Terms of trade


The following export terms and conditions of sale (‘Terms’) shall apply except when altered by express agreement in writing between the buyer (‘Buyer’) and Wildfish Export Limited (‘Seller’).

 

1. ORDERING AND DOCUMENTATION

a. By engaging with the Seller via e-mail, phone or other means of communication for the procurement or supply of goods (including volume, price and type)                           (‘Anticipated Order’), the Buyer agrees that these Terms apply to the exclusion of any and all other terms.

b. The Seller will issue a pro-forma invoice (‘Pro-forma Invoice’) to the Buyer reflecting each Anticipated Order. The Pro-forma Invoice will include details of the goods, volume and price of the order, as well as the deposit the Buyer is required to pay the Seller (‘Deposit’) in order to confirm the Anticipated Order. The Buyer must pay the Deposit within seven (7) days of the date the Pro-forma Invoice is issued to accept the Anticipated Order (‘Accepted Order’).

c. Where any Accepted Order includes packaging and/or label requirements in respect of the goods, the Seller will email the Buyer a copy of the intended packaging and/or labelling for approval. The Buyer must confirm its approval of such packaging and/or labelling by sending an email (or message on another agreed platform) to the Seller confirming the same. The Seller shall have no liability for the accuracy or compliance of any such labels or packaging with any applicable laws nor in relation to the distribution, sale, use or consumption of the goods. The Buyer indemnifies the Seller for any loss suffered by the Seller in connection with any claim that any packaging or label supplied by the Seller is not adequate, accurate, does not comply with law or is false, misleading or deceptive.

d. Following payment of the Deposit and loading of the goods to the shipping container, the Seller will prepare draft export documents (‘Export Documents’) for each Accepted Order and will send the Export Documents to the Buyer for review and approval. The Export Documents will include a final invoice for the balance due on each Accepted Order.

e. Following any requested amendments and/or additions to the Export Documents by the Buyer, the Buyer must confirm its acceptance and approval of the terms of the Export Documents within three (3) days of issue by either signing the Export Documents and emailing a signed copy of the Export Documents to the Buyer, or by sending an email (or message on another agreed platform) to the Seller confirming its acceptance of the Export Documents with specific reference to the Accepted Order number (as recorded on the Pro-forma Invoice and Export Documents).

f. It is the Buyer’s sole responsibility to ensure the Export Documents contain all documentation required in respect of each Accepted Order (including but not limited to customs clearance and import documentation required on arrival) unless otherwise agreed in writing.

g. Once the Buyer has confirmed its acceptance of the Export Documents the order is confirmed (a ‘Confirmed Order’), and the Buyer is bound to pay the balance of the total price set out in the Pro-forma Invoice (‘Balance’). If the Buyer has not confirmed the Export Documents within  five (5) days of issue by the Seller, the Accepted Order shall be deemed to be a Confirmed Order on the terms set out in the relevant Export Documents.

h. Payment of the Balance must be made within five (5) days of a Confirmed Order but no less than two (2) working days prior to arrival of a container at the destination port.

i. The Buyer may not cancel or amend any Confirmed Order without the Seller’s prior written consent. Any amendment or cancellation is on terms specified by the Seller.

j. All duties, taxes and other official charges imposed by any jurisdiction other than New Zealand are the responsibility of the Buyer.

 

2. PAYMENT

a. Payment of the Deposit is due seven (7) days from the date the relevant Pro-forma Invoice is issued, and payment of the Balance is due five (5) days from the date of the Confirmed Order, unless otherwise agreed in writing.

b. If the Buyer fails to comply with any of its obligations under these Terms, the Seller may suspend or cancel the Accepted Order(s) and/or Confirmed Order(s) which the Buyer’s breach(es) relate to, and all amounts owing under such orders will become due and payable.

c. The Buyer may not withhold payment or make deductions from any amounts owing from the Buyer to the Seller and the Buyer will have no right of set off or counterclaim.

 

3. RISK,OWNERSHIP & DELIVERY

a. Risk of any loss, damage, or deterioration of the goods shall pass to the Buyer upon delivery. Delivery is determined in accordance with the CIF ICC Incoterm 2020, unless otherwise agreed in writing in an Accepted Order.

b. Any indicated delivery times are an estimate only, and the Seller will not be liable for failure to meet such timeframes.

c. Title in the goods remains with the Seller until the Buyer has paid for the goods in full.

d. The Buyer acknowledges that it is responsible for maintaining insurance for the goods while these are at its risk.

e. The Buyer is responsible for any certification, registration and documentation in respect of the goods and/or Buyer’s ability to accept the goods in accordance with any customs, clearance or other requirements on delivery, unless otherwise agreed in writing.

 

4. COMPLIANCE

a. The Buyer shall examine and inspect the goods for non-conformity promptly (and no later than two (2) – five (5) days) following delivery.

b. Following any inspection, where the Buyer contends that the goods do not conform or comply with the Confirmed Order, it shall promptly (within two (2) – five (5) days) notify the Seller of the alleged non-compliance in writing and include relevant evidence or details.

c. Any right which the Buyer may have to reject the alleged non-conforming or defective goods shall only be effective if the Buyer notifies the Seller in writing within five (5) days following delivery.

d. The Seller and Buyer will work together in good faith to promptly investigate any alleged non-compliance, and pending resolution, the Buyer:

i. agrees not to supply or resell the goods to any person or entity;

ii. will ensure that the goods are stored in secure and appropriate conditions and are not subject to deterioration;

iii. will provide all reasonable assistance to the Seller in relation to the allegation; and

iv. agrees not to give, permit or allow any other person to have or acquire a security interest in the goods.

