Manuka Health New Zealand -Terms of Trade

EFFECTIVE     October 2019       

 

The following terms will be incorporated into each purchase ("Purchase") and form part of the agreement entered into between the buyer (“Buyer”) AND Manuka Health New Zealand Limited (or any of its subsidiaries, as the case maybe) (“MHNZ”) for the supply and purchase of Manuka Health New Zealand Limited products (the “Agreement”). In the event of any conflict between these terms, a formal contract between the Buyer and MHNZ (the “Contract”) and any relevant Purchase confirmation, the Purchase confirmation (“Confirmation”), the Contract and these terms shall prevail in according to the foregoing order and to the extent of the inconsistency. These terms will apply to agreements for the supply products in New Zealand (“Local Supplies”) and for the supply of products for the purpose of export (“Export Supplies”).  The AUS addendum will apply in respect of sales by Manuka Health Australia Pty Ltd.


1.0   Agreement, Price and Ordering

1.1   MHNZ agrees to sell and the Buyer agrees to buy MHNZ’s honey, honey-based products and other products (“Products”) as set out in or referred to in the relevant Confirmation at the price specified and provided to the Buyer by MHNZ (“Price”).

1.2   The Buyer agrees that all Prices are:

(a)   in NZ$ unless otherwise stated in the Confirmation;

(b)    exclusive of GST, other taxes and duties which may be applicable and any insurance, freight and handling charges. Such taxes and charges shall be invoiced and paid in addition to the Price;

(c)    FAS Auckland for Export Supplies or Delivered for Local Supplies; and

(d)   subject to the correct specifications (if any and as applicable) having been provided by the Buyer.

1.3   The Buyer must submit a purchase order for the Products and no order placed by the Buyer shall be deemed to be accepted by MHNZ unless and until confirmed in writing by MHNZ pursuant to a Confirmation or upon actual performance thereof.

1.4   No order which has been accepted by MHNZ may be cancelled by the Buyer except with the written consent of MHNZ and on terms that the Buyer will indemnify MHNZ in full against any and all losses, costs, damages, charges and expenses suffered or incurred by MHNZ as a result of such cancellation.

 

2.0   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 Buyer for the Products will be at the sole discretion of MHNZ.

2.2   The time for payment within which the Buyer is to pay for the Products will be an essential term of this Agreement.

2.3   Credit card payments will be subject to a surcharge of 2.75%.

 

3.0   Interest and Costs on Overdue Accounts

3.1   If the Buyer 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 2.0% per month 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 Buyer 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 Product until all     payments have been made.

 

4.0   Delivery

4.1   The Products will be deemed to have been delivered to the Buyer at the time they are delivered to the port for shipping for Export Supplies or at the New Zealand delivery address for Local Supplies.

4.2   Freight terms are FAS Auckland for Export Supplies or Delivered for Local Supplies and are the responsibility of the Buyer.

4.3   For Export Supplies, the Buyer agrees to export the Products from New Zealand within two (2) weeks of this arriving in port (and to produce proof of the same promptly upon request by MHNZ), or these Products will be subject to New Zealand GST.

 

5.0   Risk and Ownership

5.1   On delivery of the Products by MHNZ in accordance with clause 4 above, the Buyer 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 Buyer has paid the full Price for the Products and all other monies owing by the Buyer to MHNZ.

5.3   The Buyer acknowledges that it is in possession of the Products solely as bailee for MHNZ and shall not part with possession of the Products until full payment for the Products and all monies owing to MHNZ by the Buyer have been made. The Buyer will hold any proceeds of sale of the Products not yet paid for in trust for MHNZ.

5.4   The Buyer will store the Products in such a way that it is clear that they are the property of MHNZ.

5.5   The Buyer agrees that MHNZ, its agents and servants (without the need to give notice) may enter and are authorised where necessary, to break into the premises where the Buyer is or may be storing the Products for the purpose of MHNZ‘s inspecting and/or removing such Products.

 

6.0   New Zealand Personal Property Securities Act 1999

6.1   Notwithstanding clause 5, the parties acknowledge that the Buyer grants MHNZ a security interest over the Products delivered to the Buyer.

6.2   The Buyer agrees to:

(a)   if required by MHNZ, co-operate in good faith with MHNZ to execute the documentation required to register a security interest in favour of MHNZ on the New Zealand Personal Property Securities Register and protect MHNZ’s interest in the Products supplied.

(b)   waive any right to:

(i)    receive a copy of the verification statement, pursuant to s148 of the New Zealand Personal Property Securities Act 1999; and

(ii)   reinstate this Agreement, pursuant to s133 of the New Zealand Personal Property Securities Act 1999.

 

7.0   Warranty and Product Recall

7.1   MHNZ warrants that it will repair or make good any defects in the Product or packaging brought to its notice within ten (10) business days after delivery of the Products to the Buyer.  If written notice is not received by MHNZ within ten (10) business days, the claim shall be waived and the Products delivered shall be deemed to conform to the Confirmation and to be unconditionally accepted by the Buyer.  No claim shall 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 shall be limited to correcting the defects in product or packaging contained in clause 7.1.  Any right to make a claim against MHNZ under clause 7.1 shall lapse if the Buyer accepts delivery of the Products.

