INTERNATIONAL TERMS OF TRADE
The following terms will be incorporated into each purchase order (“PO”) and form part of the agreement entered into between the customer (“Customer”) AND Manuka Health New Zealand Limited (“MHNZ”) for the supply and purchase of MHNZ’s manuka honey and bee related products (“Agreement”). If there is any conflict between these terms and any relevant PO, the PO will prevail to the extent of the inconsistency.
1. Agreement, Price and Ordering
1.1. MHNZ agrees to sell and the Customer agrees to buy MHNZ’s honey, honey-based products and other products (“Products”) as set out in in the relevant PO at the price specified and provided to the Customer by MHNZ (“Price”).
1.2 The Customer agrees that all Prices are:
a. in New Zealand Dollars;
b. exclusive of GST, other taxes and duties which may be applicable and any insurance, freight and handling charges. Such taxes and charges will be invoiced and paid in addition to the Price;
c. FAS Auckland (Incoterms 2020); and
d. subject to the correct specifications (if any and as applicable) having been provided by the Customer.
1.3 The Customer must submit a PO for all orders of the Products. MHNZ will not be bound by any PO (and is not obliged to accept any such PO) submitted by the Customer and no PO will be legally binding unless and until the PO has been confirmed in writing by MHNZ or MHNZ has delivered the PO provided however that upon such confirmation by MHNZ, each PO will constitute a binding agreement of MHNZ to sell and deliver, and of the Customer to purchase and pay for, the Products specified under the terms and conditions of this Agreement.
1.4 The Customer cannot cancel any PO which has been accepted by MHNZ unless it has MHNZ’s written consent to do so and the Customer indemnifies MHNZ in full against any and all losses, costs, damages, charges and expenses suffered or incurred by MHNZ as a result of such cancellation.
2. Payment
2.1 Unless otherwise specified in writing by an authorised officer of MHNZ, payment will be made as follows:
a. full payment will be due prior to the Products leaving MHNZ's premises; or
b. where credit terms have been approved in writing by MHNZ (in MHNZ’s absolute discretion and which may be amended by MHNZ from time to time), in accordance with such credit terms.
The method of payment by the Customer for the Products will be at the sole discretion of MHNZ.
2.2 The time for payment within which the Customer is to pay for the Products is an essential term of this Agreement.
2.3. Credit card payments will be subject to a surcharge of 2.75%.
3. Interest and costs on overdue accounts
3.1 If the Customer fails to make a payment due under this Agreement by the due date, without prejudice to any other rights or remedies of MHNZ under this Agreement or under law, MHNZ may (at MHNZ’s sole discretion):
a. charge interest on all overdue accounts at a rate of 10.0% per annum calculated on a daily basis from the due date until it is all received in full by MHNZ, whether before or after judgment. Any payments received by MHNZ will be applied firstly against such interest;
b. seek reimbursement from the Customer for any legal costs (as between solicitor and client), any debt collection fees and any other costs or expenses incurred in the recovery of an overdue debt; and
c. suspend further delivery of any Products until all payments have been made.
4. Delivery
4. 1 The Products will be deemed to have been delivered to the Customer at the time they are delivered to the port for shipping.
4. 2 Freight terms are FAS Auckland and are the responsibility of the Customer.
4.3 The Customer agrees to export the Products from New Zealand within 2 weeks of this arriving in port, or these Products will be subject to New Zealand GST.
5. Risk and ownership
5. 1 On delivery of the Products by MHNZ to the shipping or airport for departure, the Customer will take responsibility for the Products and will carry the full risk of liability with no recourse to MHNZ.
5. 2 MHNZ retains ownership of the Products until the Customer has paid the full Price for the Products and all other monies owing by the Customer to MHNZ.
5.3 The Customer acknowledges that it is in possession of the Products solely as bailee for MHNZ and will not part with possession of the Products until full payment for the Products and all monies owing to MHNZ by the Customer have been made. The Customer will hold any proceeds of sale of the Products not yet paid for in trust for MHNZ.
5.4 The Customer will store the Products in such a way that it is clear that they are the property of MHNZ.
5.5 The Customer agrees that MHNZ, its agents and representatives may enter (without the need to give notice) and are authorised where necessary, to break into the premises where the Customer is or may be storing the Products for the purpose of MHNZ‘s inspecting and/or removing such Products.
6. Brand guidelines
6.1 The Customer acknowledges that as a condition of purchase of the Products, the Customer must comply with MHNZ’s brand guidelines (including the terms of any Authorised Reseller Programme MHNZ introduces), with the aim of maintaining and improving the goodwill, integrity and prestige of MHNZ’s brand, the Products and MHNZ’s trade marks. As the Products are high quality and high value goods, the Customer will communicate the qualitative and functional features of the Products when they are marketing and advertising the Products to consumers for sale. These features will be specified by MHNZ according to the applicable Product group and distribution channel.
