“FD” means FruitDirect T/A FD, its successors and assigns or any person acting on behalf of and with the authority of FruitDirect T/A FD.
“Customer” means the person/s or any person acting on behalf of and with the authority of the Customer requesting FD to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
if there is more than one Customer, is a reference to each Customer jointly and severally; and
if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
includes the Customer’s executors, administrators, successors and permitted assigns.
“Goods” means all Goods or Services supplied by FD to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
“Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including personal information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Customer does not wish to allow Cookies to operate in the background when using FD’s website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
“Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Goods as agreed between FD and the Customer in accordance with clause 6 below.
The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
These terms and conditions may only be amended with the consent of both parties in writing and shall prevail to the extent of any inconsistency with any other document or contract between the Customer and FD.
The Customer acknowledges that the supply of Goods on credit shall not take effect until the Customer has completed a credit application with FD and it has been approved with a credit limit established for the account.
In the event that the supply of Goods request exceeds the Customers credit limit and/or the account exceeds the payment terms, FD reserves the right to refuse delivery.
The Customer accepts and agrees to maintain and follow FD’s preferred methods; principles and rules in respect of FD’s Goods brand, details pertaining to such shall be provided at the time of signing this contract. Failure to comply with this clause will result to immediate suspension and/or termination of the supply of Goods.
Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 22 of the Electronic Transactions Act 2002 or any other applicable provisions of that Act or any Regulations referred to in that Act.
Out of Stock/Substitution
FD will use its reasonable endeavours to ensure that all Goods ordered by the Customer are supplied to the Customer. If the Goods ordered are not available in stock, FD shall work with the Customer on a case by case basis where options may include back order of Goods or amendment to the order.
Errors and Omissions
The Customer acknowledges and accepts that FD shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
resulting from an inadvertent mistake made by FD in the formation and/or administration of this contract; and/or
contained in/omitted from any literature (hard copy and/or electronic) supplied by FD in respect of the Services.
In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of FD; the Customer shall not be entitled to treat this contract as repudiated nor render it invalid.
Change in Control
The Customer shall give FD not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address and contact phone or fax number/s, change of trustees or business practice). The Customer shall be liable for any loss incurred by FD as a result of the Customer’s failure to comply with this clause.
Price and Payment
At FD’s sole discretion the Price shall be either:
as indicated on any invoice provided by FD to the Customer; or
the Price as at the date of delivery of the Goods according to FD’s current price list; or
FD’s quoted price (subject to clause 6.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
FD reserves the right to change the Price:
if a variation to the Goods or Services to be provided is requested; or
if during the course of the Services, the Goods cease to be available from FD’s third party suppliers, then FD reserves the right to provide alternative Goods, subject to prior confirmation and agreement of both parties; or
in the event of increases to FD in the cost of labour or materials (including but not limited to overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) which are beyond FD’s control.
Variations will be charged for on the basis of FD’s quotation, and will be detailed in writing, and shown as variations on FD’s invoice. The Customer shall be required to respond to any Price variation submitted by FD within five (5) business days. Failure to do so will entitle FD to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
At FD’s sole discretion a deposit may be required.
Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by FD, which may be:
on or before delivery of the Goods;
for certain approved Customers, due twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
the date specified on any invoice or other form as being the date for payment; or
failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by FD.
Payment may be made by cash, electronic/on-line banking, or by any other method as agreed to between the Customer and FD.
The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by FD nor to withhold payment of any invoice because part of that invoice is in dispute.
Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to SLG an amount equal to any GST FD must pay for any supply by FD under this or any other contract for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
Delivery of Goods
Delivery (“Delivery”) of the Goods is taken to occur at the time that FD (or FD’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
At FD’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
FD may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
Any time specified by SLG for delivery of the Goods is an estimate only. The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. SLG will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. In the event that the Customer is unable to take delivery of the Goods as arranged then SLG shall be entitled to charge a reasonable fee for redelivery and/or storage.
