Terms and Conditions
“CGA” means the Consumer Guarantees Act 1993 and its amendments;
“Commercial Terms” means the commercial terms preceding these Conditions;
“Conditions” means these Terms and Conditions of Sale;
“Goods” means any goods supplied by NZ Knit to you, including as described in the Commercial Terms;
“GST” means goods and services tax in terms of the Goods and Services Tax Act 1985 and its amendments;
“NZ Knit” means NZ Knit Co Limited (Company No.1114184)
“PPSA” means the Personal Property Securities Act 1999 and its amendments.
“You” means the person, firm or body corporate, jointly and severally if there is more than one, acquiring the Goods particulars of which are detailed in the Commercial Terms.
2. Basis of Contract and Exclusivity
2.1 These Conditions apply exclusively to every contract for the sale of Goods by NZ Knit to you. These Conditions cannot be varied or supplanted by any other conditions including those that may be used by you or printed on your purchase order unless expressly accepted in writing by NZ Knit.
2.2 NZ Knit may vary or amend these Conditions by notice in writing to you at any time. Any variations or amendments will apply to orders placed by you after the date of the notice.
2.3 Except as provided in this clause 2, any amendment, variation or waiver of these Conditions will not be effective unless signed by you and NZ Knit.
2.4 You agree that during the Term (as defined in the Commercial Terms), NZ Knit shall be the exclusive supplier of the Goods to you. For the avoidance of any doubt, you shall exclusively purchase all your requirements for goods of the same or similar nature to the Goods from NZ Knit.
3. Price and Orders
3.1 The price payable by you in relation to the Goods ordered is the price prevailing at the date of dispatch and NZ Knit’s prices are subject to change without prior notice.
3.2 The cost of freight to the street address nominated in the Commercial Terms or to such other address nominated in your order, will be charged in addition to the price of the Goods
3.3 You will, unless otherwise agreed, pay in addition to the price of the Goods all GST and any other government duties, levies, or taxes, insurance charges in respect of the Goods.
3.4 You must place orders for Goods in writing detailing the required delivery date. An order is not accepted until NZ Knit notifies you in writing of acceptance.
3.5 Each accepted order will constitute a separate contract for the supply of the particular Goods on these Conditions.
3.6 NZ Knit’s price lists are not an offer to sell the Goods and NZ Knit reserves the right, either on account of lack of stock or for any other reason, to refuse to accept any order or any part of an order.
4.1 Unless NZ Knit has agreed to extend credit to you, you must pay in cash or by credit card in full upon delivery of the Goods.
4.2 Where NZ Knit has agreed to extend credit to you payment for Goods is to be made on the 20th of the month following the date of issue of NZ Knit’s invoice. Your payment is only made when funds have fully cleared through the banking system into NZ Knit’s bank account.
4.3 NZ Knit has the sole discretion to determine the amount of credit it will extend to you at any time. NZ Knit may cancel any order which has not yet been delivered and/or may withhold delivery of further orders if your account exceeds the credit limit NZ Knit sets or payment is not made by the due date.
4.4 You agree to pay for the Goods in full without deduction or setoff.
4.5 Notwithstanding clause 4.2 above, all payments shall immediately become due to NZ Knit if:
(a) You refuse to accept delivery of any Goods;
(b) NZ Knit reasonably believes that the information which you have provided in your application for credit is incorrect or no longer correct and you have failed to give NZ Knit correct information satisfactory to it within 5 days of its request;
(c) You sell or otherwise dispose of any Goods which have not been paid for without NZ Knit’s consent;
(d) You become insolvent or commit any act of bankruptcy;
(e) A receiver, liquidator or statutory manager is appointed over any of your assets or undertaking;
(f) You make or attempt to make an arrangement or composition with creditors; or
(g) if you fail to comply with any of the provisions of clause 8.
