Terms of trade

CABERNET FOODS LIMITED/KINTYRE MEATS LIMITED

1. Interpretation

1.1 “Order” means a confirmed order.  “Person” includes a firm or incorporation.  “PPSA” means the Personal Property Securities Act 1999 and any regulations and amendments.  “Purchaser/ you” means any person contracting with or offering to contract with us.  “Quote” means an accepted quote. “Supplier” means the relevant of Cabernet Foods Limited and/or Kintyre Meats Limited (otherwise referred to as “Client”, “We”, “Us”, “Our” or the “Vendor”) which actually supplies you with Goods and Services.  “Transit” includes transportation, shipment, and transfer.  

1.2 If there is more than one Purchaser then the purchasers’ obligations shall be joint and several.

2. Quotes/Orders/Price

2.1 All Quotes and Orders shall be in terms of and subject to our Conditions of Trade (Terms) current at the date of acceptance of the Quote or Order.  Each accepted Quote or Order constitutes a separate contract incorporating the then current Terms.

2.2 The price Quote or Order can incur additional delivery costs unless expressly excluded in a Quote or Order. A nominal delivery charge will / may be added to Orders under $1000 or a purchase of four or less items.

2.3 The price shall be increased by the amount of any GST, other taxes or duties, which may then apply, unless expressly excluded in a Quote or Order.

2.4 Quotes are based on current prices at the date of the Quote. A Quote expires one (1) day after the date of the Quote (unless accepted beforehand).

2.5 An Order may be cancelled only with our prior written consent and only on such terms as we may specify.

2.6 Price is subject to adjustment in terms of clause 4.6. Carcasses (are subject to shrinkage) weighed at the time of slaughter and invoiced on this basis

2.7 Pallets used in delivery shall be charged to and paid for by you at our then current price, unless expressly excluded in a Quote or Order.

2.8 If we charge you for pallets, you will receive a credit for your next Order on return of pallets to us.

2.9 Each Quote and Order will specify whether the Supplier is Cabernet Foods Limited or Kintyre Meats Limited.

3. Payment

3.1 Unless we otherwise agree in writing the price is due and payable to us in full, and without set off or deduction or withholding, seven (7) days after delivery (time being of the essence).  

3.2 If the credit period is extended beyond 7 days without our agreement, the amount of the extended credit shall become a secured loan on terms identical to those currently standard to the Bank of New Zealand Limited, except as those are expressly varied by these Terms.

3.3 We may recover any amounts owing by you in relation to the Goods and Services even if property in the Goods has not passed to you (refer paragraph 5).

3.4 We reserve the right to charge interest at the rate of 2.5 per cent (2.5%) per month calculated daily, on any overdue amount including costs in terms of clause 17, until any such amounts are paid to us in full. Our monthly account management fee is $30 for accounts with a balance of up to $2,000 and $60 for accounts with a balance over $2,000.  All such interest and account management fees will be compounded monthly.

3.5 The price shall be paid to us in full and you will make no deduction or withholding or set off without our prior written consent (which we may give or decline in our absolute discretion).

3.6 We may apply any payment received from you or on your behalf (where you have not specified the purpose of payment) in reduction of your indebtedness in the priority as we think fit.

4. Delivery/Quantity

4.1 The Supplier will arrange delivery of the Goods to the place specified in the Quote or Order.   

4.2 Any date for delivery in any Quote or Order is an estimated date only and time shall in no case be of the essence in this contract unless the Supplier has expressly given a firm commitment to deliver by a specific date in writing.  A Order is not to operate as such a commitment.

4.3 You will accept and pay for Goods even if we fail to deliver by an estimated date.

4.4 We may deliver by instalments and you will accept such instalment deliveries. 

4.5 If you refuse to accept delivery or to uplift Goods from our premises, we may charge you for any resulting extra cost (including storage and transportation).

4.6 The quantity of Goods delivered by us may vary by plus or minus 20% against the quantity specified in a Quote or Order and the price in the invoice or delivery note provided with the Goods shall be charged on the actual quantity delivered.

5. Risk/Ownership/Title

5.1 Unless we otherwise agree in writing all Goods will be at your risk on delivery to you (our records of the date and time of delivery being conclusive evidence for the purposes of these Terms).

5.2 Ownership of the Goods remains with the Supplier and does not pass to you until you pay us the full amount of all moneys owing to us by you (including any moneys owing in respect of Goods and Services previously supplied by us to you).

