Terms and Conditions

These terms and conditions apply to the sale and delivery by Coca-Cola Amatil (N.Z.) Limited (for itself and as agent for and on behalf of Pacific Beverages (New Zealand) Limited (the Supplier) of all goods which for the purpose of the Personal Property Securities Act 1999 (the "Act") are described as all beverage inventory (the Goods) and the supply on loan by the Supplier of any new and used commercial refrigeration post-mix beverage dispensing equipment and for hot beverage dispensing equipment (the Equipment) to the customer (the Customer).

1 ACCEPTANCE AND ORDERS

1.1 The placing of any order by the Customer will be deemed to be acceptance by the Customer of these Terms and Conditions irrespective of any provision to the contrary that may be included in the Customer's order or which may have been indicated or agreed to by any person acting or purporting to act on behalf of the Supplier.

1.2 It is the Customer's risk and responsibility to obtain every necessary or prudent authorisation to buy, possess, and/or resell the Goods and to ensure that Goods are purchased by an authorised person. CCA will have no obligation to enquire into the authority of any person placing orders in the name of the Customer.

2 GOODS

2.1 The Customer agrees that the Goods are to be used by the Customer only for resale in the ordinary course of the Customer's business. The Customer must not, under any circumstance, sub-deal, on-sell or in any way supply the Goods for the purpose of resale or redistribution by third parties.

2.2 The Goods will be as described on the invoices, quotations or other sales forms as provided by the Supplier to the Customer.

3 PRICE

3.1 At the Supplier's discretion, the price of the Goods will be:

3.1.1 indicated on invoices provided by the Supplier to the Customer in respect of the Goods supplied;

3.1.2 the Supplier's current wholesale price at the date of delivery of the Goods; or

3.1.3 the Supplier's quoted price which will be binding on the Supplier provided that the Customer accepts the quote within one calendar month.

3.2 Prices are subject to change without notice.

3.3 All prices are exclusive of freight costs and insurance charges.

3.4 All prices are subject to goods and services tax at the applicable rate. The Supplier will charge goods and services tax in accordance with the Goods and Services Tax Act 1985.

4 TERMS OF PAYMENT

4.1 Time for payment of the Goods is of the essence. Payment is due in cash upon delivery of the Goods unless credit payment terms have previously been arranged in writing with the Supplier.

4.2 The Customer must make all payments of moneys due to the Supplier in full without set-off or deduction of any kind.

4.3 Credit terms are available to approved customers upon application and the approval of an account by the Supplier. Where Goods are sold on credit terms, payment is due no later than the 20th day of the month following the date of the invoice to which it relates by cash, or by cheque drawn on a bank based in New Zealand, or by credit card, or by direct credit, or by such other method as is agreed in advance by the Supplier.

4.4 The Supplier may set and vary credit limits from time to time and withhold all further supplies if the Customer exceeds such credit limit.

5 DELIVERY

5.1 Unless otherwise agreed, the place of delivery is the Customer's place of business and due delivery will be deemed to have been made to the Customer upon discharge of the Goods from the Supplier's transport at the Customer's place of business.

5.2 The Supplier may determine the method of delivery of the Goods in its sole discretion.

5.3 The Customer acknowledges and agrees that time is not of the essence in relation to delivery and that it must accept and pay for the Goods even if they are delivered after a requested time.

5.4 The Supplier will be permitted to deliver any Goods by part deliveries which will be deemed to be separate orders pursuant to the provisions of the principal order. The Supplier will be entitled to separately invoice each part delivery to the Customer. The Customer will be liable to make payment of each separate invoice in accordance with these Terms and Conditions .

5.5 No claim for any discrepancy in orders will be admitted unless it is made in writing to the Supplier within seven days of delivery.