The Customer acknowledges and agrees that:
SLG does not guarantee the websites performance or availability of any of its Goods; and
on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades; and
there are inherent hazards in electronic distribution and as such SLG cannot warrant against delays or errors in transmitting data between the Customer and SLG including orders, and you agree that to the maximum extent permitted by law, SLG will not be liable for any losses which the Customer suffers as a result of online-ordering not being available or for delays or errors in transmitting orders;
when making a transaction through the website, the Customer’s information will pass through a secure server using SSL (secure sockets layer) encryption technology. The encryption process ensures that the Customer’s information cannot be read by or altered by outside influences;
if the Customer is not the cardholder for any credit card being used to pay for the Goods, SLG shall be entitled to reasonably assume that the Customer has received permission from the cardholder for use of the credit card for the transaction.
SLG reserves the right to terminate the Customer’s order if it learns that the Customer has provided false or misleading information, interfered with other users or the administration of SLG’s Services, or violated these terms and conditions.
Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, SLG is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by SLG is sufficient evidence of SLG’s rights to receive the insurance proceeds without the need for any person dealing with SLG to make further enquiries.
If the Customer requests SLG to leave Goods outside SLG’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
Due to the nature of fresh Goods SLG does not guarantee the supply of any specific type of Goods at any particular time (including but not limited to the weather conditions, adverse growing season, etc.).
The Client shall ensure that SLG has clear and free access to effect delivery of the Goods. SLG shall not be liable for any loss or damage to the delivery site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of SLG.
SLG and the Customer agree that ownership of the Goods shall not pass until:
the Customer has paid SLG all amounts owing to SLG; and
the Customer has met all of its other obligations to SLG.
Receipt by SLG of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
It is further agreed that until ownership of the Goods passes to the Customer in accordance with clause 11.1:
the Customer is only a bailee of the Goods and must return the Goods to SLG on request.
the Customer holds the benefit of the Customer’s insurance of the Goods on trust for SLG and must pay to SLG the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for SLG and must pay or deliver the proceeds to SLG on demand.
the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of SLG and must sell, dispose of or return the resulting product to SLG as it so directs.
the Customer irrevocably authorises SLG to enter any premises where SLG believes the Goods are kept and recover possession of the Goods.
SLG may recover possession of any Goods in transit whether or not delivery has occurred.
the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of SLG.
SLG may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
Personal Property Securities Act 1999 (“PPSA”)
Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:
these terms and conditions constitute a security agreement for the purposes of the PPSA; and
a security interest is taken in all Goods and/or collateral (account) – being a monetary obligation of the Customer to SLG for Services – that have previously been supplied and that will be supplied in the future by SLG to the Customer.
The Customer undertakes to:
sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which SLG may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
indemnify, and upon demand reimburse, SLG 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;
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 SLG; and
immediately advise SLG of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
SLG and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
Unless otherwise agreed to in writing by SLG, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
The Customer shall unconditionally ratify any actions taken by SLG under clauses 12.1 to 12.5.
Security and Charge
In consideration of SLG agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
The Customer indemnifies SLG from and against all SLG’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising SLG’s rights under this clause.
The Customer irrevocably appoints SLG and each director of SLG as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13 including, but not limited to, signing any document on the Customer’s behalf.
Defects and Returns
The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify SLG of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford SLG an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods is defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which SLG has agreed in writing that the Customer is entitled to reject, SLG’s liability is limited to either (at SLG’s discretion) replacing the Goods or repairing the Goods.
Goods will not be accepted for return other than in accordance with 14.1 above, and provided that:
SLG has agreed in writing to accept the return of the Goods; and
the Goods are returned at the Customer’s cost within seven (7) days of the delivery date; and
SLG will not be liable for Goods which have not been stored/refrigerated or used in a proper manner; and
the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
Unless otherwise agreed SLG will not accept the return of non-defective Goods for credit, broken seals or evidence of the Goods packaging being opened will not be considered for refund or credit.
Subject to clause 14.1, non-stocklist items or Goods made to the Customer’s specifications are not acceptable for credit or return.
For Goods not manufactured by SLG, the warranty shall be the current warranty provided by the manufacturer of the Goods. SLG shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
Consumer Guarantees Act 1993
If the Customer is acquiring Goods for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by SLG to the Customer.
Where SLG has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of SLG. Under no circumstances may such designs, drawings and documents be used without the express written approval of SLG.
The Customer warrants that all designs, specifications or instructions given to SLG will not cause SLG to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify SLG against any action taken by a third party against SLG in respect of any such infringement.
The Customer agrees that SLG may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which SLG has created for the Customer.
