THE MUSHROOM CLOUD – WHOLESALE SUPPLY TERMS OF TRADE [ON ACCOUNT CUSTOMERS]
The Mushroom Cloud Limited (“TMC”)
You (“the “Retailer”)
In these terms and conditions “TMC” means The Mushroom Cloud Limited being the supplier of goods to the retailer named above (the “Retailer”). Notwithstanding anything to the contrary, TMC supplies all goods to the Retailer upon the terms and conditions set out herein. The ordering of goods will be deemed to be acceptance by the Retailer of these terms and conditions.
1. The Retailer shall pay the price indicated on the invoice or other similar document issued by The Mushroom Cloud for the goods.
2. The Retailer shall pay Goods and Services Tax as invoiced by TMC and any other taxes, duties and levies payable in respect of the supply of goods as at the date of the invoice.
3. The purchase price of goods will be as stated on the then current line sheet provided to the Retailer or otherwise as displayed by TMC online. The Retailer acknowledges that TMC may review and change its prices from time to time at The Mushroom Cloud’s discretion.
4. The Retailer shall make all payments due to TMC in full without any deductions whether by way of set-off, counterclaim, or any other equitable or legal claim.
5. The Retailer acknowledges that the price of goods does not include the price of delivery (or transit insurance) which shall be arranged by TMC at the cost of the Retailer and invoiced separately.
Recommended Retail Pricing and Sales to Minors
6. TMC may, from time to time, provide the Retailer with recommended retail prices for the goods. TMC may, at its sole discretion, amend the recommended retail prices for the goods from time to time.
7. In accordance with the Smoke Free Environments Act 1990 and Ministry of Health guidelines the Retailer agrees not to sell TMC products to anyone under the age of eighteen (18) years.
Terms of Payment
8. The Retailer shall pay all amounts due to TMC on the due date. Unless otherwise agreed in writing by The Mushroom Cloud, full payment must be made by the Retailer on the due date for payment. Payment shall not be deemed to have been received until it is credited to The Mushroom Cloud’s bank account.
9. If the Retailer defaults in payment, the Retailer shall upon demand pay interest at the rate of 14% per annum in respect of all of the Retailer’s indebtedness to The Mushroom Cloud. Such interest shall accrue on a daily basis from the date when payment is due until the date when payment is actually received. The Retailer shall be liable to pay all expenses and legal costs relating to or having any connection with TMC obtaining or seeking to obtain a remedy of the Retailer’s default.
10. If the Retailer is in default of any provision of this contract, TMC shall be entitled to terminate this or any other contract with the Retailer, without prejudice to its right to recover all sums owing to it in respect of goods already ordered. Upon termination of the contract, TMC shall be entitled to dispose of the balance of the goods contracted for as they see fit.
11. Where the Retailer owes any amount to The Mushroom Cloud, TMC shall be entitled, at its complete discretion, to accept any payment received and apply it towards satisfaction of any such indebtedness whether or not that payment relates to a specific invoice, costs, interest or other indebtedness.
12. Where goods are being delivered outside of New Zealand, the Retailer shall be liable for all customs fees, taxes and other similar/related costs.
13. TMC shall be entitled to assign to any other person or company all or any part of the Retailer’s indebtedness to TMC and the assignee shall be entitled to claim all or part of the indebtedness and shall have the same rights of recovery as TMC against the Retailer.
Delivery of Goods
14. Unless otherwise agreed, TMC shall (at the Retailers cost to be invoiced separately) arrange for transportation of goods from The Mushroom Cloud’s premises and any transit insurances in respect of such goods. TMC shall not be liable for any loss or damage to the goods during transportation, even though such loss or damage may be caused by The Mushroom Cloud’s negligence or other default.
15. Unless the parties otherwise agree in writing, delivery shall be deemed to be effected upon the transfer of possession of goods to the Retailer or the Retailer’s agents.
16. TMC shall not be liable to the Retailer or any other party for any loss sustained due to any delay in the supply or delivery of the goods.