5.6 The Supplier is entitled to cancel or withhold, without notice, deliveries of any Goods ordered by the Customer where any sums which arethen due and owing to the Supplier by the Customer have not been paid in full. If the Supplier elects not to deliver Goods until all sums due are paid in full, the delivery date for all outstanding orders will be the later of the delivery date specified in any outstanding orders and the date being seven days from the date of payment by the Customer of sums due to the Supplier.

5.7 The Supplier will not be liable for any loss or damage whatsoever due to the failure by the Supplier to deliver the Goods (or any of them) promptly or at all.

5.8 The Supplier will at all times remain the owner of beer kegs delivered to the Customer and the Customer will accordingly be the bailee of such kegs for the Supplier. The Customer will, upon demand by the Supplier, return the beer kegs to the Supplier and will pay to the Supplier the cost of any loss or damage howsoever caused to any keg while the keg is in the possession, or under the control, of the Customer.

5.9 The Customer will ensure that the beer kegs will not be refilled by anyone other than the Supplier (any failure to comply with this clause may constitute a breach of section 72(b) of the Food Hygiene Regulations 1974).

5.10 The Customer acknowledges and agrees that if Goods are delivered to the Customer on a pallet or similar, the Customer will provide a pallet of similar condition in exchange. If an appropriate pallet is not exchanged, the Customer will be liable to reimburse the owner of the pallet (e.g. Chep Handling Systems Ltd, GE Weck-Pack etc) for the cost of an as-new replacement pallet. The Customer must also indemnify the Supplier for any costs associated with failure to exchange a pallet and/or reimburse the relevant pallet owner in accordance with this clause.

5.11 The Customer acknowledges and agrees that where Goods are alcoholic beverages, purchases of such Goods must be signed for and on behalf of the Customer by a representative of the Customer, who is over the age of 18 on delivery. The Supplier will insist on age verification if the relevant individual "looks" 25 years of age or younger.

5.12 The Customer acknowledges and agrees that, in New Zealand, it is against the law to leave restricted Goods such as alcohol unattended at an address. The Customer must, therefore, ensure that its representative is available to take delivery at the designated time for delivery because the Supplier will not leave the Goods unattended. The Customer to pay any additional delivery costs incurred by the Supplier if the Supplier is required to redelivery goods due to the Customer not being in attendance for the first delivery.

6 DEFECTS AND CLAIMS FOR REPLACEMENT GOODS

6.1 The Customer must inspect the Goods on or immediately after delivery. In the event that the Customer discovers that all or any portion of the Goods as delivered differs, in quantity or kind, from the description in the quote, order or invoice or are defective or damaged (other than due to an act or omission of the Customer), the Customer must notify and make a claim against the Supplier within seven days of delivery. Any notice from the Customer to the Supplier pursuant to this clause must detail the invoice number and date on which the Goods were supplied and specifically identify the difference, or defect, in the delivered Goods.

6.2 If the Customer gives notice to the Supplier pursuant to clause 6.1, the Customer will give the Supplier a reasonable opportunity to inspect the Goods at a reasonable time following delivery.

6.3 If the Customer fails to comply with clauses 6.1 or 6.2, the Goods will be conclusively presumed to be free from any defect or damage and the Customer will be deemed to have accepted the Goods and the Supplier will not incur any subsequent liability whatsoever in relation to the Goods.

6.4 Following the Supplier's inspection of the Goods pursuant to clause 6.3, the Supplier may, in its sole discretion, replace the goods or make a reasonable allowance on the purchase from the Supplier of replacement Goods.

6.5 The Supplier may require the Customer to return the Goods to Supplier. If the Supplier requires a return of Goods then all transportation charges, insurance, taxes, duties and additional charges will be borne by the Customer.

7 RETURN OF GOODS

7.1 The Customer may return Goods within seven days of delivery, at the discretion of the Supplier.

7.2 Goods must be returned:

7.2.1 to the Supplier's store, with all transportation charges, insurance, taxes, duties and additional charges being borne by the Customer;

7.2.2 in as new condition in the Supplier's original containers, unsoiled and undamaged; and

7.2.3 accompanied by the invoice number and date on which the Goods were supplied.