5.3 While ownership of the Goods remains with the Supplier:

5.3.1 It will be your duty to take all reasonable care of the Goods, to store them separately and keep them ascertainable and chilled.

5.3.2 We authorise you to use or sell the Goods for full consideration in the ordinary course of your business. We may revoke this authority at any time and with immediate effect by sending you notice in writing by e-mail or other means.

5.3.3 In the event that:

• you are in default of any amounts owing to us; or
• we have reasonable grounds to believe that the Goods have been or are at risk of being, destroyed, damaged, endangered, disassembled, removed, concealed, sold or otherwise disposed of contrary to these Terms

we may enter your premises to remove the Goods or take control or possession of the Goods in Transit.

5.3.4 We will not be responsible for any damage caused by the use of reasonable force in entering and removing the Goods. You will indemnify us for the costs of any damage. 

5.3.5 You will be liable to us for all costs we incur (including transportation and storage) in entering and removing the Goods or in taking possession or control of the Goods.

5.3.6 We may resell any of the Goods (as we think fit) and apply the proceeds of sale in reduction of any indebtedness of yours.

5.3.7 You must advise us immediately of any action by any third party (including any of your creditors) that may affect our interest in the Goods.

5.4 If you use or resell the Goods before ownership of the Goods passes to you, the proceeds of use or sale shall be received and held by you (in whatever form) in trust for both you and us. Our interest as beneficiary under that trust shall be that portion of the proceeds which does not exceed your total indebtedness to us. The balance of the proceeds (if any) shall be your beneficial interest under that trust. 

5.5 We may at any time by notice in writing require you to pay the proceeds into a bank account nominated by us for disbursement in accordance with these Terms.

6. Undertaking as to title

6.1 The Supplier undertakes that at the time of the passing of the property in the Goods to you:

6.1.1 It will have the right to sell the Goods;

6.1.2 The Goods will be free from any charge or encumbrance in favour of any third party.

7. Sale by Description, Purpose or Sample/ Accuracy or Artwork

7.1 If Goods are to correspond with a description, the description must be agreed in writing by us and you and confirmed in a written Quote or Order.

7.2 If Goods are to be for a specific purpose the purpose must be agreed in writing by us and you and confirmed in a written Quote or Order.

7.3 If Goods are to correspond with a sample the sample must be agreed in writing by us and confirmed in a written Quote or Order. 

7.4 You will be solely responsible for the checking, accuracy and signing off of descriptions, specific purposes and/or samples.

7.5 Any claims, including “returns or price changes”, to be made in writing and lodged directly with our sale office no more than 1 day after delivery.  We will notify you whether or not we accept your claim.

8. Quality/Fitness/Recall

8.1 Goods shall be manufactured to our quality standard and reviewed by us from time to time except as specifically agreed in writing by us and you.

8.2 We do not undertake the quality or fitness of Goods for any particular purpose except where you make known to us in terms of clause 7 the particular purpose for which you require the Goods and you show that you have relied on our skill or judgment.

8.3. Where the Goods are to a description, purpose or sample in terms of Clause 7, the Goods shall be of merchantable quality, but you will examine the Goods and we shall have no liability for any defects, which ought to have been revealed but which you do not detect by such examination.

8.4 We may voluntarily recall any Goods that we supply to you, if we reasonably believe in our absolute discretion that:

• (a) the Goods will, or may, cause injury to any person; or

• (b) a reasonably foreseeable use (including misuse) of the Goods will, or may, cause injury to any person; or

• (c) the Goods do not comply with a product safety standard.

8.5 The Supplier shall meet all costs associated with the recall, including the cost of destruction (if applicable) and replacement of the Goods recalled, transportation costs, and remediation costs.

9. Our Liability Limited

9.1 Our liability shall be limited, at our option, to any one or more of the following:

9.1.1 The replacement of the Goods or the supply of equivalent Goods or Services;

9.1.2  The cost of replacing the Goods or of acquiring equivalent Goods; or

9.1.3 The cost of having the Services supplied again.

9.2 You acknowledge and agree that, despite anything else in these Terms, if either of Cabernet Foods Limited or Kintyre Meats Limited breaches these conditions:

• (a) you shall only have recourse against, and may only exercise any legal rights and remedies against, the relevant company which is the Supplier; and
• (b) you hold the other of us, being the company which is not the Supplier, harmless from, and indemnify them against, the consequences of any such breach.