5. Payment Default
5.1 If you default in payment by the due date of any amount payable to NZ Knit, then all money which would become payable by you to NZ Knit at a later date on any account, becomes immediately due and payable without the requirement of any notice to you, and NZ Knit may, without prejudice to any other remedy available to it :
(a) charge you interest on any sum due at a rate of two and a half percent(2.5%) per calendar month for the period from the due date until the date of payment in full. The charging of default interest will in no way imply the granting or an extension of credit from NZ Knit to you;
(b) charge you for all expenses and costs (including legal costs on a solicitor-client basis and reasonable debt collection agency fees) incurred by it in taking whatever action it deems appropriate to recover any sum due;
(c) cease or suspend for such period as NZ Knit thinks fit, supply of any further Goods to you;
(d) by notice in writing to you, terminate any agreement with you so far as unperformed by NZ Knit;
(e) retain any deposit paid and apply it against any costs and expenses incurred by NZ Knit as a result of the default.
6. Risk and Delivery
6.1 Risk in the Goods and all insurance responsibility for theft, damage or otherwise in respect of the Goods will pass to you from the time they are delivered by a carrier to your address or your nominated address or collected by you or your agent.
6.2 Any period or date stated by NZ Knit for the collection or delivery of the Goods is intended as an estimate only and is not a contractual commitment. NZ Knit will use its best endeavours to meet any estimated dates but will in no circumstances whatsoever be liable for any loss or damage suffered by you or any third party for failure to meet any estimated date. Delay in delivery does not entitle you to cancel any order.
6.3 Where you ask NZ Knit to deliver Goods directly to another person, that person takes possession of the Goods for you as your agent, but you are still directly responsible to NZ Knit under these Conditions.
6.4 All claims for damage during delivery or non receipt of goods must be made to NZ Knit within 14 days of receipt of the Goods.
7. Retention of Title – Non PPSA Supplies
7.1 This clause 7 shall be applicable to supplies of Goods made by NZ Knit, (if any) to which the Personal Property Securities Act 1999 (“PPSA”) does not apply.
7.2 Notwithstanding any period of credit and that the Goods have been delivered to you, property and ownership in Goods remains with NZ Knit and will not pass to you until NZ Knit receives payment in full of the purchase price of the Goods and all other amounts you owe to NZ Knit for any reason.
7.3 Until property passes to you, you agree that:
(a) You will keep the Goods insured to their full insurable value against loss or damage in NZ Knit’s name as unpaid vendor;
(b) You hold the Goods as bailee for and are in a fiduciary relationship with NZ Knit;
(c) You will keep the Goods separate and readily identifiable while the Goods are in your possession or control; and
(d) If you have not paid in full for the Goods by the due payment date, NZ Knit or its agent(s) may, (in addition to NZ Knit other rights), enter your premises (or other premises to which you have access and where any of the Goods subject to these Conditions are stored) during normal business hours, without notice, and search for and recover the Goods.
7.4 Upon default in payment of the purchase price of the Goods by the due payment date NZ Knit will be entitled to take possession of and at NZ Knit’s discretion sell or otherwise dispose of the Goods removed, and credit any sale proceeds toward the moneys owed to NZ Knit by you without prejudice to any other remedy available to an unpaid vendor at law or equity.
7.5 NZ Knit is not liable for any damage caused to you or your premises in exercising its rights under this clause 7.
8. A Security Interest Created
8.1 For the purposes of the PPSA, you grant a security interest to NZ Knit in:
(a) All present and after acquired weft knitted jumpers, cardigans, vests and scarves; and
(b) Any Goods for which any of the Goods referred to in paragraph (a) of this clause 8.1 have been exchanged or traded or that have been acquired in lieu of those Goods;
sold or supplied by NZ Knit, to secure payment for the Goods (and any interest or other charges payable in relation to the Goods) and to secure all monies payable by you to NZ Knit at any time on any account. You further agree that NZ Knit’s security interest in the Goods extends to the Proceeds (as defined in clause 16 of the PPSA) of the Goods. You acknowledge that the security interest will continue until NZ Knit provides you with a final release.
8.2 NZ Knit may at its sole discretion and in such manner as it determines allocate payments made by you to outstanding amounts due in relation to any Goods supplied by NZ Knit.