8 LOAN OF EQUIPMENT

8.1 The Supplier may supply certain Equipment, as agreed between the parties from time to time, to the Customer on a 'free on loan' basis, unless otherwise stipulated by the Supplier. Any supply of Equipment will be subject to these Terms and Conditions .

8.2 The period of loan of the Equipment commences from the date of installation of the Equipment and continues for such time as the parties agree in writing, until these Terms and Conditions are terminated or until the Equipment is collected by the Supplier.

8.3 The Customer will use and keep the Equipment in a careful, proper and safe manner and not abuse it, nor use it or permit it to be used for any purpose other than that for which it is intended.

8.4 The Customer will keep the Equipment free of all mortgages, charges, security interests, liens, hypothecs, pledges and other encumbrances.

8.5 From the date of installation of the Equipment until the collection of the Equipment by the Supplier, the risk in, and to, the Equipment will remain with the Customer. The Equipment will at all times remain the property of the Supplier.

8.6 The Equipment must only be used for the refrigeration or dispensation of the Goods and will not be used for storing, refrigerating or dispensing any other drinks or food or for any other purpose.

8.7 The Customer will not modify or change the Equipment in any way.

8.8 The Customer will immediately report any fault with or damage to the Equipment by contacting 0800 262 226. The Supplier will arrange for a suitably qualified technician to visit the Customer on a date/time that is mutually acceptable.

8.9 In the case of damage to the Equipment, however caused, the Customer will be responsible for and will indemnify the Supplier for the full cost of all repairs to restore the Equipment to the condition it was in at the date of installation (fair wear and tear excepted).

8.10 In the case of theft, loss of or irreparable damage to the Equipment however caused, the Customer will be responsible for and will indemnify the Supplier for the full cost to the Supplier of replacing the Equipment and any loss of revenue suffered by the Supplier due the unavailability of the Equipment for loan or hire due to loss or damage.

9 DEFAULT

9.1 If the Supplier considers in its sole discretion that the Customer may be unable to meet its payment obligations to the Supplier, the Supplier may:

9.1.1 demand payment of all or part of any sums due (in which case such sums will become immediately due and payable);

9.1.2 require security for any obligations to its full satisfaction before any further supplies are made to the Customer; and

9.1.3 withhold without notice deliveries of Goods ordered by the Customer.

9.2 The Customer will be in default if any one or more of the following event (Event of Default) occur:

9.2.1 any amount payable by the Customer to the Supplier is overdue or in the Supplier's opinion, the Customer is likely to be unable to meet its payment or other obligations to the Supplier;

9.2.2 the Customer fails to perform in whole or in part any of its obligations under, or is in breach in whole or in part of any term of, these Terms and Conditions

9.2.3 the Customer breaches of any other contract or arrangement with the Supplier.

9.2.4 the Customer breaches in whole or in part any terms of credit granted to it;

9.2.5 the Customer commits an act of bankruptcy (as defined in the Insolvency Act 2006), becomes insolvent, has a receiver appointed in respect of its assets, makes or is likely to make an arrangement with its creditors, has a liquidator (provisional or otherwise) appointed, or is placed under statutory or official management;

9.2.6 the Customer, if a company, fails to provide the Supplier with a certificate of solvency (as defined by the Companies Act 1993) within 10 days of receiving a written demand therefore from the Supplier or is otherwise presumed to be unable to pay its debts in accordance with the Companies Act 1993;

9.2.7 if the Customer no longer carries on business or threatens to cease carrying on business; or

9.2.8 if the ownership or effective control of the Customer is transferred or the nature of the Customer's business is materially altered and the Customer has failed to comply with clause 10; or

9.2.9 any permit or government authority or licence required to carry on the Customer's business is either cancelled or revoked.