Default and Consequences of Default
Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at SLG’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
If the Customer owes SLG any money the Customer shall indemnify SLG from and against all costs and disbursements incurred by SLG in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, SLG’s collection agency costs, and bank dishonour fees).
Further to any other rights or remedies SLG may have under this contract, if a Customer has made payment to SLG, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by SLG under this clause 17 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this contract.
Without prejudice to SLG’s other remedies at law SLG shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to SLG shall, whether or not due for payment, become immediately payable if:
any money payable to SLG becomes overdue, or in SLG’s opinion the Customer will be unable to make a payment when it falls due;
the Customer has exceeded any applicable credit limit provided by SLG;
the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
Without prejudice to any other remedies SLG may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions SLG may suspend or terminate the supply of Goods to the Customer. SLG will not be liable to the Customer for any loss or damage the Customer suffers because SLG has exercised its rights under this clause.
SLG may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice SLG shall repay to the Customer any money paid by the Customer for the Goods. SLG shall not be liable for any loss or damage whatsoever arising from such cancellation.
In the event that the Customer cancels delivery of the Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by SLG as a direct result of the cancellation (including, but not limited to, any loss of profits).
Cancellation of orders for Goods grown to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
All emails, documents, images or other recorded information held or used by SLG is personal information as defined and referred to in clause 20.3 and therefore considered confidential. SLG acknowledges its obligation in relation to the handling, use, disclosure and processing of personal information pursuant to the Privacy Acts 1993 and 2020 (“the Act”) including Part II of the OECD Guidelines as set out in the Act. SLG acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customer’s personal information, held by SLG that may result in serious harm to the Customer, SLG will notify the Customer in accordance with the Act. Any release of such personal information must be in accordance with the Act and must be approved by the Customer by written consent, unless subject to an operation of law.
Notwithstanding clause 20.1, privacy limitations will extend to SLG in respect of Cookies where the Customer utilises SLG’s website to make enquiries. SLG 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 of personal information such as the Customer’s:
IP address, browser, email client type and other similar details;
tracking website usage and traffic; and
reports are available to SLG when SLG sends an email to the Customer, so SLG may collect and review that information (“collectively personal information”)
The Customer authorises SLG or SLG’s agent to:
access, collect, retain and use any information about the Customer;
(including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance 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 Customer’s creditworthiness; or
for the purpose of marketing products and services to the Customer.
disclose information about the Customer, whether collected by SLG from the Customer directly or obtained by SLG 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 Customer.
Where the Customer is an individual the authorities under clause 20.3 are authorities or consents for the purposes of the Privacy Acts 1993 and 2020.
The Customer shall have the right to request (by e-mail) from SLG, a copy of the personal information about the Customer retained by SLG and the right to request that SLG correct any incorrect personal information.
SLG will destroy personal information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this contract or is required to be maintained and/or stored in accordance with the law.
The Customer can make a privacy complaint by contacting SLG via e-mail. SLG will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within twenty (20) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Privacy Commissioner at http://www.privacy.org.nz.
Service of Notices
Any written notice given under this contract shall be deemed to have been given and received:
by handing the notice to the other party, in person;
by leaving it at the address of the other party as stated in this contract;
by sending it by registered post to the address of the other party as stated in this contract;
if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
if sent by email to the other party’s last known email address.
Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
If the Customer at any time upon or subsequent to entering in to the contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not SLG may have notice of the Trust, the Customer covenants with SLG as follows:
the contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
the Customer has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.
The Customer will not without consent in writing of SLG (SLG will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
the removal, replacement or retirement of the Customer as trustee of the Trust;
any alteration to or variation of the terms of the Trust;
any advancement or distribution of capital of the Trust; or
any resettlement of the trust property.
Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising hereunder, shall be submitted to, and settled by, arbitration in accordance with the Arbitration Act 1996 or its replacement(s).
The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the Nelson Courts of New Zealand.
SLG shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by SLG of these terms and conditions (alternatively SLG’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
SLG may licence and/or assign all or any part of its rights and/or obligations under this contract without the Customer’s consent.
The Customer cannot licence or assign without the written approval of SLG.
SLG may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of SLG’s sub-contractors without the authority of SLG.
The Customer agrees that SLG may amend these terms and conditions by notifying the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for SLG to provide Goods to the Customer.
Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on th