“Be Fresh” means Be Fresh NZ Ltd, its successors and assigns or any person acting on behalf of and with the authority of Be Fresh NZ Ltd.
“Client” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
“Goods” means all Goods or Services supplied by the Be Fresh to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
“Price” means the Price payable for the Goods as agreed between the Be Fresh and the Client in accordance with clause 5
The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for Goods, or accepts Delivery.
These terms and conditions may only be amended with the Be Fresh’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and the Be Fresh.
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.
The Client acknowledges that the Be Fresh gives no warranty or representation that:
the Goods are appropriate, permissible or available for use outside of New Zealand, and if the Client chooses to on-sell or use the Goods in locations outside of New Zealand, it does so on its own initiative and are responsible for:
ensuring that such use in that country is legal;
the consequences and compliance with all applicable laws, regulations, by-laws, codes of practice, licences, registrations, permits and authorisations (including any laws that relate to businesses supplying goods).
These terms and conditions may be meant to be read in conjunction with the Be Fresh’s Hire Agreement, and:
where the context so permits, the terms ‘Goods’ or ‘Services’ shall include any supply of any Unit, as defined therein; and
if there are any inconsistencies between the two documents then the terms and conditions contained therein shall prevail.
Change in Control
The Client shall give the Be Fresh not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by the Be Fresh as a result of the Client’s failure to comply with this clause.
Unless otherwise limited as per clause 2, the Client agrees that should the Client introduce any third party to the Be Fresh as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Goods, and/or to request any variation thereto, on the Client’s behalf (such authority to continue until all requested Goods have been delivered, or the Client otherwise notifies the Be Fresh in writing that said person is no longer the Client’s duly authorised representative).
In the event that the Client’s duly authorised representative, as per clause 1, is to have only limited authority to act on the Client’s behalf then the Client must specifically and clearly advise the Be Fresh in writing of the parameters of the limited authority granted to their representative.
The Client specifically acknowledges and accepts that they will be solely liable to the Be Fresh for all additional costs incurred by the Be Fresh (including the Be Fresh’s profit margin) in providing any Goods, or variation/s thereto, requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 2 (if any)).
Price and Payment
At the Be Fresh’s sole discretion the Price shall be either:
as indicated on any invoice provided by the Be Fresh to the Client; or
the Price as at the date of Delivery, according to the Be Fresh’s current price list; or
the Be Fresh’s quoted price (subject to clause 2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
The Be Fresh reserves the right to change the Price if a variation to the Be Fresh’s quotation is requested.
At the Be Fresh’s sole discretion, a non-refundable deposit may be required on request.
Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by the Be Fresh, which may be:
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 twenty (20) days following the end of the month of the date of any invoice/s and/or statement furnished to the Client by the Be Fresh.
Payment may be made by cash, cheque, bank cheque, or by any other method as agreed to between the Client and the Be Fresh.
Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to the Be Fresh an amount equal to any GST the Be Fresh must pay for any supply by the Be Fresh under this, or any other agreement, for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client 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 the Goods (“Delivery”) is taken to occur at the time that the Client (or the Client’s nominated carrier) takes possession of the Goods at the Be Fresh’s premises.
At the Be Fresh’s sole discretion, the cost of Delivery is in addition to the Price.
The Be Fresh 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 or date given by the Be Fresh to the Client is an estimate only. The Client must still accept Delivery, even if late, and the Be Fresh will not be liable for any loss or damage incurred by the Client as a result of Delivery being late.
Risk of damage to or loss of the Goods passes to the Client on Delivery, and the Client 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 Client, the Be Fresh is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Be Fresh is sufficient evidence of the Be Fresh’s rights to receive the insurance proceeds without the need for any person dealing with the Be Fresh to make further enquiries.
If the Client requests the Be Fresh to leave Goods outside the Be Fresh’s premises for collection then such Goods shall be left at the Client’s sole risk.
The Client acknowledges and agrees that it will only use media (which are bag/blanket filters containing Ethylene Control filter media) supplied by the Be Fresh in any Ethylene Control unit supplied by the Be Fresh. In the event the Client contravenes this clause, the Be Fresh shall be indemnified from any liability under clause 11.
The Be Fresh and the Client agree that ownership of the Goods shall not pass until:
the Client has paid the Be Fresh all amounts owing to the Be Fresh; and
the Client has met all of its other obligations to the Be Fresh.
Receipt by the Be Fresh 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, and until then the Be Fresh’s rights and ownership in relation to the Goods, and this agreement, shall continue.
It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 1:
the Client is only a bailee of the Goods, and must return the Goods to the Be Fresh on request.
the Client holds the benefit of the Client’s insurance of the Goods on trust for the Be Fresh, and must pay to the Be Fresh the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
the Client 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 Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for the Be Fresh and must pay or deliver the proceeds to the Be Fresh on demand.
the Client should not convert or process the Goods or intermix them with other goods, but if the Client does so then the Client holds the resulting product on trust for the benefit of the Be Fresh, and must sell, dispose of or return the resulting product to the Be Fresh as it so directs.
the Client irrevocably authorises the Be Fresh to enter any premises where the Be Fresh believes the Goods are kept and recover possession of the Goods.
the Be Fresh may recover possession of any Goods in transit, whether or not Delivery has occurred.
the Client 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 the Be Fresh.
the Be Fresh may commence proceedings to recover the Price, notwithstanding that ownership of the Goods has not passed to the Client.