9.3 If there is an Event of Default, in addition to any other rights at law the Supplier may have, the Supplier may take one or more of the following actions:

9.3.1 require the immediate payment by the Customer of all monies owing by the Customer to the Supplier under any Contract or any account;

9.3.2 cancel this and any other contract or arrangement for supply to the Customer without notice or payment of any sums to the Customer;

9.3.3 repossess any Goods in the Customer's possession in respect of which title has not yet passed to the Customer;

9.3.4 (if relevant) suspend, withdraw or vary any credit facility provided by the Supplier to the Customer entirely.

9.4 Any failure on the part of the Customer to make payment on the due date will result in all sums owing by the Customer to the Supplier becoming immediately due and payable. The Customer will be liable to compensate the Supplier by immediately making payment as liquidated damages (in addition to the amounts due) of interest on the amount due from the due date until the date of payment at a rate equal to 4% above the Supplier's regular bank's base rate from time to time. The Customer confirms that this is a fair and reasonable rate.

9.5 The Customer will pay all costs incurred by the Supplier including costs on dishonoured cheques, legal (solicitor and own client) costs, debt collectors' costs, process serve fees, company and business search fees and all other investigative fees, other costs and expenses incurred by or on behalf of the Supplier in the recovery or attempted recovery of outstanding moneys and the enforcement of these Terms and Conditions.

9.6 Payments by the Customer will be applied first in reduction of interest, liquidated damages and costs due pursuant to this clause, with the balance then being in reduction of any amounts due under clause 4.

10 CHANGE OF OWNERSHIP OR NATURE OF BUSINESS OF CUSTOMER

10.1 The Customer may not assign these Terms and Conditions without the prior written consent of the Supplier, such consent to be granted at the Supplier's sole discretion.

10.2 The Customer agrees that it will notify the Supplier of any change in its ownership or effective control (as the case may be) or a material change in the nature of the Customer's business no later than 14 days prior to any such proposed changes coming into effect. The Supplier will not be obliged to provide credit terms, or supply any Goods, to the Customer following a change of ownership, control or business.

10.3 The Customer will be liable to the Supplier for all losses, unpaid accounts, interest, damages, costs, charges, fees and expenses incurred by the Supplier as a result of the Customer being in breach of clause 10.1 and as a result of the Supplier trading with any person, company or entity which may have acquired the Customer's business in whole or in part and traded with the Supplier using the Customer's previously approved credit terms.

11 TITLE AND RISK

11.1 Notwithstanding any period of credit, legal and beneficial ownership of any and all Goods will remain with the Supplier until payment in full is made for them and for all other Goods supplied by the Supplier to the Customer.

11.2 So long as any sums remain owing by the Customer to the Supplier whether under these Terms and Conditions or any other contract or arrangement, the Customer must:

11.2.1 hold the Goods as fiduciary and bailee for the Supplier;

11.2.2 store the Goods in a manner that clearly shows that the Supplier owns those Goods;

11.2.3 keep separate records in respect of the Goods; and

11.2.4 insure the Goods from the time of delivery in the name of the Supplier and the Customer for their respective interests.

11.3 Despite the fact that ownership in the Goods may not have passed to the Customer, risk in the Goods will pass to the Customer when the Goods are delivered to the Customer or into the custody of any party acting on the Customer's behalf.

11.4 If payment is overdue in whole or in part in respect of any of the Goods, or in the event of cancellation, the Supplier may (without prejudice to any of its other rights):

11.4.1 call for the Goods to be returned to the Supplier in which case the Customer is obliged to immediately return the Goods to the Supplier;

11.4.2 enter premises where the Goods and Equipment are located (or the Supplier believes them to be located) and take possession of and/or remove them and the Customer irrevocably authorizes the Supplier and its employees and agents to enter such premises.