9.3 We will not be liable for any consequential damage, loss of profit or business revenue.

9.4 We and you agree that all Orders are for business purposes and, as a result, to the maximum extent permitted by law the Consumer Guarantees Act 1993 does not apply.

10. Return of Goods to us

10.1 You are considered to have accepted the Goods unless immediately on finding defect(s) you lodge a claim in writing to our sale office describing the defect(s) and of your intention to return the Goods. We will notify you whether or not we accept your claim.

10.2 You have no right to make a claim to return Goods more than 1 day after delivery.

10.3 Goods returned to us must be in their original packaged and sealed form, or repackaged by you, along with the original label and bar coding, and we must be satisfied that the quality and condition of the Goods has not deteriorated.

10.4 If the Goods returned are not in their original package and do not include their original label and bar coding, then you must provide evidence of purchase of the Goods from us, and we must be satisfied that the Goods returned by you are the Goods that we supplied you and that they form part of our usual stock in trade. 

11. Our Rights of Disposal / Payment of Price Due

11.1 In the event that:

11.1.1 We retain possession or control of Goods; and

11.1.2 Payment of the price is due to us; and

11.1.3 We have made written demand for payment of the price; and

11.1.4 We have not received payment of the price in full;

We may dispose of the Goods and may claim from you any loss to us as a result of such disposal (including costs of disposal), and any general security agreement granted to you, your shareholder or other associated person is assignable to us pursuant to any personal guarantee we obtain and for so long as any amount payable to us remains overdue.

12. Grant of Security (Personal Property Securities Act 1999(PPSA))

12.1 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:

12.1.1 these terms and conditions constitute a security agreement for the purposes of the PPSA; and

12.1.2 a security interest is taken in all present or after acquired Goods and/or collateral (account) – being a monetary obligation of the Client to WE for Goods that have previously been supplied and that will be supplied in the future by WE to the Client.

12.2 The Client hereby acknowledges that these Terms and Conditions of Trade constitute a security agreement which creates a security interest in favour of the Vendor:

12.2.1 for all Goods previously supplied by the Vendor to the Client (if any); and

12.2.2 for all of its present and after acquired Goods; and

12.2.3 for intellectual property arising out of or in connection with the Services.

12.3 The Client agrees to grant a “Purchase Money Security Interest” to the Vendor in respect to all amounts owed by the Client to the Vendor, as that term is defined in the PPSA.

12.4 Where Goods in respect of which title has not passed to the Client are sold by the Client in the ordinary course of business, the book debt created on the sale and the proceeds of sale when received shall be held by the Client for the Vendor in terms of section 45 of the PPSA.

12.4.1 Where any proceeds of sale are placed in the Client’s bank account the funds in the Client’s bank account shall be deemed to be held on trust for the Vendor to the extent of proceeds of sale; and

12.4.2 Where any payments are made from the Client’s bank account otherwise than to WE payment shall be deemed to have been made from all other funds in the Client’s bank account and not from funds held on trust for the Vendor; and

12.4.3 The trust obligation imposed by this clause and the Vendor’s entitlements under the PPSA shall continue for so long as the Vendor is unpaid for all Goods supplied to the Client.

12.5 The Client undertakes to:

12.5.1 sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which WE may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register; and

12.5.2 indemnify, and upon demand reimburse, WE for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby; and

12.5.3 not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of the Vendor; and

12.5.4 immediately advise the Vendor of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales including but not limited to changes to address, email address, trading name or business practice); and

12.5.5 If our security interest in the Goods is lost because of any breach by you of these Terms we shall be entitled to a registerable mortgage security on any of your land and on the land of any Guarantor for the full value of our entitlement and indemnity costs.

12.6 WE and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.

12.7 If any of the Goods are incorporated in or used as material for other goods before payment is made ownership in the whole of the other goods shall be and remain with the Vendor until payment is made. The Vendor’s Security Interest in the Goods shall continue in the terms of section 82 of the PPSA.

12.8 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131of the PPSA.

12.9 Unless otherwise agreed to in writing by WE, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.

12.10 The Client shall unconditionally ratify any actions taken by WE under clauses 12.1 to 12.9.

13. Privacy and Use of Personal Information

13.1 All emails, documents, images or other recorded information including Personally Identifiable Information (PII) as defined and referred to in clause 13.4 held or used by WE is considered confidential. WE acknowledges its obligation in relation to the handling, use, disclosure and processing of PII pursuant to the Privacy Act 2020 (“the Act”) including Part II of the OECD Guidelines and as set out in Schedule 8 of the Act and any statutory requirements where relevant in a European Economic Area “EEA” then the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). WE acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Clients PII, held by WE that may result in serious harm to the Client, WE will notify the Client in accordance with the Act and/or the GDPR. Any release of such PII must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.

