Fresh Direct Limited

TERMS & CONDITIONS OF SALE

Fresh Direct Limited (“Fresh Direct”) shall only supply Goods to you (“the customer”) on the following terms and conditions unless we agree, in writing, to vary these terms and conditions.

1. Definitions

1.1 “Goods” shall include without limitation:

• (a) any goods supplied by Fresh Direct to the customer;
• (b) any inventory of the customer that is supplied by Fresh Direct;
• (c) any goods supplied by Fresh Direct and further identified in any invoice issued by Fresh Direct to the customer, which invoices are deemed to be incorporated into and form part of these terms and conditions
• (d) any goods that are marked as having been supplied by Fresh Direct or that are stored by the customer in a manner that enables them to be identified as having been supplied by Fresh Direct;

1.2 “Prices” shall mean the cost of the Goods provided as agreed between Fresh Direct and the customer.

2. Price

2.1 Unless we agree otherwise, our Prices are subject to change without notice.

2.2 Unless specified in our invoice, all Prices exclude travel charges, delivery charges and goods and services tax, all of which the customer must pay.

2.3 In relation to Goods, while we shall use all reasonable endeavours to comply with your particular delivery requirements and order specifications, the customer will not be entitled to cancel the whole or part of the customer’s order or to claim compensation by reason of Fresh Direct’s failure to comply with the customer’s delivery requirements or minor variations to the Goods.

3. Terms of Credit

3.1 Goods are to be paid for daily by cash.

3.2 Weekly credit will be extended to approved customers, subject to these terms and conditions being adhered to.

3.3 Approved customers will be invoiced by a weekly summary statement.

4. Payment

4.1 The customer agrees to make full payment of each weekly statement by direct debit on the Monday immediately following the statement date or within whatever other terms have been agreed in writing.

4.2 Should you fail to pay your invoices by the due date set out in clause 4.1 above then:

• (a) the customer shall pay all Fresh Direct’s costs and expenses (including legal costs) which may be incurred in the recovery or attempted recovery of the owed amounts from the customer; and
• (b) Fresh Direct may require the customer to compensate Fresh Direct by making payment to Fresh Direct on demand of interest (as liquidated damages) on the amount due from the due date until the date of payment at a rate equal to 1% per week.

4.3 The customer shall pay Fresh Direct a $100 penalty fee should any payment to Fresh Direct be dishonoured.

5. Disputes and Return of Goods

5.1 No claim relating to Goods (whether damage, loss or incorrect supply) will be considered unless made within 24 hours of delivery.

5.2 No claim relating to incorrect pricing will be considered unless made within 24 hours of delivery.

5.3 No Goods will be accepted for return without the prior completion of a claim form (available upon request).

6. Risk

6.1 The Goods remain at Fresh Direct’s risk until delivery to the customer’s nominated premises.

6.2 Delivery of the Goods shall be deemed complete upon delivery to the customer and/or when possession of the Goods is given to a carrier, courier, or other bailee for purposes of transmission to the customer.

6.3 The time agreed for delivery shall not be an essential term of these terms and conditions unless the customer gives written notice to Fresh Direct making time of the essence.

6.4 Title remains with Fresh Direct until payment in full has been received by Fresh Direct.

7. Title and Security (Personal Property Securities Act 1999)

7.1 Until all sums due to Fresh Direct by the customer have been paid in full, the customer expressly agrees that Fresh Direct has a security interest in all of its Goods to secure payment of the purchase price of those Goods and any other obligations owing and the customer waives the right to receive verification of this security interest under the Act.

7.2 The customer gives irrevocable authority to Fresh Direct to enter any premises occupied by the customer or on which Goods are situated at any reasonable time after default by the customer (or before default if Fresh Direct believes a default is likely) and to remove and repossess any Goods. Fresh Direct shall not be liable for and the customer hereby indemnifies Fresh Direct in respect of any costs, damages, expenses or losses incurred by the customer or any third party as a result of this action, or liability either in contract or in tort or otherwise in any way whatsoever, unless by operation of Law such liability cannot be excluded. Fresh Direct shall then sell any repossessed Goods and credit the customer’s account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs).

7.3 The following shall constitute defaults by the customer:

• (a) Non-payment of any sum by the due date;
• (b) The customer intimates that it will not pay any sum by the due date;
• (c) Any Goods are seized by any of the customer’s creditor(s) and/or such creditor(s) intimate(s) that they intend(s) to seize Goods;
• (d) Any Goods in the possession of the customer are materially damaged while any sum due from the customer to Fresh Direct remains unpaid;
• (e) The customer is bankrupted or put into voluntary administration, liquidation or a receiver is appointed to any of the customer’s assets;
• (f) A Court judgment is entered against the customer and remains unsatisfied for seven (7) days; or
• (g) Any material adverse change in the financial position of the customer.

8. Confidentiality & Use of Information

8.1 All financial arrangements between the customer and Fresh Direct shall remain confidential between the parties.

8.2 The customer acknowledges that it does not have to provide Fresh Direct with any information but refusal to do so may result in Fresh Direct ceasing to supply Goods and/or extending credit to the customer.

8.3 The customer acknowledges that any information supplied to Fresh Direct may be used for the purposes of assessing the customer’s credit application, administering account and marketing goods supplied by Fresh Direct and irrevocably authorises Fresh Direct to:

• (a) use the information for the above purposes;
• (b) provide to any third party any information provided by the customer and details of any dealing Fresh Direct has with the customer; and
• (c) obtain any information concerning the customer from any other source.

8.4 The customer is entitled to have access to this information and to correct it where necessary.

9. Consumer Guarantees Act

9.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the customer acquires Goods from Fresh Direct for the purposes of a business in terms of sections 2 and 43 of the Consumer Guarantees Act 1993.

10. Limitation of Liability

10.1 Fresh Direct’s liability to the customer shall be limited to the refund of any contract price paid by the customer under this agreement.

10.2 Fresh Direct shall not be liable for delay or failure to perform its obligations if the cause of delay or failure is beyond its control including suppliers not supplying their goods or services on time.

11. No Assignment

11.1 The customer shall not assign any of its rights under this agreement to a third party without first obtaining Fresh Direct’s written approval.

11.2 The customer shall advise Fresh Direct of any change in ownership, registered office or delivery address within 7 days of such change.

12. Miscellaneous

12.1 The customer warrants that it is authorised to sign these terms and conditions and the credit application annexed.

12.2 The customer warrants that the information given in the credit application is true and correct.

12.3 Failure by Fresh Direct to enforce any of these terms and conditions shall not be deemed to be a waiver of any of the rights or obligations Fresh Direct has under these terms and conditions.

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

12.5 The Laws of New Zealand govern our trading and the customer agrees with Fresh Direct to submit to the non-exclusive jurisdiction of the Courts of New Zealand and agree that any legal proceedings may be heard in those Courts.