Standard Terms and Conditions for the Sale of Goods by Blooming Hill Flowers Ltd
Blooming Hill Flowers Limited (“we”, “us” or “our”) agree to supply all goods (as that term is defined in section 119 of the Contract and Commercial Law Act 2017 and referred to herein as the "Goods") subject to the following terms and conditions (the "Terms").
1 TERMS TAKE PRECEDENCE
1.1 Conflicting Terms: Regardless of any statement to the contrary by you, to the extent that these Terms conflict with any terms purportedly stipulated by you in an order, these Terms shall apply. Fulfilment by us of an order in which you have purported to make other terms applicable shall not preclude us from relying on this clause.
1.2 Conflict between Standard Terms and other Agreements: If there is any conflict between these standard terms and the terms agreed to in a written agreement relating to a particular order then the written agreement will prevail.
2.1 Offer: If you place an order either online through our website www.bloominghill.co.nz (the “Website”) or otherwise it will constitute an offer to buy from us the Goods referred to in the order at the price stated on the Website at the time you place the order or the price advised by us for that order (if applicable) and on these Terms. We will not be bound to proceed with the order unless we have accepted it in writing by email or otherwise.
2.2 Conditions: Your registration as a Blooming Hill Flowers customer and/or an individual order of Goods may be accepted subject to satisfaction of certain conditions such as a requirement that you pay us a deposit and/or grant us a guarantee or other security in such form as we may require (in our absolute discretion) and your registration, or any individual order, will be conditional upon the satisfaction of those conditions.
3.1 Delivery: If a delivery date for the Goods is specified then we will use reasonable endeavours to deliver as close to that date as possible however, any delay in delivery shall not in any way affect your payment obligations or entitle you to cancel the order and we shall have no liability to you for any losses arising by reason of delay in delivery, whatever the cause of the delay.
3.2 Discrepancies and Defective Goods: No claim for:
(a) a discrepancy between an order and the Goods delivered; or
(b) faulty or defective Goods; or
(c) a discrepancy between the quantity of goods ordered and delivered except as provided in clauses 3.3 to 3.5;
will be considered by us unless it is made in writing, accompanied by a photo clearly showing the claimed fault/defect/damage and received by us on the day the Goods are delivered to you. You shall afford us the opportunity to inspect the Goods within a reasonable time following delivery if you believe the Goods are defective in any way. If you fail to comply with these provisions the Goods shall conclusively be presumed to comply with the order and be free from any defect or damage. For defective Goods which we have agreed in writing that you are entitled to reject, our liability is limited in accordance with clause 6.4.
3.3 Quantity: In view of the difficulty in supplying exact quantities, we shall not be in breach of our obligations if we deliver a quantity of the Goods which is up to 10% more or less than the quantity specified in the order.
3.4 Under delivery by more than 10%: If we under deliver by more than 10% of the quantity of Goods specified in the order, at our option we may either:
(a) deliver an additional quantity of the Goods to you so as to bring the overall delivery within the tolerated 10% of the quantity specified in the order; or
(b) reduce the purchase price of the Goods accordingly, at our sole discretion.
3.5 Over delivery by more than 10%: If we over deliver by more than 10% of the quantity of Goods specified in the order, at our option we may either:
(a) repossess a quantity of the Goods from you so as to bring the quantity delivered within the tolerated 10% of the quantity specified in the order; or
(b) raise an additional invoice in respect of the quantity of Goods in excess of the tolerated 10% of the quantity specified in the order at our sole discretion.
3.6 Cancellation: Notwithstanding any other provision of these Terms (or any other contract of supply) we may cancel or vary any order of Goods at any time prior to delivery of the Goods, for any reason, upon written notice to you. On giving such notice we shall promptly repay any sums paid to us in respect of the price for the Goods. We shall not be liable for any loss or damage whatsoever arising from such cancellation.
4. PAYMENT TERMS
4.1 Payment: When you place an order through the Website, payment is made via credit card. All credit card payments are transacted through Windcave to protect your privacy and the security of your credit card information. Other payment methods/terms may be agreed (in our sole discretion) when you register as a Blooming Hill Flowers customer, including but not limited to:
(a) payment by direct debit;
(b) payment in accordance with an agreed payment schedule; or
(c) if you have completed a trading account application form when registering as a Blooming Hill Flowers customer (approved by us in our sole discretion), within 14 days of the date of invoice (or such other period as we may agree).
4.2 Time of the Essence: Time is of the essence in respect of all payments and if you fail to make payment when due, we shall not be obliged to deliver any Goods ordered.
4.3 Late Payment: If any payment is in arrears you will be in default and, without limiting any of our other rights under these Terms or at law, we may:
(a) charge you interest on the amount outstanding at a rate of 16% per annum from the due date for payment until the date payment is made in full; and
(b) stop supply of Goods to you until all money owed has been paid in full.
4.4 Creditworthiness: If we, in our sole discretion, deem your credit to be unsatisfactory, we may do any or all of the following:
(a) require payment of a deposit and/or security for payment (refer clause 2.2 above);
(b) withhold delivery of the Goods;
(c) require you to pay for an order, in cash or cash equivalent, upon placing the order;
(d) cancel any/all unfulfilled orders;
(e) declare all amounts outstanding for orders delivered immediately due and payable in full.
4.5 Application of Payments: We shall have the right to apply all payments received from you towards any indebtedness as we think fit. We shall not be bound by any qualifications or conditions attached to such payments by you.
5. RISK, TITLE AND SECURITY INTEREST
5.1 Risk: All risk in the Goods shall pass when we tender delivery to you (notwithstanding our retention of title pursuant to clause 5.2 below). If you fail to take delivery when tendered, the risk in the Goods shall nevertheless pass to you.