11.5 If the Goods are sold or otherwise disposed of by the Customer prior to payment in full, the Customer may only sell, or otherwise deal with the Goods:

11.5.1 as a fiduciary (but not agent) of the Supplier; and

11.5.2 in the ordinary course of the Customer's business. For that purpose the Supplier gives the Customer the right to pass title to the Goods to any person who buys the Goods from the Customer provided that where the Customer is paid for the Goods by the third party, the Customer must receive all proceeds from the sale in trust for the Supplier, must hold those proceeds on trust and in a separate account until the liability of the Supplier has been discharged and must account to the Supplier for the proceeds. Where the Customer has not been paid for the Goods by the third party, the Customer holds the debt owing to it by the third party in respect of the sale of the Goods upon trust for the Supplier and must assign that debt to the Supplier.

11.6 Where the Supplier has reasonable cause to believe:

11.6.1 the Customer has not strictly complied with these Terms and Conditions and, in particular, has defaulted in any payment in accordance with clause 9; or

11.6.2 an Event of Default has occurred or are likely to occur, the provisions of clauses 11.4.1 and 11.4.2 will apply.

11.7 In exercising its rights pursuant to this clause, the Supplier will be entitled to deduct from any sale of goods or mixed goods recovered from the Customer all of the costs and expenses (including legal expenses) incurred by the Supplier in enforcing or attempting to enforce its rights pursuant to this clause.

11.8 The Customer must not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Seller.

12 PURCHASE MONEY SECURITY

12.1 The Customer grants to the Supplier a security interest in the Goods and their proceeds to secure the obligation of the Customer to pay the price of the Goods and any other obligations of the Customer to the Supplier under these Terms and Conditions. .

12.2 By assenting to these Terms and Conditions , the Customer acknowledges and agrees that:

12.2.1 these Terms and Conditions constitute a security agreement for the purposes of section 36 of the Act; and

12.2.2 security interest is taken in all Goods and Equipment previously supplied by the Supplier to the Customer (if any) and all Goods and Equipment that will be supplied in the future by the Supplier to the Customer (if any).

12.3 The Customer will do everything, at its own expense, that the Supplier reasonably requires to ensure that the Supplier has a perfected security interest and a purchase money security interest in each part of the Goods, and generally to obtain, maintain, register and enforce the Supplier's security interests in accordance with the PPSA.

12.4 The Customer will:

12.4.1 sign any further documents and provide any further information, such information to be complete, accurate and up-to-date in all respects, which the Supplier may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register (PPSR);

12.4.2 indemnify, and upon demand reimburse, the Supplier for all expenses incurred in registering a financing statement or financing change statement on the PPSR or releasing any Goods and Equipment charged thereby;

12.4.3 not register a financing change statement (in accordance with Regulation 9) or a change demand (in accordance with Regulation 10) on the PPSR without the prior written consent of the Supplier;

12.4.4 give the Supplier not less than 14 days prior written notice of any proposed change in the Customer's name and/or any other change in the Customer's details; and

12.4.5 immediately advise the Supplier 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.

12.5 The Customer waives any right to receive a copy of a verifications statement in accordance with section 148 of the Act.

12.6 If, at any relevant time, the Supplier does not at that time have priority over all other secured parties in respect of any part of the Goods, then the Customer and the Supplier will, for the purposes of section 109(1) of the PPSA, be deemed, in accordance with the entitlement to do so under section 107(1) of the PPSA, to have contracted out of that section but specifically on the basis that, as between them and only to the extent of that part of the Goods and the operation and application of the PPSA, section 109(1) (but amended only by the deletion of the words 'with priority over all other secured parties') is reinstated and contracted back into.

12.7 Nothing in sections 114(1) (a), 133 and 134 of the PPSA will apply to these Terms and Conditions of Sale, or the security under these terms and conditions, and waives the Customer's rights under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA.

13 WARRANTIES

13.1 The Customer agrees that the Goods are supplied to the Customer for business purposes in terms of sections 2 and 43 of the Consumer Guarantees Act 1993 and that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply to the Customer.

