Terms and Conditions of Purchase
1 DEFINITIONS
DB means DB Breweries Limited (New Zealand company number 71013);
Encumbrance means any mortgage, charge, lien, or security interest of any type;
Goods means the goods, and associated services (if any), described in the Purchase Order;
Intellectual Property means copyright, patents, registered and unregistered trade marks, registered and unregistered designs, circuit layouts, confidential information, rights in computer software, and all other rights anywhere in the world resulting from intellectual activity;
Purchase Order means (as the context requires) DB's standard Purchase Order form, or the purchase order provided by DB to the Seller in respect of the purchase of the Goods; and
Seller means the person selling the Goods to DB, as specified in the Purchase Order.
2 APPLICATION
2.1 By supplying or agreeing to supply the Goods to DB, the Seller agrees that:
(a) DB's obligation to buy and take delivery of the Goods will not arise until DB has delivered to the Seller a Purchase Order for the Goods;
(b) any terms and conditions of sale contained in any agreement, invoice, sale document, quotation or other document provided by the Seller to DB will not apply, to the extent that they are inconsistent with the Purchase Order provided by DB and/or these terms and conditions; and
(c) it complies with Asia Pacific Breweries Limited’s Code of Compliance for Vendors.
2.2 No amendments to these terms and conditions will be effective unless they are agreed in writing by the parties.
3 Price
3.1 Unless agreed otherwise in writing by DB, all prices include goods and services tax, any other taxes, import duties or other levies or tariffs, delivery costs (including all packing, freight and insurance charges), and all other costs.
3.2 Unless agreed otherwise in writing by DB, prices are fixed and will not increase.
3.3 DB will make all payments to the Seller in New Zealand dollars (NZD), unless the parties agree otherwise in writing. Where any amount payable to the Seller is expressed in a currency other than NZD, it will be converted to NZD in accordance with DB's normal banking procedures on the date that DB pays the Seller's invoice for the Goods (or if that date is not a trading day, then on the next trading day).
4 DELIVERY
4.1 The Seller will deliver the Goods to the delivery address and at the time specified in the Purchase Order.
4.2 Delivery may take place in instalments only if agreed by DB in writing.
4.3 The Seller must provide DB with adequate advance notice of any:
(a) instructions or other information required to enable DB to accept full and proper delivery of the Goods; and
(b) (if applicable) any safety, health or environmental hazards associated with the Goods, including safety of operation, storage, handling and disposal instructions.
4.4 Upon delivery, the Goods must be properly labelled. If applicable, the label will identify the Goods' components or ingredients, hazard warnings and the full name and contact details of the manufacturer or importer.
4.5 The Seller will ensure that the Goods are properly packed, and arrive at the delivery address in the same (or, in the case of perishable loads, substantially the same) condition as when they were packed.
4.6 DB will not be obliged to return or pay for any pallets, cases, containers or other similar items used by the Seller for packing/delivering the Goods, unless it agrees in writing to do so.
5 INSPECTION AND RISK
5.1 Title and risk in the Goods pass to DB upon delivery of the Goods to DB.
5.2 DB reserves the right to:
(a) inspect any delivered Goods within 5 working days from delivery; and
(b) reject any delivered Goods:
(i) that do not comply with clause 4; or
(ii) in accordance with clause 7.1(b).
6 PAYMENT TERMS
6.1 DB will not be required to pay a deposit to the Seller unless this is specified in the Purchase Order.
6.2 Each invoice submitted by the Seller to DB must be a valid tax invoice for GST purposes and specify the Goods supplied.
6.3 Each invoice received by DB for Goods supplied by the Seller in accordance with these terms and conditions will be payable on or before the 30th day of the month following the month in which the invoice was received by DB.
7 CANCELLATION AND OTHER RIGHTS
7.1 DB will be entitled (at its sole discretion) to:
(a)cancel or amend any order for Goods if the Seller:
(i) does not deliver the Goods to DB in accordance with clause 4 or is in material breach of any other of these terms and conditions;
(ii) goes into liquidation, dissolves or becomes bankrupt, or otherwise ceases or threatens to cease to carry on business; or
(iii) receives notice from DB no less than 2 working days prior to the scheduled delivery date that DB wishes to cancel or amend the order; or
(b) reject all or any Goods where the Seller breaches any warranties under clause 10 or any other of these terms and conditions relating to those particular Goods. If it does so, DB may, at its option, require the Seller to provide replacement Goods as soon as possible to replace the rejected Goods.
7.2 Any costs (including all packing, freight and insurance charges) incurred by DB in returning any rejected Goods to the Seller, and (if applicable) any refunds of payments made to the Seller for the rejected Goods, will be payable by the Seller to DB within 10 working days of the date of delivery.
8 INSURANCE
8.1 The Seller will effect and maintain appropriate insurance for the Goods (including in relation to their delivery and storage):
(a) from the time that DB orders the Goods to when title and risk in the Goods passes to DB in accordance with clause 5.1;
(b) with a reputable insurer;
(c) for their full replacement value; and
(d) otherwise upon standard terms.