8.3 Until payment is made you:
(a) Will, where the Goods have been purchased for resale, store the Goods separately from Goods not supplied by NZ Knit.
(b) Will not move the Goods outside New Zealand and will not do or omit to do, or allow to be done or omit to be done, anything which could adversely affect the Goods or the security interest created by these Conditions.
8.4 To the extent permitted by law, if you default under these Conditions or under any other payment obligation to NZ Knit:
(a) Each security interest created in favour of NZ Knit will become immediately enforceable.
(b) NZ Knit may, at any time, by notice to you declare all or any part of the moneys owing by you to be due and payable immediately, upon demand or at a later date as NZ Knit may specify.
(c) NZ Knit may:
(i) Take possession of and either sell or retain the Goods;
(ii) Pay any expenses incurred in the exercise of any such powers out of the revenue from, or proceeds of realisation of, the Goods.
(iii) Appoint a receiver in respect of any Goods (without your consent) and any receiver is authorised to do anything referred to in these Conditions and otherwise to exercise all rights and powers conferred on a receiver by law.
(d) You will pay all of NZ Knit’s costs, losses and other liabilities (including legal expenses on a solicitor-client basis) incurred or sustained by NZ Knit in connection with the exercise, enforcement or preservation, or attempted exercise, enforcement or preservation, of any right arising pursuant to the security interest granted under these Conditions.
(e) NZ Knit:
(i) has the rights of a natural person in relation to the Goods;
(ii) has all other rights conferred by law (including under Part 9 of the PPSA) in relation to the Goods; and
(iii) may, in your name or otherwise, at any time, do anything that you could do in relation to the Goods.
8.5 Nothing expressed in the other provisions of this clause 9 limits or otherwise adversely affects NZ Knit’s rights under the PPSA.
8.6 Where NZ Knit takes possession of the Goods, it may sell the Goods by any means at any time and from any sale proceeds, deduct all costs incurred in connection with the sale and all monies owed (even if not due and payable) to NZ Knit by you on any account (to the extent to which NZ Knit has priority over any other interested parties). NZ Knit may recover from you any shortfall on any sale or attempted sale.
8.7 You waive your rights:
(a) Under Section 114(1)(a) of the PPSA, to receive a Notice of Intention to Sell;
(b) Under Section 116 of the PPSA, to receive a Statement of Account;
(c) Under Section 120(2) of the PPSA, to receive notice of any proposal of NZ Knit to retain collateral;
(d) Under Section 121 of the PPSA, to object to any of NZ Knit’s proposals to retain collateral;
(e) Under Section 125 of the PPSA, to not have Goods damaged if NZ Knit removes an accession;
(f) Under Section 129 of the PPSA, to receive notice of the removal of an accession;
(g) Under Section 131 of the PPSA, to apply to the Court for an order concerning the removal of an accession;
(h) Under Section 132 of the PPSA, to redeem collateral, if NZ Knit has sold the collateral, or if NZ Knit is deemed to have taken any collateral in satisfaction or part-satisfaction of your obligations;
(i) Under Sections 133 and 134 of the PPSA, to reinstate the Security Agreement; and
(j) To receive a copy of the Verification Statement or a Financing Change Statement relating to NZ Knit’s security interest.
8.8 If you change your name, you must give written notice to NZ Knit of your new name 1 week prior to the effective date of the change.
8.9 If requested by NZ Knit, you must promptly do all things (including signing any document) and provide all information necessary to enable NZ Knit to perfect and maintain the perfection of any and each security interest granted to NZ Knit by you (including by registration of a Financing Statement).
8.10 Within 2 working days of a written request from NZ Knit, you must supply NZ Knit with copies of all security interests registered over your personal property. You authorise NZ Knit and its agent(s) to request information from any secured party relating to any security interest which is held in any personal property that is or has been in your possession or control.
8.11 You will pay all reasonable costs, including legal costs on a solicitor-client basis, associated with the discharge or amendment of any financing statement registered by NZ Knit, whether or not the change was initiated by you.