13.2 Subject to clause 13.3, the Supplier expressly excludes all warranties, descriptions, representations, statements and conditions, whether implied by law, trade, custom or otherwise, as to the quality or fitness of the Goods, suitability for any purpose, tolerance to any conditions, similarity to sample, merchantability or otherwise. The Supplier will not be bound by or be responsible for any such unauthorised warranties; and/or descriptions; and/or representations; and/or statements; and/or advice, made by any of its employees, agents, suppliers or delivery people, whether made in good faith or otherwise.

13.3 Where legislation implies in these Terms and Conditions any condition warranty or liability which cannot be excluded or modified then, to the extent not prohibited by law, the liability of the Supplier in respect of a breach of any such implied condition or warranty is limited, at the Supplier's option, to the replacement of the Goods or the supply of equivalent Goods or the payment of the costs of replacing those Goods or acquiring equivalent Goods.

13.4 Goods returned under warranty must be returned free to the Supplier's store, with all transportation charges, insurance, taxes, duties and charges being borne by the Customer.

13.5 The Customer warrants that it:

13.5.1 has and will continue to have any permit, government authorisation or licence required for it to carry on its business and, in particular and without limitation, if the Goods include alcoholic beverages, that it will continue to have the requisite retail liquor licence required under any relevant laws;

13.5.2 will handle and store the Goods at all times as directed by the Supplier or, in the absence of such direction, in accordance with prevailing industry standards for the particular Goods; and

13.5.3 has product safety and product recall procedures in place which conform with the requirements of all relevant laws of New Zealand.

14 LIMITATION OF LIABILITY

14.1 Subject to clauses 14.2 and 14.3, to the extent not prohibited by law, the Supplier is only liable for direct loss or damage suffered by the Customer and caused by the Supplier's negligence provided that the Supplier's maximum liability in relation to any event or series of related events is limited to $5,000.00 or the purchase price of the Goods in respect of which such liability arises, whichever is the lesser amount.

14.2 Notwithstanding any other provision of these Terms and Conditions , the Supplier is not under any circumstances liable in any way, whether under contract, in tort, under statute or otherwise, to the Customer for any loss of profits, loss of revenue, loss of business, loss of contracts, or for any indirect, special, consequential or economic loss, damage or injury.

14.3 The Supplier will not be responsible for any damage whatsoever caused either to the Goods and the Equipment supplied or as a result of the supply of such Goods where the Goods have been used or consumed in a way in which they are not specifically intended, the Goods are improperly stored, or as a result of the breakdown or failure of the Equipment.

 15 COLLECTION OF INFORMATION

15.1 The Customer authorises the Supplier to (a) make such enquiries and collect such personal information so as to enable the Supplier to assess the Customer's creditworthiness and to obtain credit reports, character references and credit statements, (b) obtain any personal information from any bank, financial institution, credit reporting agency, employer or other person ("Organisation"), (c) disclose any personal information to any Organisation authorised to seek information, and (d) use any personal information in connection with these Terms and Conditions , or for marketing and customer service activities.

15.2 The Customer understands that failure to authorise the obtaining of personal information from any organisation may result in the declining or cancelling credit terms to the Customer and that there is a right of access to, and correction of, personal information which is held by the Supplier. 

16 GENERAL

16.1 All Goods and Equipment supplied by the Supplier are subject to the laws of New Zealand and the Supplier takes no responsibility for changes in the law that affect the Goods and/or Equipment supplied.

16.2 The Supplier reserves the right to review and amend these Terms and Conditions at any time and from time to time. If, following any such review, there is any change in such Terms and Conditions, that change will take effect from the date on which the Supplier notifies the Customer of such change.

16.3 If the Customer has entered into a separate supply agreement with the Supplier (the Supply Agreement), these Terms and Conditions of Sale operate in addition to the terms of the Supply Agreement. To the extent of any inconsistency between the Supply Agreement and the provisions of these Terms and Conditions, the Supply Agreement will prevail.