8.2 The Seller will, upon DB's written request, provide DB with written evidence of the Seller's compliance with its obligations under clause 8.1.
9 CONSUMER GUARANTEES ACT 1993
DB acknowledges that the supply of Goods by the Seller under these terms and conditions is a supply for business purposes in terms of section 2 and 43 of the Consumer Guarantees Act 1993 (Act), and accordingly the provisions of the Act do not apply to any supply of Goods made under these terms and conditions.
10 MANUFACTURERS' WARRANTIES
Upon or as soon as possible following delivery, the Seller will transfer to DB the benefit of all unexpired manufacturers' warranties for the Goods, provided that if and to the extent that the benefit of any manufacturers' warranties are not transferred to DB, the Seller will hold them on trust for the benefit of DB and its successors in title and/or assignees absolutely, with effect from delivery until the expiry of the relevant warranty.
11 WARRANTIES
11.1 The Seller warrants to DB that:
(a) it has and upon delivery will have full beneficial interest in, and good and marketable title to, the Goods;
(b) it has not created, agreed to create or allowed to arise any Encumbrance over any of the Goods and is not aware of the likelihood of any such Encumbrance;
(c) no receiver or manager of all or any of the Goods has been appointed or is threatened or expected to be appointed, and there is no unsatisfied judgment or award outstanding against the Seller concerning any of the Goods or their components;
(d) it will comply with all relevant laws in connection with the supply of the Goods;
(e) the Goods will be fit for their particular purpose;
(f) the Goods will correspond with their description (where supplied by reference to a description) or sample (where supplied by reference to a sample) and the required specifications as stated in the Purchase Order;
(g) the Goods will be free from all known defects and faults;
(h) the Goods will be in the same (or, in the case of perishable loads, substantially the same) condition upon delivery as when they were packed;
(i) the possession or use of the Goods by DB will not infringe the Intellectual Property rights of any third party;
(j) (if applicable) the Goods will conform to the manufacturer's original specifications, and no modifications, alterations or additions have been made to the Goods other than by or at the direction of the manufacturer; and
(k) (if applicable) all relevant manuals, operating instructions and other documents are included with the Goods.
11.2 Nothing in these terms or conditions has the effect of excluding or limiting any warranty or condition that may be implied by law into these terms and conditions.
12 INDEMNITY
The Seller indemnifies DB against all losses, damages and costs suffered or incurred by DB arising out of the breach of any of the Seller's obligations contained or implied in these terms and conditions.
13 FORCE MAJEURE
Neither party (First Party) will be liable for any act, omission or failure by it under these terms and conditions if that act, omission or failure results directly from an event or circumstances beyond the reasonable control of the First Party, provided that:
13.1 whenever the First Party becomes aware that such a result has occurred or is likely to occur, the First Party will notify the other party of this in writing;
13.2 each party will continue to use its best endeavours to perform its obligations under these terms and conditions; and
13.3 neither party will be deemed to have accepted any liability to pay or share any extra costs which may be incurred by the other party in complying with this clause or otherwise resulting from such act, omission or failure.
14 DISPUTES
14.1 Either party may, at any time while there is a genuine dispute relating in any way to these terms and conditions, give a written notice to the other party specifying the subject matter of the dispute.
14.2 Within 14 days of the relevant party's receipt of notification of a dispute, a representative of each party authorised to resolve the dispute, will meet (in person or otherwise and at least once) in an to attempt to resolve the dispute.
15 GENERAL
15.1 In the event of any inconsistency between any of the following documents, they will have precedence in the following order of priority:
(a) the Purchase Order;
(b) these terms and conditions.
15.2 These terms and conditions are governed and construed in accordance with the domestic law of New Zealand, except that the Sale of Goods (United Nations Convention) Act 1994 will not apply. The parties submit to the non-exclusive jurisdiction of the New Zealand courts in respect of all matters relating to these terms and conditions.
15.3 Headings are inserted for convenience and will not affect the construction of these terms and conditions. The singular includes the plural and vice versa. References to any party include that party's successors and permitted assignees, to a person include an individual, company or corporation, and to clauses are to clauses in these terms and conditions. The term includes or including (or any similar expression) is deemed to be followed by the words without limitation.
15.4 The Seller will not appoint any subcontractors to discharge any of its obligations under these terms and conditions without DB's prior written consent. If, having obtained DB's prior written consent, the Seller appoints a subcontractor under these terms and conditions, the Seller will at all times remain primarily liable to DB for its subcontractor's acts and omissions.
15.5 If any provision of these terms and conditions is or becomes invalid or unenforceable, that provision will be deemed deleted from these terms and conditions. The invalidity or unenforceability of that provision will not affect the other provisions of these terms and conditions, all of which will remain in full force and effect to the extent permitted by law, subject to any modifications made necessary by the deletion of the invalid or unenforceable provision.
15.6 These terms and conditions and any Purchase Order record the entire understanding and agreement of the parties relating to the matters dealt with in these terms and conditions. They supersede all previous understandings or agreements (whether written, oral or both) between the parties relating to these matters.