6.2 The Customer acknowledges that if MHNZ introduces a selective distribution system in the Customer’s country for any of the Products, the Customer may only purchase the Products from MHNZ if it becomes an authorised member of that selective distribution system by signing MHNZ’s selective distribution agreement when requested.
7. Warranty and Product recall
7.1 MHNZ warrants that it will repair or make good any defects in the Products brought to its notice within 10 business days after delivery of the Products to the Customer. If written notice is not received by MHNZ within 10 business days, the claim will be waived and the Products delivered will be deemed to conform to the PO and to be unconditionally accepted by the Customer. No claim will be accepted if the defective Products have been stored, maintained or handled incorrectly or in a way which does not comply with the terms of this Agreement.
7.2 MHNZ’s liability in respect of any claim, liability, loss or damage against, of or to the Customer that may arise out of any breach of the warranty in clause 7.1 will be limited to correcting the defects in the Product. Any right to make a claim against MHNZ under clause 7.1 will lapse if the Customer accepts delivery of the Products.
7.3 The Customer will, at the request of MHNZ or in case MHNZ is the subject of a request, court order or other directive of a governmental or regulatory authority to withdraw any Products from the market ("Recall Notice") and use all reasonable endeavours at its own cost to assist MHNZ in locating and recalling any Products.
7.4 Unless required by law, the Customer will not initiate any recall or withdrawal without the written permission of MHNZ and only then in strict compliance with MHNZ’s instructions about the process of implementing the recall or withdrawal.
7.5 If the Customer acquires the Products for business purposes, the Customer agrees that the provisions of the Consumer Guarantees Act 1993 (NZ) are excluded and do not apply (to the extent permitted by law).
8. Limitation and exclusion of liability
8.1 MHNZ makes no warranty, express or implied, in relation to the Products other than that the Products being of merchantable quality and otherwise as required as a legal minimum under applicable New Zealand laws and regulations. To the extent permitted by law, MHNZ will be under no liability whatsoever to the Customer for any indirect, special, incidental, consequential, economic, loss of profits, exemplary damages or losses suffered by the Customer arising out of this Agreement, whether actionable in contract, tort (including negligence), equity or otherwise.
8.2 If MHNZ is found liable, MHNZ’s liability in aggregate will not exceed the total sum payable by the Customer to MHNZ under the relevant PO.
8.3 The Customer agrees that the limitations and exclusions set out in this Agreement are reasonable having regard to all the circumstances.
9. Indemnity
9.1 The Customer will indemnify MHNZ against all and any claims, actions, damages, loss, liability, costs (including legal costs on a solicitor-client basis), charge, expense, outgoing or payment which MHNZ may suffer, incur or become liable for in connection with any breach of the Customer of its obligations under this Agreement or any acts or omissions of the Customer in using any of the Products provided by MHNZ under this Agreement.
10. Intellectual property
10.1 The Customer acknowledges that MHNZ is the owner of the intellectual property rights in the Products, and such intellectual property will at all times during the term of this Agreement and thereafter remain the exclusive and proprietary property of MHNZ. Nothing in this Agreement will give the Customer any rights whatsoever to the intellectual property of MHNZ
10.2 The Customer agrees:
a. not to use the intellectual property of MHNZ except as expressly authorised by MHNZ; and
b. not to tamper with or remove any markings, patent numbers or other indication of the source of origin of the Products that may be placed by MHNZ on the Products.
10.3 If at any time the Customer discovers any improvement to the Products, the Customer will immediately provide MHNZ with the details of the improvement and acknowledge that the intellectual property in any such improvement and the right to obtain any relevant protection belongs to MHNZ.
11. Confidentiality
11.1 All intellectual property belonging to and all information relating to MHNZ and its affiliated companies (collectively, "MHNZ Group") (including but not limited to information relating to the business and products of MHNZ Group and the terms and existence of this Agreement), which by designation or by its nature is intended to be treated as confidential, will be confidential information for the purposes of this Agreement (“Confidential Information”).
11.2 The Customer will not without MHNZ’s prior written consent disclose any Confidential Information to any third party.
12. Use of information
12.1 The Customer agrees that MHNZ may obtain information about the Customer and its financial and business affairs from the Customer or any other person in the course of MHNZ’s business, including credit assessment, debt collection and direct marketing activities, and the Customer consents to any person providing MHNZ with such information.
12.2 The Customer agrees that MHNZ may use the information it has about the Customer’s credit worthiness for its own reference purposes.
12.3 The Customer must notify MHNZ of any change in circumstances that may alter the accuracy of the information provided by the Customer to MHNZ.
13. Force majeure
13.1 MHNZ will not be liable for any delay or failure in the performance of any of its obligations under this Agreement to the extent that such delay or failure is occasioned by circumstances beyond the reasonable control of, and without the fault or negligence of, MHNZ.