Risk and Title
17. Risk in goods supplied or to be supplied, by TMC shall pass from TMC to the Retailer when the goods are delivered, when TMC first makes an attempt to deliver if the Retailer fails to accept goods, or on the date of a
request by the Retailer to delay delivery, or on the date that those goods are invoiced to the Retailer whichever is the earlier.
18. Title in goods supplied or to be supplied by TMC shall not pass to the Retailer until all amounts owing by the Retailer to the TMC in respect of those goods and all other goods supplied to the Retailer by TMC have been paid in full.
19. Until title passes from TMC to the Retailer in accordance with the preceding clause, where the Retailer is in possession of the goods, the following terms shall apply:
(a) The Retailer shall be deemed to be acting in a fiduciary capacity as bailee of TMC in respect of any goods supplied by The Mushroom Cloud.
(b) The Retailer shall if required by TMC store the goods in such condition and place that it is clear that they are owned by The Mushroom Cloud.
(c) The Retailer shall not under any circumstances mix the goods supplied by TMC with other goods in any manner whatsoever; and
(d) If the Retailer resells goods supplied to it before it has title to them, the Retailer shall account to TMC as The Mushroom Cloud’s agent for the proceeds of such resale, but the Retailer shall not represent to any person that the Retailer is acting for TMC or has any authority to bind The Mushroom Cloud.
20. Where TMC exercises its rights under this Agreement in respect of the resale, repossession, or storage of the goods supplied, the Retailer shall immediately indemnify TMC for all costs incurred by TMC in the exercise of those rights (including solicitor and own client legal costs).
Further Security for amounts owing
21. As further security for the amounts owing from time to time under this Agreement, the Retailer hereby grants to TMC or its assignee a Security Interest over both the goods supplied by TMC and all of the Retailer’s present and after acquired personal property (“Property”) including proceeds of sale of the Property (together called the “Collateral”).
22. The Collateral shall stand as security for repayment of all moneys owing by the Retailer and all obligations of the Retailer to TMC including, but without limitation, all interest and the actual legal or other enforcement costs incurred by TMC in seeking repayment of all sums owing to TMC or performance of other obligations by the Retailer.
23. It is expressly agreed that these Terms and Conditions of Trade constitute a Security Agreement under the Personal Property Securities Act 1999 whereby the Retailer grants to TMC a Security Interest in the Collateral.
24. It is expressly agreed that:
(a) The Security Interests created by these terms and conditions are not Security Interests in consumer goods to which the Credit (Repossession) Act 1997 applies; and
(b) To the fullest extent possible the parties contract out of the application of sections 114(1)(a), 133 and 134 of the Personal Property Securities Act 1999 (“PPSA”).
25. The Retailer hereby pledges the Collateral and the Retailer charges the Collateral with payment of all sums owing by the Retailer to TMC pursuant to these terms and conditions and the Retailer authorises TMC to lodge and maintain a Charge, Caveat, Mortgage or registered Security Interest against the Retailer’s right and title to the Collateral.
26. The Retailer irrevocably appoints TMC to be the attorney of the Retailer to do anything which the Retailer agrees to do under these terms and conditions and, specifically, to sign any document which the attorney thinks desirable to ensure TMC is paid all sums due to TMC and otherwise to protect the interests of TMC under these terms and conditions or at law.
27. Without in any way limiting the generality of clause 26, the attorney may execute any document for the purposes of creating a Mortgage, Charge or Security Interest under the PPSA or causing such Security Interest to attach to the Collateral. This power shall inure until all sums owing have been paid to TMC in full. The Retailer ratifies anything done by an attorney under this clause and further indemnifies any person acting as attorney in reliance upon these terms and conditions. If TMC assigns the benefit of this Agreement, the assignee shall have the same rights and powers under this clause as does TMC and the Retailer irrevocably appoints the assignee their attorney accordingly.