7.3   The Buyer shall, 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 (the "Recall Notice"), use all reasonable endeavours at its own cost to assist MHNZ in locating and recalling any Products.

7.4   Unless required by law, the Buyer shall 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.

 

8.0   Exclusion of New Zealand Consumer Guarantees Act 1993 and any Statutory or Common Law Implied Terms

8.1   If the Buyer acquires the Products for a business purpose the Buyer agrees that the statutory guarantees and implied terms, covenants and conditions contained in the New Zealand Consumer Guarantees Act 1993 are to the extent permitted by law excluded and do not apply.

8.2   To the extent permitted by law and where they are inconsistent with the terms of this Agreement, the provisions of the New Zealand Sale of Goods Act are excluded.

 

9.0   Limitation and Exclusion of Liability

9.1   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 Buyer for any indirect, special, incidental, consequential, economic, loss of profits, exemplary damages or losses suffered by the Buyer arising out of this Agreement and whether actionable in contract, tort (including negligence), equity or otherwise.

9.2   In the event that MHNZ is found liable, MHNZ’s liability in aggregate will not exceed the total sum payable by the Buyer to MHNZ under the relevant PO.

9.3   The Buyer agrees that the limitations and exclusions set out in this Agreement are reasonable having regard to all the circumstances.

9.4   This clause 9 will survive the termination of this Agreement.

 

10.0  Indemnity

10.1  The Buyer shall 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 in connection with any breach of the Buyer of its obligations or undertakings under this Agreement or any acts or omissions of the Buyer in using any of the Products provided by MHNZ under this Agreement.

10.2  This clause 10 will survive the termination of this Agreement.

 

11.0  Intellectual Property

11.1  The Buyer acknowledges that MHNZ is the owner of the intellectual property rights in the Products.Nothing in this Agreement shall give the Buyer any rights whatsoever to the intellectual property of MHNZ which intellectual property shall at all times during the term of this Agreement and thereafter remain the exclusive and proprietary property of MHNZ. 

11.2  The Buyer 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.

11.3  If at any time the Buyer discovers any improvement to the Products the Buyer 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.

11.4  This clause 11 will survive the termination of this Agreement.

 

12.0  Confidentiality

12.1  All intellectual property belonging to and 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, 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”).

12.2  The Buyer will not without MHNZ’s prior written consent disclose any Confidential Information to any third party.

12.3  This clause 12 will survive the termination of this Agreement.

 

13.0  Use of Information

13.1  The Buyer agrees that MHNZ may obtain information about the Buyer and its financial and business affairs from the Buyer or any other person in the course of MHNZ’s business, including credit assessment, debt collection and direct marketing activities, and the Buyer consents to any person providing MHNZ with such information.

13.2  The Buyer agrees that MHNZ may use the information it has about the Buyer relating to the Buyer’s credit worthiness for its own reference purposes.

13.3  The Buyer must notify MHNZ of any change in circumstances that may alter the information provided by the Buyer to MHNZ.

 

14.0  Force Majeure

14.1  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 beyond the reasonable control and without the fault or negligence of MHNZ.

 

15.0  Terms and Conditions

15.1  No alteration or variation of this Agreement will be binding upon MHNZ unless authorised and confirmed by MHNZ in writing.

 

16.0 Termination

16.1  If the Buyer 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.

16.2 Any termination of this Agreement shall be without prejudice to any rights or obligations of a party arising prior to the effective date of the termination.

 

17.0  Dispute Resolution

17.1  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.

 

18.0  Governing Law

18.1  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.

 

19.0  Notices

19.1  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 his/her or its last known address, email address or facsimile number (as applicable).

 

20.0  Individual Liability and Guarantees

20.1  Where the Buyer 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 Buyer arising out of this Agreement.

 

21.0  Miscellaneous

21.1  Assignability:  The Buyer will not assign or otherwise transfer or encumber its rights or obligations under this Agreement except with the prior written consent of MHNZ.

21.2  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.

21.3  Waiver:  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.

21.4  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 those clauses expressed as surviving the termination of this Agreement.

21.5 Counterparts:  This Agreement may be executed in counterparts (which may be facsimile copies) and all of which, when taken together constitute the one document.

21.6 Severability:  Should any part or provision of this Agreement be 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.

 

22.0  AUS Addendum

22.1  Prices are [ex MHNZ’s warehouse in Australia / delivered].  Clause 4 above shall be amended to the effect that the Product will be deemed to have been delivered to the Buyer at the time they [are made available for collection by the Buyer at the warehouse / delivered to the Buyer’s given address].

22.2  Clause 6 shall apply with reference to the Australian Personal Property Securities Act 2009, mutatis mutandis.

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