Parties: These Terms (Terms) are a legally binding agreement governing the purchase of goods of any kind (Goods) from:
Porter Packing Limited, a company registered in New Zealand under company number 5747974 (Supplier); by
You, either individually or for and on behalf of the entity or organisation that you represent (Customer, you, your, or yours).
Application: The Terms apply whenever the Supplier agrees to provide Goods to you, and the Terms form part of every contract and dealing you have with the Supplier, unless otherwise expressly agreed in writing by the Customer and Supplier.
Agreement: The Supplier will be deemed to have agreed to supply Goods to you only once the Supplier has expressly confirmed or accepted your order in writing.
Authority to contract: Where you are accepting the Terms on behalf of an entity or organisation that you represent, you warrant that you have the authority to enter into these Terms on behalf of that entity or organisation.
Collection and Use of Information
Information: The Customer authorises the Supplier to collect, retain and use any information about the Customer, for the purpose of assessing the Customer’s credit worthiness (if applicable), enforcing the rights under the contract, or marketing any Goods provided by the Supplier to any other party.
Authority to contact: The Customer authorises the Supplier to use and disclose any information obtained to any person for the purpose set out in clause 2.1.
Quotation and Price
Quotation: In response to a request for a quotation by the Customer from the Supplier (Quotation), the Supplier will deliver a Quotation which sets out, as applicable, the Goods ordered, the purchase price and payment details for the Goods and any other key particulars. The Supplier will also provide the Customer with an artwork sheet containing the design and specifications of the Goods to be used by the Supplier (if approved) as a guideline for production of the Goods (Sign Off Sheet).
Acceptance: Where the Customer wishes to accept the Quotation and Sign Off Sheet, the Customer will return of copy of both the Quotation and the Sign Off Sheet signed by a duly authorised representative of the Customer, at which point the Quotation will become binding and the Customer will be deemed to have accepted and be bound by the Sign Off Sheet and these Terms for the purposes of the order.
Price: The Supplier will charge the Customer for the provision of Goods at the Supplier’s rates and charges as agreed between the Customer and Supplier and outlined in the Quotation.
Sampling fee: The Supplier will charge the Customer a sample fee of NZ$250 per sample that is produced by the Supplier at Customer’s request (Sample Fee). If the Customer orders more than 3,000 units in an order, the total purchase price for that order will be reduced by an amount equal to the corresponding Sample Fees charged to the Customer by the Supplier in respect of that order.
Changes: Any changes to the order must be authorised in writing by both the Customer and Supplier’s authorised representative. If any change requested by the Customer will increase or decrease the price of the Goods, change the delivery date or other key particulars, the Supplier will advise the Customer of these changes for the Customer’s approval.
GST: Unless otherwise stated, all rates and charges are exclusive of GST, levies, or duties payable in respect of the supply of Goods to the Customer.
Delivery costs: Unless expressly agreed between the Supplier and the Customer, all rates and charges exclude delivery costs and the Customer will be liable for all such costs.
Invoices and payments of Goods: Following acceptance of the Quotation and Sign Off Sheet, the Supplier will an issue an invoice to the Customer detailing the payment price and other key particulars of the order. Unless otherwise agreed by the Supplier in writing, the Customer must pay:
- 60% of the total invoiced amount as a deposit and to secure the order on or before the date specified in the relevant invoice; and
- the balance of the total invoiced amount plus any delivery costs (both domestic and international) in respect of the order prior to date in which the Goods arrive in the destination country (as notified by the Supplier to the Customer in writing). The Customer will be liable for any handling fees, storage costs and/or similar charges/fees that are incurred by the Supplier for reasons beyond its control (including where the costs are incurred as a result of the delay or failure of the carrier of the Goods or any other third party) or otherwise incurred by the Supplier as a result of the Customer failing to perform any of its obligations under these Terms.
The Goods will not be released for final delivery to the Customer until payment of the Goods and all other amounts owing by the Customer to the Supplier (including but not limited to handling fees, storage costs, delivery costs (both domestic and international) and Sample Fees (if any)) have been received in full.
Method of Payment: The method of payment of an invoice must be by direct credit, credit card or by any other method as agreed between the Supplier and the Customer from time to time.
Default: Subject to clause 4.4, if the Customer does not pay any amounts owing under clause 4.1B) or any other amount that is due and payable under these Terms on or before the due date for such payment, the Supplier will be entitled (without prejudice to any other right or remedy it may have) to charge, in addition to any monies due under these Terms, interest on the outstanding amount at 14% per annum, calculated on a daily basis from the date the payment became due until the date payment is actually received by the Supplier.
Default Costs: The Customer agrees to indemnify the Supplier and keep the Supplier indemnified from and against all losses, costs, and expenses resulting from the Customer’s breach, including, but not limited to, any legal costs, costs of recovery and costs of enforcement of any of the Supplier’s rights.