14. No exclusivity
14.1 No exclusivity is granted or will be deemed to be granted to the Customer by MHNZ. MHNZ will be free to supply any other party within the territory in which the Customer may operate.
15. Termination
15.1 If the Customer fails to pay any monies owing to MHNZ under this Agreement, commits any act of bankruptcy, or being a company, does any act which would render it liable to be wound up, has a receiver appointed over its property, or otherwise breaches a material term of this Agreement, MHNZ may (without prejudice to any other remedies available to it) suspend or terminate this Agreement and the proportion of the monies owing, calculated according to those Products supplied and those already ordered and manufactured, will immediately fall due and payable.
15.2 Any termination of this Agreement will be without prejudice to any rights or obligations of a party arising prior to the effective date of the termination.
16. Dispute resolution
16.1 In the event of any dispute between the parties in relation to this Agreement, the parties will first seek to resolve the dispute by giving prompt notice to the other party and in good faith endeavour to resolve the dispute. If the dispute remains unresolved the parties will seek a resolution through the use of mediation or other informed method of resolution before pursuing arbitration in New Zealand or resolution through the Courts of New Zealand.
17. Governing law
17.1 This Agreement will be deemed to be made in New Zealand and will in all respects (including enforcement thereof) be construed and governed by the laws of New Zealand but on points of patent, trade mark or copyright law or procedure is to be governed by the law of the country granting the patent or trade mark registration or the copyright protection. The parties irrevocably waive any objection to New Zealand as the forum for proceedings on grounds of forum non conveniens or any similar grounds.
18. Update to Agreement
18.1 MHNZ may, in its sole discretion, update this Agreement or other matters from time to time by notifying the Customer by email or post, or by posting updates to MHNZ’s website. It is the Customer’s responsibility to regularly check MHNZ’s website for such changes.
19. Miscellaneous
19.1 Variation: No alteration or variation of this Agreement will be binding upon MHNZ unless authorised and confirmed by MHNZ in writing.
19.2 Notices: Every notice given under this Agreement will be sufficiently given if delivered personally, posted or transmitted successfully by email or fax to the intended recipient at their last known address, email address or facsimile number (as applicable).
19.3 Individual liability: Where the Customer comprises more than one person carrying on businesses in partnership, each and every individual partner will be jointly and severally liable to MHNZ in respect of all or any indebtedness or liability of the Customer arising out of this Agreement.
19.4 Assignability: The Customer will not assign or otherwise transfer or encumber its rights or obligations under this Agreement except with the prior written consent of MHNZ.
19.5 Entire agreement: This Agreement constitutes the entire understanding and agreement between the parties and supersedes all prior understandings, agreement, promises, assurances, warranties and representations between the parties, whether written or oral, with respect to the subject matter hereof.
19.6Waiver: No waiver of any provision of this Agreement will serve as a waiver of any other provision of this Agreement nor as a continuing waiver of such provision and MHNZ will not have waived or deemed to have waived any provision of this Agreement unless such waiver is in writing and executed by MHNZ.
19.7 Survivorship: Termination of this Agreement for any reason will not affect such rights and obligations of the parties as are intended to survive the termination, which include but are not limited to clauses 8, 9, 10 and 11.
19.8 Severability: If any provision of this Agreement is held unenforceable or in conflict with any applicable laws or regulations, the invalid or unenforceable part or provision will be replaced with a provision which accomplishes, to such extent as possible, the original business purpose of the part or provision in a valid and enforceable manner, and the remainder of the Agreement will remain binding on the parties.
19.9 Counterparts: This Agreement and any POs agreed pursuant to it may be executed in counterparts (including pdf copies), all of which together will constitute one document.
20 Security Interest (NZ Customers only)
20.1 To secure performance of the Customer’s obligations to MHNZ under this Agreement, the Customer:
a. acknowledges and agrees this Agreement is a security agreement for the purposes of the Personal Property Securities Act 1999 (“PPSA”);
b. grants to MHNZ a security interest in the Products and any proceeds of Products;
c. agrees that any Products or proceeds of Products coming into existence after the date of acceptance of this Agreement will come into existence subject to the security interest granted in this Agreement without the need for any further action by any party;
d. acknowledges that it has received valuable consideration from MHNZ, that such consideration is sufficient and attachment of the security interest is immediate and is not postponed or deferred in any way;
e. undertakes to sign any further documents and/or provide any further information (such information to be complete and up to date in all respects) which MHNZ may reasonably require to register a financing statement or a financing change statement on the register; and
f. agrees the security interest in the Products and in any proceeds of Products created by this clause 6 secures all moneys outstanding by the Customer to MHNZ from time to time including (but not limited to) the Price of the Products.
20.2 The Customer waives its rights to receive a copy of the verification statement or to reinstate this Agreement under s133 and s148 of the PPSA.