9.1 NZ Knit warrants that the Goods it supplies to you are free of defective materials, defective workmanship and comply with any sample provided to you for the period of 6 months from the date of invoice. This warranty is the only warranty NZ Knit gives.
9.2 Any warranty does not apply in circumstances where:
(a) the Goods are not defective;
(b) the Goods were used for a purpose other than for which they were intended;
(c) the Goods were repaired, modified or altered by any person other than NZ Knit;
(d) the defect has arisen due to misuse, neglect or accident;
(e) the Goods have not been stored or maintained as recommended by NZ Knit;
(f) the defect has arisen due to normal wear and tear on the Goods; or
(g) you are in breach of these Conditions.
9.3 If it appears to you that the goods are defective or the workmanship is faulty under proper and normal conditions of use within one month from the date of delivery, you must:
(a) Make a written complaint to NZ Knit;
(b) NZ Knit must be satisfied the goods are defective or the workmanship is faulty; and
(c) NZ Knit must be given the opportunity to rectify the defect or fault.
9.4 In the case of defective goods, NZ Knit agrees to remedy such defects if you return the defective item to NZ Knit with freight paid both ways.
10.1 The CGA shall not apply to any contract for the sale of Goods to you where you acquire or hold yourself out as acquiring NZ Knit’s Goods for the purposes of a business.
10.2 Subject to clause 10.1, to the maximum extent permitted by law, except as specifically set out in these conditions, all terms, conditions or warranties in respect of the quality, merchantability, fitness for purpose, condition, description, assembly, manufacture, design or performance (or otherwise) of the Goods supplied by NZ Knit to you, whether implied by statute, common law, law merchant, trade usage, custom or otherwise, are expressly excluded from the contract created by these Conditions.
10.3 If, notwithstanding clause 10.2, you are proven at law to have a valid claim for damages against NZ Knit (it being the intention that no such damages may be recovered) then, to the maximum extent permitted by law, NZ Knit’s liability to you in respect of each supply of Goods will be limited to the purchase price of the Goods supplied to you in the transaction concerned. NZ Knit, its employees, contractors and agents will not otherwise be liable to you for damage to, loss of, or deterioration of Goods, however that loss, damage or deterioration is caused or arises.
10.4 NZ Knit will not in any circumstances be liable for any costs (including costs of returning the Goods to NZ Knit) indirect or consequential losses or expenses suffered by you or any third party, caused by or arising from delays in delivery, NZ Knit’s negligence, or otherwise (including a failure to do something which should have been done or to prevent something from happening), including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, whether or not NZ Knit had knowledge that such losses might be incurred.
10.5 Nothing in these Conditions is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any legislation applicable to the sale of Goods which cannot lawfully be excluded, restricted or modified.
10.6 Where you purchase any Goods for re-supply as, or incorporation into, Goods ordinarily acquired for personal household or domestic use or consumption (“Consumer Goods”) you warrant that:
(a) If you supply the Consumer Goods directly to an end user/consumer you will do so using terms and conditions of supply which exclude liability for any claims under the CGA; and
(b) If you acquire the Goods for re-supply, you will ensure that your customer and each person in the distribution chain will exclude liability in your contract for supply for any claims under the CGA but in each case only where the end user/consumer acquires the Consumer Goods for business purposes, and you agree to indemnify NZ Knit against any failure by you, your customers or any persons in the distribution chain to properly contract out of liability to business end users/consumers under the CGA.
10.7 You indemnify NZ Knit against all liabilities and costs (including legal costs on a solicitor-client basis) expenses, losses, damages or claims arising in any way as a result of your failure to comply with any part of these Conditions.
11.1 If, through circumstances beyond the control of NZ Knit, NZ Knit is unable to supply the Goods, then NZ Knit may cancel your order (even if it has already been accepted) by notice in writing to you. NZ Knit will be under no liability to you or any third party for any damages or losses, direct or indirect, resulting from such cancellation.
11.2 No purported cancellation or suspension of an order or any part thereof by you is binding on NZ Knit after that order has been accepted by NZ Knit.