Termination: Without prejudice to any other remedies the Supplier may have, if at any time the Customer is in breach of any obligation under these Terms, the Supplier may suspend or terminate the supply of Goods to the Customer and refuse to supply the Customer with Goods in the future. The Supplier will not be liable to the Customer for any loss or damage the Customer suffers as the result of the Supplier exercising its rights under this clause 4.5.
Risk and Liability
Risk: The Goods remain at the Supplier’s risk until the Supplier relinquishes possession of the Goods, including where possession of the Goods is given to the common carrier or another party for the purpose of transmission to the Customer.
Delay or failure: The Supplier shall not be liable for any delay or failure to perform its obligations under these Terms if the cause of the delay or failure is beyond its control, including (but not limited to) where the delay is caused by the carrier of the Goods. The Customer will not be excused from the performance of any of its obligations under these Terms because of any delay by the Supplier to perform its obligations where such delay is caused by reasons beyond its control, including (but not limited to) where such delay is caused by the carrier of the Goods or any other third party.
Consequential loss: The Supplier shall not in any circumstance be liable for any loss of profits or any consequential, indirect or special loss arising directly or indirectly from the provision of Goods to the Customer.
Limitation of liability: To the fullest extent permitted by law and notwithstanding any other provision of these Terms, if the Supplier is held or found liable to the Customer relating to or arising in connection with these Terms, the Supplier’s total liability to the Customer will not exceed an amount equal to the aggregate fees payable to the Supplier by the Customer for the relevant order under which liability arose.
Title and Security
Title: The Customer acknowledges and agrees that the title of the Goods supplied by the Supplier will not pass to the Customer until the purchase price of the Goods all other amounts owing by the Customer to the Supplier including but not limited to all delivery costs (both domestic and international) and Sampling Fees (if any) have been paid in full.
Relationship: In relation to the Goods supplied by the Supplier to the Customer for which payment in full has not been received:
The relationship between the Supplier and Customer shall be one of principal and agent in relation to the Goods;
The Customer will hold the Goods as bailee for the Supplier;
The Supplier may at any time after a breach of these Terms terminate any agreement relating to the bailment of the Goods and may immediately retake possession of the Goods; and
Where the Goods are disposed of, the monies resulting from the disposal and all other proceeds received in respect of the Goods, including insurance proceeds will be kept separately in trust for the Supplier by the Customer.
Access: Where the Customer has not made full payment for the Goods delivered by the Supplier and held in the Customers possession, the Customers gives irrevocable authority to the Supplier to enter any premise occupied by the Customer, at any reasonable time, to remove any goods not paid for in full by the Customer.
Indemnity: The Customer also agrees to indemnify and hold the Supplier harmless for reasonable costs of removal, enforcement, and legal action in respect of the removal of any Goods.
Security Interest: Where the purchase price for the Goods is not paid in full prior to delivery of the Goods to the Customer, the Customer hereby grants a security interest in favour of the Supplier in all Goods supplied from time to time to the Customer under these Terms as security for:
- the purchase price of any Goods supplied by the Supplier from time to time;
- the proceeds of the sale of any Goods supplied by the Supplier from time to time; and
- all other amounts owing under these Terms.
Undertaking: The Customer undertakes to:
- promptly do all things which the Supplier may reasonably require to enable the Supplier to obtain the full benefit of the Security Interest;
- assist the Supplier to comply with all relevant requirements of laws and regulations relating to the creation, registration, maintenance and protection of security interests generally with respect to the Security Interest; and
Waiver: The Customer waives its right to receive a verification statement in respect of any financing statement relating to the Security Interest pursuant to section 148 of the PPSA.
Contracting out: To the extent permitted by law, the Customer and the Supplier contract out of Part 9 of the PPSA in that:
- the rights and obligations contained in sections 114(1)(a), 125, 129, 132, 133 and 134 of the PPSA do not apply between the Customer and the Supplier;
- the Customer waives its rights contained in sections 121 and 131 of the PPSA; and
- the Customer’s rights referred to in section 107(2)(c), (d), (h) and (i) of the PPSA do not apply between the Supplier and the Customer.
Warranties and Representations
Warranties: To the maximum extent permitted by law, all warranties (except any which may not be lawfully excluded) are expressly excluded, including, without limitation, the implied warranties of merchantability and fitness for any particular purpose.
Consumer: The Customer warrants and represents that the Customer is not a consumer and is acquiring the Goods from the Supplier for a business purpose.
Consumer Legislation: The Customer acknowledges that, due to it not being a consumer, certain provisions of consumer protection legislation in New Zealand, including (but not limited to) the Consumer Guarantees Act 1993 (CGA), Credit Contracts and Consumer Finance Act 2003 (CCCFA) and the Fair Trading Act 1986 (FTA) may not apply.
Proprietary rights: The Customer acknowledges and agrees that the Supplier is the sole owner of (or has rights to) any and all intellectual property rights in and relating to the Goods supplied to the Customer under these Terms, and the Customer will not at any time in any way question, dispute or challenge the Supplier’s ownership of any such rights, nor their validity.