 

5. LIABILITY

a. To the maximum extent permitted by law, the Seller shall have no liability, and the Buyer shall have no recourse against the Seller, in respect of any Confirmed Order unless the relevant goods are reasonably determined on delivery to be non-compliant with the Confirmed Order, in accordance with these Terms.  In the case of non-compliance, the Seller’s liability shall, in all circumstances, be expressly limited, at the Seller’s discretion, to the replacement of non-conforming goods or a refund of the price of the non-conforming goods.

b. Non-complying goods shall not be returned to the Seller unless the Seller has given its approval to such return in writing.  If the Seller agrees to accept non-complying goods for return, any return shall be on the Seller’s terms and the Buyer agrees to comply with the Seller’s reasonable directions in relation to such return.

c. The Seller shall not be liable for any indirect or consequential or economic loss, cost or damage suffered or incurred by the Buyer arising directly or indirectly from the supply of goods or any act or omission of the Seller including without limitation, any loss of anticipated revenues and/or reputational loss/damage.

d. Despite clause 5.a, the Seller’s maximum liability for all claims by the Buyer against the Seller arising directly or indirectly out of the supply of goods by the Seller to the Buyer is limited to the total amount paid by the Buyer to the Seller under the Pro-forma Invoice for the relevant supply.

e. The Seller makes no warranty of any kind, either express or implied, including (without limitation) any warranty of fitness for a particular purpose or merchantability.

 

6. TERMINATION

a. The Seller may terminate the Terms and/or any Accepted Order, Export Documents or Confirmed Order immediately by notice in writing if:

i. the Buyer breaches any material provision of these Terms and the breach is not capable of being remedied;

ii. the Buyer breaches any material provision of these Terms and, if the breach is capable of being remedied, it is not remedied within 10 days of notice to do so; or

iii. if the Buyer becomes insolvent or is wound up or goes into liquidation (voluntarily or otherwise) (or anything analogous to this occurs in any jurisdiction).

b. Termination does not affect any accrued rights or remedies of either party.Upon termination the Buyer will pay the Seller for all goods that have been supplied by the Seller up to the effective date of termination.

 

7. FORCEMAJEURE

a. The Seller shall not be liable for any delay or failure in complying with any obligation imposed on it under these terms or for any loss or damage (including indirect or consequential loss or damage) if the failure or delay arises from a cause unforeseeable or beyond the Seller’s control. Such cause to include but not be limited to acts of god, fire, storm, flood, earthquake, armed conflict, pandemic, government or public authority regulatory action, failure of equipment or transportation accident

b. If any shipment of these goods or part thereof is prevented or delayed for more than 20 days by any event to which clause 7.a applies, either the Seller or the Buyer, without liability to the other party, shall be entitled to cancel the relevant order of goods by giving the other written notice.

c. Notwithstanding clause 7.b, shipments dispatched from the Seller’s loading premises cannot be cancelled.

 

8. INTELLECTUALPROPERTY

a. The Buyer acknowledges and agrees that the Buyer acquires no intellectual property rights in any goods provided by the Seller to the Buyer (including any specifications, know how, trade secrets, formulations, methodologies, recipes, and any other technical or other information provided by the Seller).

b. Any technical information, knowledge, commercial information or processing methods, at any time transmitted either orally or in writing by the Seller, including anything captured by clause 8.a, will remain the property of the Seller and will be considered confidential and will not be used, disclosed or distributed by the Buyer for any purpose without the prior written consent of the Seller.

 

9. DISPUTE RESOLUTION

a. If a dispute arises in relation to these Terms, the parties must first use all reasonable endeavours to attempt to resolve the dispute in good faith amongst themselves.

b. If the parties have not resolved the dispute after 20 days from the date of a meeting held pursuant to clause 9.a, then before pursuing any other remedies either party must refer the dispute to mediation in Wellington, New Zealand.

c. If the parties have not resolved the dispute within 10 days of the mediation, each party may pursue all other remedies that are available to it.

d. Nothing in this clause 9 affects the right of a party to seek urgent injunctive relief where necessary.

 

10. GENERAL

a. The Seller reserves the right to update these terms and conditions at any time. Any orders submitted by the Buyer will be on the Terms in effect at the time the order is placed.

b. If the Seller exercises or fails to exercise any right or remedy available to it, this shall not prejudice the Seller’s rights in exercising that or any other right or remedy.

c. The Buyer may not transfer or assign its rights under any Accepted or Confirmed Order or these Terms to anyone else without the Seller’s prior consent in writing.

d. If any provision of these Terms shall be invalid, void or illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

e. These terms are governed by, and shall be construed in accordance with, the laws of New Zealand. The parties agree that the courts of New Zealand shall have the non-exclusive jurisdiction to hear any disputes that arise.

f. The Buyer agrees that the United Nations Conventions on Contracts for the International Sale of Goods do not apply.

 

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