28. Despite sections 188 and 189 of the PPSA and Part 2 of the Electronic Transactions Act 2002, service of any Court or other statutory notice or document by facsimile or by electronic mail upon TMC shall not be deemed to be proper service. Any document to be given to or served on TMC by the Retailer shall be posted or shall be delivered personally to The Mushroom Cloud’s address. This shall apply notwithstanding that for day to day communications the Retailer may send and receive information by facsimile and/or electronic mail.
29. The Retailer’s obligations and liability under these terms and conditions shall continue until such time as the Retailer has completely discharged
their obligations to The Mushroom Cloud. The Retailer acknowledges that they have entered into these terms and conditions voluntarily and have had the opportunity to take independent legal advice on the effect of these terms and conditions.
30. The Retailer irrevocably authorises any person to provide TMC with such information as TMC may request as part of its administration and enforcement of these terms and conditions and further irrevocably authorises TMC to provide to any third party details of these terms and conditions or any financial dealings that TMC may have with the Retailer for such purposes as TMC shall see fit with respect to The Mushroom Cloud’s business. The Retailer must provide TMC with ongoing information and any associated documentation requested by TMC relating to the Retailer’s financial status.
31. TMC reserves the right to alter product specifications and availability on written notice to the Retailer.
32. Every effort has been made to convey correct product descriptions, specifications and prices to the Retailer, however, this could differ from actual goods supplied.
33. TMC does not guarantee that items listed are in stock. If an order is placed for an unavailable item TMC will notify the Retailer. If TMC is unable to provide an item TMC will contact the Retailer to discuss a possible replacement/substitute. It is the Retailer’s responsibility to ensure that any goods ordered are suitable for the Retailer’s requirements.
34. TMC take the greatest care to ensure all goods are of merchantable quality and are true to named description, but any express or implied conditions, statement or warranty whether arising by statute or common law or otherwise as to merchantable quality or name or description are hereby excluded to the fullest extent permitted by law.
35. Any variations, amendments or alterations to the goods requested by the Retailer for the goods to be supplied by TMC are at the sole and absolute discretion of The Mushroom Cloud. Where the Retailer or the end consumer makes any alterations or amendments to the goods those shall be at the sole and absolute risk of the Retailer or the end consumer as the case may be and TMC shall have no liability or responsibility for those matters.
36. Subject only to any obligatory statutory rights, no cancellation, addition, deletion, amendment, or variation of any kind of or to any contract of supply between the parties may be made except with the consent of TMC in writing.
37. Acceptance of any returned goods will be at the absolute discretion of The Mushroom Cloud.
38. The parties agree that loss or damage to goods in transit is not the responsibility of TMC and any claims for loss or damage are to be made to the Retailer’s agent or carrier. TMC accepts no responsibility for any damage that may occur after collection of the goods from The Mushroom Cloud’s premises.
39. It is the Retailer’s responsibility to inspect the goods on delivery and shall within five (5) business days of delivery notify TMC of any alleged defect, shortage in quantity, damage or failure to comply with a description or invoice.
40. Failure to notify TMC within the prescribed timeframe will be deemed an acceptance of the goods by the Retailer free from defect, shortfall or damage.
Claims and limitation of Liability
41. Subject only to mandatory liability or guarantee imposed by statute and without prejudice to any rights granted thereby to the Retailer:
(a) All warranties descriptions, representations, or conditions whether implied by law, trade, custom or otherwise and whether relating to fitness, merchantability, suitability or purpose, or otherwise, and all specific conditions, even though such conditions may be known to The Mushroom Cloud, are expressly excluded;
(b) TMC shall not be liable in any way whatsoever to the Retailer or any third party whether in tort (including negligence), contract or otherwise for any loss or damage whatsoever, whether direct, indirect, special or consequential and all such liability is expressly excluded; and
(c) The liability of TMC in respect of any order of goods shall in any event be limited to the lesser of the purchase price of the goods complained of, the cost of replacing defective goods, or the actual loss or damage suffered by the Retailer.