13.2 Notwithstanding clause 13.1, privacy limitations will extend to WE in respect of Cookies where transactions for purchases/orders transpire directly from WE’s website. WE agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection the Clients Personal Information such as:

13.2.1 IP address, browser, email client type and other similar details; and

13.2.2 tracking website usage and traffic; and

13.2.3 reports which are available to WE when WE sends an email to the Client; so WE may collect and review that information (collectively “PII”)

13.3 If the Client consents to WE’s use of Cookies on WE’s website and later wish to withdraw that consent, the Client may manage and control WE’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when existing the site.

13.4 The Client authorises WE or WE’s agent to:

13.4.1 access, collect, retain and use any information about the Client;

13.4.1.1(including, name, address, D.O.B, occupation, driver’s license details, electronic contact (e.g. email, Facebook or Twitter details), or next of kin and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or

13.4.1.2for the purpose of marketing products and services to the Client.

13.4.2 disclose information about the Client, whether collected by WE from the Client directly or obtained by WE from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.

13.5 Where the Client is an individual the authorities under clause 13.4 are authorities or consents for the purposes of the Privacy Act 2020.

13.6 The Client shall have the right to request WE for a copy of the PII about the Client retained by WE and the right to request WE to correct any incorrect PII about the Client held by WE.

13.7 Such personal information will be held by us at our registered address for service:

          530 Gladstone Road

          RD 2

          Carterton 5792

13.8 If you fail to provide any information requested by us in respect of any credit application, we may be unable to process your credit application.

14. Force Majeure

Neither of us shall be liable to the other, because of any delay in performance, or non-performance, of any obligations (apart from any inability to pay any amount due to the other party due to a lack of funds) to the extent that the delay or non-performance is due to any circumstances not caused or contributed to by either of us and beyond the reasonable control of either of us which has been notified by one of us to the other, and the time for performance of the obligation shall be extended accordingly.

15. Goods and Services Definition

15.1 “Goods” means all goods that the Supplier supplies to you from time to time, including but not limited to: animal carcasses, cuts of meat and processed meat of sheep, beef, venison, pork and any other animal.

15.1.1 For the purpose of the application of the PPSA, where the Goods supplied are your inventory, all reference to Goods shall be read as reference to inventory while they are held as inventory; and

15.1.2 You agree that where the Goods supplied are not or are no longer held as your inventory, all references to Goods shall, in respect of those Goods, mean that the Goods described in any relevant Order, packing slip or invoice prepared by us describes the Goods protected by our security interest and (unless the context requires otherwise) includes all proceeds of the sale of such Goods and any product or mass within which the Goods subsequently become packaged.

15.2 “Services” means all services the Supplier supplies to you from time to time.

16. Assignment

You are not entitled to assign your rights under any contract with us without our prior written consent.

17. Costs

All costs and expenses incurred by us to remedy any breach by you of obligations contained or implied in the Terms including enforcement of any rights under these Terms or any associated guarantee(s), and the collection, and legal costs on a full solicitor and client indemnity basis shall be recoverable from you in addition and without prejudice to our right to damages for breach of the Terms or breach of any agreement arising between us and you for the supply of Goods and Services.

18. No Set Off

You have no right of set off in payment of any amounts due to us.

19. Governing law

The laws of New Zealand including the Companies Act 1993, the Sale of Goods Act 1908, the Personal Property Securities Act, the Land Transfer Act 1952, the Property Law Act 2007 and their amendments shall apply to any contract of which the Terms are part except to the extent expressly negatived or varied by the Terms or in writing by the parties to such contract.

20. Conditions/Changes/Termination

20.1 Quotes and Orders shall be in terms of and subject to the Terms – refer to clause 2.1 above.

20.2 We are entitled to alter and update the Terms without needing to give advance notice. It is your duty to ascertain our current and effective version of the Terms by written enquiry to any of our available communication addresses or by checking on our website (www.cabernet.co.nz).

20.3 We may discontinue our trading relationship at any time (without affecting any previous Orders and our respective obligations under them) without needing any reason to do so.

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