit agencies and credit organisations to which SUNSHADES belongs all such information supplied in SUNSHADES’ application and also relating to its management of its credit account, and in the event of breach of SUNSHADES’ terms & conditions of sale, further authorise SUNSHADES to collect such further information as SUNSHADES shall deem necessary for the enforcement of those terms & conditions of sale and to that extent authorise the release of information to SUNSHADES by all parties holding the same for these purposes.

 

SUNSHADES shall be entitled to require from the purchaser, at any time and for any reason, security (including, but not limited to, personal guarantee) for the further supply of product to, or for any payment outstanding from, the purchaser.