12. Change of Ownership
12.1 If you are a company, you warrant to NZ Knit that there will be no change to the management or control of your company without prior written notification to NZ Knit. You agree that NZ Knit may in the event of any change to the management or control of your company require further credit support for your obligations under these Conditions, and you agree to make the further credit support available to NZ Knit upon being requested to do so. Any failure to provide such further credit support at NZ Knit’s request will be treated as a breach of these Conditions by you.
13.1 For the purpose of facilitating the efficient running of NZ Knit’s business, you authorise NZ Knit to:
(a) Collect all information NZ Knit will require from any third parties and authorises those third parties to release the information to NZ Knit;
(b) Hold all the information provided by you or any third parties to NZ Knit;
(c) Use the information provided including giving the information to any other person to facilitate the collection of debts from you.
13.2 Your information will be collected, held and used by NZ Knit on the condition that:
(a) it will be held at NZ Knit’s office;
(b) it will be accessible to any of NZ Knit employees and agents who need to access the information for the efficient running of NZ Knit’s business; and
(c) you may request access to and correction of the information held by NZ Knit at any time.
14.1 If NZ Knit fails to enforce any terms or to exercise its rights under these Conditions at any time, NZ Knit has not waived those rights.
14.2 If any provision of these Conditions is held to be invalid or unenforceable for any reason, the remaining provisions shall remain in full force and effect and the parties shall adjust their respective rights and obligations in accordance with the spirit and intent of the parties as shown by these Conditions.
14.3 These Conditions will be governed by and construed in accordance with the laws of New Zealand. In relation to any legal action or proceedings arising out of or in connection with these Conditions, (“Proceedings”) each party irrevocably submits to the exclusive jurisdiction of the Courts of New Zealand and waives any objections to the proceedings in any such Court on the grounds of venue or on the grounds that the Proceedings have been brought in an inconvenient forum.
15. Intellectual Property and Materials
15.1 If NZ Knit has at any time (including prior to the commencement of the Term or in connection with any previous supply of any goods to you) designed, drawn, written or otherwise created the whole or any part of any idea, plan or concept of the Goods for you including, without limitation, by creating or devising the layout, design, colour combination, fabric or composition of the Goods (NZ Knit Items), you acknowledge and agree that all right, title and interest in and to the copyright and other intellectual property in those NZ Knit Items and any developments shall remain and vest exclusively with NZ Knit (NZ Knit IP). You shall execute all documents and otherwise do all things reasonably requested by NZ Knit to perfect NZ Knit’s ownership of the NZ Knit IP. You shall be entitled to receive the benefit of the NZ Knit IP solely through the supply of Goods to you by NZ Knit. You shall not otherwise have the right to use or grant any other party the right to use the NZ Knit IP (whether during the term of supply by NZ Knit or after the cessation of supply) including, without limitation, any other supplier to you of any goods.
15.2 You warrant that all designs or instructions supplied by you to NZ Knit including, without limitation, any badges or logos to be applied to the Goods (Customer Items) will not cause them to infringe any patent, registered design, trade mark or other intellectual property in the execution of your order or supply of Goods and you agree to indemnify NZ Knit against any action taken by a third party in respect of any such infringement including all liabilities and costs (including legal costs on a solicitor-client basis) expenses, losses or damages arising from such action. You grant NZ Knit an exclusive, royalty free licence to use the Customer Items for the purpose of manufacturing and supplying the Goods to you.
15.3 You acknowledge and agree that in order for NZ Knit to supply Goods in a timely fashion it may be necessary for NZ Knit to hold stocks of specific yarn or other raw material required to manufacture the Goods (Materials). In consideration of NZ Knit purchasing and holding the Materials, you agree that you will not request any change in the colour or style of the Goods or change to a supplier other than NZ Knit unless you have provided six months’ prior notice of any such change to NZ Knit (Notice Period). If at the end of the Notice Period NZ Knit has any Materials remaining in NZ Knit’s possession that it has been unable to use for another purpose, you shall on demand reimburse NZ Knit for the cost of the Materials.