42. In addition to any statutory rights and remedies that the Retailer may have, TMC may at its complete discretion replace or give credit for all goods supplied and established to be defective, provided that the following conditions are met:
(a) All claims must be received by TMC within (5) five business days of delivery of goods and where applicable the despatch number and or invoice number must be quoted by the Retailer;
(b) All claims must specifically identify the defect and where possible in relation to goods be accompanied by the defective goods or a sample thereof; and
(c) TMC shall have a reasonable opportunity to investigate the claim.
43. As the Retailer is acquiring from TMC goods for resale or goods for the purposes of business, all supplies of goods to the Retailer by TMC shall be deemed to be made in trade for the purposes of the Retailer’s business (as that latter term is defined in the Consumer Guarantees Act 1993). As between TMC and the Retailer the guarantee provisions of the Consumer Guarantees Act 1993 are expressly excluded and shall not apply to any supplies of goods by TMC to the Retailer.
44. If at any time TMC does not enforce any of these terms and conditions or grants the Retailer time or other indulgence, TMC shall not be construed as having waived that term or condition or its right to later enforce that or any other terms or conditions in this Agreement.
45. Where any provision of these terms and conditions are rendered void, unenforceable, or otherwise ineffective by operation or law then that shall not affect the enforceability or effectiveness of any other provision in these terms and conditions.
Variation of Conditions
46. These terms and conditions may only be varied by The Mushroom Cloud, in its absolute discretion and the only circumstances in which any variation to these terms and conditions will apply are where a duly authorised representative of TMC has expressly agreed in writing to that variation.
Circumstances beyond The Mushroom Cloud’s control
47. TMC shall not be liable for any failure to supply goods or meet any other obligation owed to the Retailer where such failure results from or is influenced by fire, flood, industrial dispute, act of God, act of government (such as change in legislation, regulation, or order made under legislative authority) or any other circumstances beyond The Mushroom Cloud’s reasonable control.
48. The copyright, trademark and/or any other applicable intellectual property rights held by TMC in either the goods or designs provided to the Retailer for sale or any images, tools, signs, devices or any other marketing aids (the “intellectual property”) shall remain vested in TMC and shall only be used for purposes authorised by TMC and at the sole discretion of The Mushroom Cloud. The Retailer is liable for any and all damage, loss, costs or claims that any unauthorised use of the intellectual property causes to the products, brand or reputation of The Mushroom Cloud.
49. The Retailer agrees to only market The Mushroom Cloud’s goods using marketing images, tools, signs, devices or any other marketing aids provided by TMC (the “marketing material”). The Retailer shall not modify, alter, or adapt any of the marketing material or use the products or marketing material of TMC to create their own marketing material without the express written consent of The Mushroom Cloud.
TMC online presence
50. The Retailer acknowledges that while TMC has given the Retailer the exclusive right to sell their goods in the Territory, such exclusivity does not prevent or restrict in any way the right of TMC to engage in online marketing and online sales of their products during the term of this agreement.
51. Both parties agree to keep confidential any information about the business affairs of the other party and to take all appropriate steps which are necessary or desirable to ensure that such confidential information is not disclosed without the prior written consent of the other party. This clause will not apply to information that is already in the public domain other than as a result of a breach of this clause, or information that is required to be disclosed by law or by the listing rules of any applicable recognised stock exchange.
52. If a dispute arises, we will meet in the spirit of goodwill to attempt to resolve it.
53. The relationship between TMC and the Retailer is as seller and buyer. There is no partnership, joint venture, employment relationship, or agency between the parties.
54. The Retailer shall not assign or subcontract any of the rights or obligations under this agreement without the prior written consent of TMC (which may be withheld at The Mushroom Cloud’s sole discretion). TMC may transfer its rights and obligations under this agreement by notice in writing to the Retailer.
55. New Zealand law governs agreement and the parties submit to the exclusive jurisdiction of the New Zealand courts.