5.2 Title: Title in the Goods shall not pass to you until payment for the Goods and all other amounts owing by you to us has been made in full.
5.3 Security Interest in the Goods: You grant to us a security interest in the Goods and in all Goods hereafter acquired by you from us, and the proceeds of such Goods, as security for all amounts owing to us in respect of any Goods and from any other cause whatsoever.
5.4 Exclusions of PPSA Rights and Obligations: The parties agree that nothing in sections 114(1)(a), 117(1)(c), 133 and 134 of the Personal Property Securities Act 1999 ("PPSA") will apply. You hereby waive your rights as a debtor under sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA and your right to receive a verification statement under section 148 of the PPSA.
6. WARRANTIES & LIABILITY
6.1 Consumer Guarantees Act: You agree that all Goods provided by us to you are provided for business purposes only and accordingly all provisions of the Consumer Guarantees Act 1993 are excluded to the maximum extent allowed under section 43(2) of that Act.
6.2 No warranties: If an order refers to a sample or has been made in reliance on a sample we will use reasonable endeavours to ensure that the goods supplied conform to that sample. However, this is not a contract of sale by sample and we give no warranties as to the availability, quality, merchantability, suitability or fitness for purpose of the Goods, even if a specific purpose was made known to us, and the conditions implied by sections 138 to 142 of the Contract and Commercial Law Act 2017 or by trade usage are excluded.
6.3 No liability for Consequential Loss: We shall not be liable to you in contract, tort or otherwise for any consequential, special, indirect or pure economic loss (howsoever arising) suffered by you as a result of any defect in the Goods or any failure by us to perform our obligations to you in respect of any order, even if such loss was, or should have been, within our contemplation.
6.4 Limitation of liability: Any claim which you may have against us, whether in contract, tort or otherwise as a result of any defect in the Goods shall be limited, at our option, to the replacement of the defective Goods or the refund of a maximum amount equal to amounts actually paid by you to us in respect of the defective Goods.
6.5 Customer warranties: You represent and warrant to us that:
(a) you have taken all necessary action to authorise the placement of each order and agreement to these Terms and the performance of your obligations under any order and these Terms will constitute legal, valid and binding obligations on you;
(b) all information you have provided to us is true and correct; and
(c) you are not insolvent and are able to pay your debts as and when they fall due.
7. DEFAULT AND TERMINATION
7.1 Failing to Meet Payment Obligations: Where we consider (in our sole discretion) you may be unable to meet your payment obligations to us, we may, without limiting our other rights and remedies, do all or any of the following:
(a) Require you to stop selling or otherwise disposing of the Goods;
(b) Demand payment of all or part of any sums due;
(c) Require security (or where security has already been provided, further security) for your obligations before we make any further supplies to you;
(d) Without notice, withhold deliveries of Goods ordered by you.
7.2 General Default: Where:
(a) You are in breach of any of these Terms (including failure to make payment on the due date); or
(b) You become insolvent or are adjudicated bankrupt or an application is made for your liquidation or a liquidator or a receiver is appointed in respect of your assets; or
(c) You no longer carry on business or threaten to stop carrying on business; or
(d) An arrangement is made or likely to be made with your creditors;
then, without prejudice to our other rights and remedies, we may do all or any of the following:
(e) Where you have failed to make payment on a due date, require you to compensate us by making payment to us 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 16% per annum (in addition to you remaining liable for the full amount outstanding);
(f) Cancel all or any part of any order and this and any other contract of supply with you;
(g) Recover and/or resell any of the Goods and enter any premises where we believe the Goods are stored and you grant us an irrevocable right and authority to do so. We may only recover and resell for our own account sufficient Goods to satisfy all unpaid liability, the cost of recovery and resale and the costs referred to in clause 7.3 If we recover any excess, we will not be liable in damages to you but must account to you for the excess.
7.3 Costs & Expenses: You will pay all costs and expenses (including indemnity costs on a solicitor/client basis and debt collector’s costs) we incur in enforcing or attempting to enforce our rights under this clause 7. We may deduct any costs and expenses incurred from the proceeds of sale of any Goods recovered from you.
7.4 Application of Payments: Your payments will be applied first in reduction of interest, liquidated damages and costs due under this clause, with the balance being applied in reduction of any amounts due under clause 4.
7.5 No limitation of other rights: Termination under clause 7.1 or 7.2 will not limit or affect any other rights or remedies we may have under these Terms or at law.
8. FORCE MAJEURE
8.1 We shall not be liable for any loss or damages suffered by you due to a failure by us to perform our obligations, where such failure is due to circumstances which are beyond our reasonable control including, without being limited to, acts of God, terrorism, war, epidemic, pandemic, strike, industrial action, shortage of materials and delays or failures by suppliers including any form of shipping.
9. ENTIRE AGREEMENT
9.1 These Terms together with any order and any ancillary agreement will constitute the entire agreement concerning the supply of Goods. No representation, warranty, term or condition shall be binding on us unless it is included in these Terms or an order.
10.1 Any failure by us to exercise a right under these Terms shall not constitute waiver of that right.
11.1 These Terms will be construed and take effect as a contract made in New Zealand and, along with the supply of all Goods hereunder, will be governed by New Zealand law, and the parties submit to the exclusive jurisdiction of the New Zealand courts.
11.2 If any provision of these Terms shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected or prejudiced or impaired.
11.3 We may license or sub-contract all or any part of our rights and obligations under these Terms without your consent.
11.4 We reserve the right to review these Terms at any time and from time to time. If following any such review there is to be any change in these Terms that change will take effect from the date on which we notify you of such change or the date on which you place an order (whichever is earlier).