Personal Property Securities Act 1999 (“PPSA”)
Upon assenting to these terms and conditions in writing the Client 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 that have previously been supplied and that will be supplied in the future by the Be Fresh to the Client.
The Client 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 the Be Fresh may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
indemnify, and upon demand reimburse, the Be Fresh 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 in favour of a third party without the prior written consent of the Be Fresh; and
immediately advise the Be Fresh 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.
The Be Fresh and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
The Client 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 the Be Fresh, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
The Client shall unconditionally ratify any actions taken by the Be Fresh under clauses 1 to 9.5.
Security and Charge
In consideration of the Be Fresh agreeing to supply the Goods, the Client 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 Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
The Client indemnifies the Be Fresh from and against all the Be Fresh’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Be Fresh’s rights under this clause.
The Client irrevocably appoints the Be Fresh and each director of the Be Fresh as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Client’s behalf.
Defects, Returns and Warranties
The Client shall inspect the Goods on Delivery and shall, within seven (7) days of such time (being of the essence), notify the Be Fresh of any alleged defect, shortage in quantity, damage or failure to comply with the description or quotation. The Client shall afford the Be Fresh an opportunity to inspect the Goods within a reasonable time following such notification if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Be Fresh has agreed in writing that the Client is entitled to reject, the Be Fresh’s liability is limited to either (at the Be Fresh’s discretion) replacing the Goods or repairing the Goods. Goods will not be accepted for return other than in accordance with this clause 1.
The Be Fresh may, in its absolute discretion, accept non-defective Goods for return, in which case the Be Fresh may require the Client to pay handling fees of up to twenty percent (20%) of the value of the returned Goods, plus any freight costs. However, subject to clause 1, non-stocklist Goods, or Goods made to the Client’s specifications, are under no circumstances acceptable for credit or return.
In the case of second-hand Goods, the Client acknowledges that it has had full opportunity to inspect the same and that it accepts the same with all faults, and that no warranty is given by the Be Fresh as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Be Fresh shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
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 the Be Fresh’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
If the Client owes the Be Fresh any money the Client shall indemnify the Be Fresh from and against all costs and disbursements incurred by the Be Fresh in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Be Fresh’s collection agency costs, and bank dishonour fees).
Without prejudice to any other remedies the Be Fresh may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Be Fresh may suspend or terminate the supply of Goods to the Client. The Be Fresh will not be liable to the Client for any loss or damage the Client suffers because the Be Fresh has exercised its rights under this clause.
Without prejudice to the Be Fresh’s other remedies at law the Be Fresh shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Be Fresh shall, whether or not due for payment, become immediately payable if:
any money payable to the Be Fresh becomes overdue, or in the Be Fresh’s opinion the Client will be unable to make a payment when it falls due;
the Client 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 Client or any asset of the Client.
The Be Fresh may cancel any contract to which these terms and conditions apply, or cancel Delivery at any time before the Goods are delivered, by giving written notice to the Client. On giving such notice the Be Fresh shall repay to the Client any money paid by the Client for the Goods. The Be Fresh shall not be liable for any loss or damage whatsoever arising from such cancellation.
In the event that the Client cancels this agreement, or Delivery, the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Be Fresh as a direct result of the cancellation (including, but not limited to, any loss of profits). However, cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist Goods, will definitely not be accepted once an order has been placed.
Privacy Act 1993
The Client authorises the Be Fresh or the Be Fresh’s agent to:
access, collect, retain and use any information about the Client;
(including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
for the purpose of marketing products and services to the Client.
disclose information about the Client, whether collected by the Be Fresh from the Client directly or obtained by the Be Fresh 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 Client.
Where the Client is an individual the authorities under clause 1 are authorities or consents for the purposes of the Privacy Act 1993.
The Client shall have the right to request the Be Fresh for a copy of the information about the Client retained by the Be Fresh and the right to request the Be Fresh to correct any incorrect information about the Client held by the Be Fresh.
The failure by the Be Fresh to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Be Fresh’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 Tauranga District Court of New Zealand.
The Be Fresh shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Be Fresh of these terms and conditions (alternatively the Be Fresh’s liability shall be limited to damages which under no circumstances shall exceed the Price).
The Client hereby disclaims any right to rescind, or cancel any contract with the Be Fresh or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by the Be Fresh, and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgment.
If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by the Be Fresh to the Client.
The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by the Be Fresh nor to withhold payment of any invoice because part of that invoice is in dispute.
The Be Fresh may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
The Client agrees that the Be Fresh may amend these terms and conditions at any time. If the Be Fresh makes a change to these terms and conditions, then that change will take effect from the date on which the Be Fresh notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for the Be Fresh to provide Goods to the Client.
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.
The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.