Use Restrictions: The Customer shall not, nor may the Customer permit any other person to:
- alter, remove or tamper with any trademarks, branding, or any other information placed on or in relation to the Goods;
- reverse engineer or otherwise attempt to copy and/or replicate the Goods;
- do any act that would or might invalidate, contest the ownership of or be inconsistent with the Supplier’s intellectual property rights.
No claim: The Customer will not (and will procure and ensure that any relevant persons within its control do not) at any time directly or indirectly challenge or contest the Supplier’s ownership of the intellectual property in and relating to the Goods.
Indemnity: The Customer agrees to indemnify the Supplier for all liabilities, costs, expenses (including reasonable legal expenses) and damages of the Suppler incurred in connection with or paid or agreed to be paid by the Supplier in settlement of:
- an infringement of the intellectual property rights of any third party which result from the Supplier’s use of the Customer’s design specifications for the Goods;
- a breach of clause 9 by the Customer; and
- a breach of this clause 8 by the Customer.
Definition For the purposes of these Terms, “Confidential Information” means all information, trade secrets, know how, experience, expertise or any other information (including but not limited to information about the Suppliers customers, suppliers, contractors and agents) in any form whatsoever supplied or made available, whether directly or indirectly, whenever disclosed and whether before or after the date of this agreement, to the Customer of any recipient of the Customer by the Supplier or any representative of the Supplier.
Confidential Information: All Confidential Information shall be and remain the property of the Supplier and the Customer agrees that it will not at any time contest or dispute the ownership of such Confidential Information. Except where disclosure is required by law, the Customer shall, preserve the confidentiality of the Confidential Information and take out and enforce all proper precautions to preserve such confidentiality and shall not use any Confidential Information in any way which is detrimental to or in competition with, the Supplier. The Customer shall not approach, engage with or enter into any form of agreement with, any party introduced to the Customer by the Supplier unless expressly permitted by the Supplier in writing.
Negotiation: In the event of a genuine dispute between the Customer and the Supplier (both parties acting reasonably and in good faith), the parties agree to endeavour to resolve any such genuine dispute by negotiation in good faith.
Escalation: The parties may escalate the negotiation to their respective CEOs or such other person having equivalent authority in the relevant organization by issuing a notice specifying the particulars of the dispute (Dispute Notice). The parties must procure their respective CEOs to negotiate in good faith to endeavour to resolve such dispute for at least 10 working days after one party having issued to the other party a Dispute Notice.
No proceedings: Unless a party has complied with clauses 9.1 and 9.2, that party may not commence court proceedings relating to the Dispute, except:
- where the party seeks urgent injunctive relief;
- where the dispute relates to compliance with this clause; or
- where it is not related to a genuine dispute.
No disruption: Pending resolution of the Dispute, the parties will continue to perform their respective obligations under these Terms, unless otherwise agreed to in writing.
Unless otherwise notified to the Customer by the Supplier in writing, any notice required to be given to the Supplier under these Terms must be delivered personally or sent by email to the Supplier at:
Porter Packaging Limited
1 Beresford Square, Auckland, 1010, New Zealand
Customer Assignment: The Customer must not, without the prior written consent of the Supplier, assign or transfer the whole or any part of the Customer’s rights or obligations to any other party.
Supplier Assignment: The Supplier may, without the prior written consent of the Supplier, assign or transfer the whole or any part of the Customer’s rights or obligations to any other party.
Construction: These Terms may not be construed adversely to a party just because that party prepared, or procured the preparation of, these Terms.
No Waiver: Failure or neglect by a party to enforce at any time any of the terms, conditions or provisions of these Terms will not be construed to be a waiver of that party’s rights, or to in any way affect the validity of the whole or any part of these Terms.
Severance: Any unlawful or voidable provision in these Terms will be read down so as to be valid and enforceable or, if it cannot be read down, will be severed from these Terms without affecting the validity, legality or enforceability of the remaining provisions.
Entire Agreement: These Terms constitute the entire understanding and agreement of the parties relating to the transactions contemplated by these Terms; and supersede and extinguish all prior agreements, arrangements and understandings between the parties relating to the transactions contemplated by these Terms.
Statutory exclusions: To the extent permitted by law, the parties acknowledge and agree that sections 9, 12, 13 and 14(1) of the FTA are expressly excluded and that no party will have any recourse against the other pursuant to these provisions in connection with these Terms. The parties acknowledge and agree that these exclusions are fair and reasonable in the circumstances.
Amendments: The Supplier reserves the right to review and amend any of these Terms at any time and from time to time. If, following any such review, there is any change to these terms and conditions such change will take effect from the date on which the Supplier gives notice to the Customer and shall apply in respect of all future sales of Equipment or Services to the Customer.
Governing Law: These Terms and Conditions will be construed and take effect as a contract made in New Zealand and will be governed by New Zealand law, and the parties submit to the non-exclusive jurisdiction of the New Zealand courts.