1. Definitions

“PEL” means Pacific Errands Limited, its successors, subsidiaries, group and assigns or any person or entity acting on behalf of and with the authority of PEL.

“Customer” means the person requesting the Goods and/or Services (including their agent or any person acting on behalf of them) and if there is more than one Customer then to each Customer jointly and severally.

“Freight Price” means the cost or costs associated with shipping the Goods to the Customer.

“Goods” means the items and/or equipment (excluding items which PEL, at its sole discretion, deems to be dangerous or offensive) being ordered by the Customer, and acquired by PEL on behalf of for the Customer.

“Guarantor” means that person (or persons), or entity that agrees to be liable for the debts of the Buyer on a principal debtor basis.

“Price” means the price payable (plus the Freight Price, sales tax, customs duty, any other taxes, fees or duties, and GST (if any)) by the Customer for the Goods and/or Services, in New Zealand Dollars.

“Services” means all and any services requested by the Customer to PEL, including but not limited to arranging freight and storage (if any) of the Goods.

“Working Day” means a day on which registered trading banks are open for business in Auckland, New Zealand (other than a Saturday, Sunday or public holiday).

2. Terms

2.1 It is agreed that these Terms of Trade (including updates from time-to-time) contain the entire agreement between PEL and the Customer and that there are no promises, terms, conditions or obligations and no warranties or representations, other than those contained in these Terms of Trade or otherwise required by New Zealand law.

3. Agency

3.1 PEL agrees to act for the Customer as its agent, to acquire the Goods and/or Services for the Customer, on a non-exclusive basis upon the terms and conditions contained herein.

4. Acceptance

4.1 Any written instructions received by PEL from the Customer for the supply of Goods and/or Services shall constitute acceptance of these Terms of Trade.

5. Process, Price and Payment

5.1 Upon the Customer providing a written request for Goods/Services to PEL, PEL will use its best endeavours to source such Goods and/or Services, and if the requested Goods and/or Services are available for supply, PEL will then forward to the Customer a written cost estimate.  The cost estimate is open for acceptance by the Customer for a period of 7 days, calculated from the date of PEL’s cost estimate (unless otherwise agreed).

• If the Customer does not provide PEL with written confirmation of its acceptance of the cost estimate within 7 days, then the cost estimate shall be subject to further review and confirmation by PEL, at its sole discretion.
• Once the Customer provides PEL with written confirmation that it accepts the cost estimate, PEL will issue the Customer with an invoice for the Goods/Services.

5.4 The Price payable by the Customer shall be that which is indicated on any invoice issued at any time to the Customer.

5.5 The Customer must pay the Price specified in the invoice to PEL within two (2) working days of the invoice date, time being of the essence.  If the invoice is not paid within the specified timeframe, PEL shall be entitled to cancel the Customer’s order, at its sole discretion. 

5.6 Prior to shipping the Goods, PEL will provide the Customer with a further invoice for freight and associated charges (if any).  The Freight Price specified in the invoice must be paid by the Customer within two (2) working days of the invoice date, time being of the essence.  If the invoice is not paid within the specified timeframe, PEL shall be entitled to cancel the Customer’s order, at its sole discretion.

5.7 For the avoidance of doubt, PEL is under no obligation to ship Goods or provide Services, until the Customer has paid the Price and Freight Price as specified in the respective invoices.

5.8 Payment of the Price and Freight Price may be made by electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to in writing.

5.9 PEL, at its sole discretion, reserves the right to change the Price and/or the Freight Price if the Customer requests a variation of its order/s. Any costs whatsoever associated with any variation will be charged and shown as variations on the invoice issued by PEL to the Customer.

5.10 In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by PEL.

6. Shipping and Delivery

6.1 With regard to shipping and delivery of Goods, the Customer acknowledges that PEL shall act as a forwarding agent only.

6.2 PEL ships Goods FOB Origin, meaning that the Customer must pay all shipping, insurance and importation related costs, taxes and duties, and the Customer is responsible for delivery, including any delays in delivery, and risk of loss or damage to the purchased Goods once the Goods have been collected by or delivered to the shipping carrier at origin.  FOB Origin includes PEL’s location or the location of a third party PEL has arranged or contracted to supply or ship Goods.

6.3 PEL shall be entitled, at the Customer’s cost, to enter into contracts on behalf of and as agent for the Customer, for the carriage of the Goods by any route, means and carrier, for the storage, packing, trans-shipment, unloading, loading or handling of the Goods by any person at any place and for any length of time, and for such other matters as in the opinion of PEL may be necessary or desirable to ensure the Goods are delivered to the Customer.

6.4 The Customer hereby appoints PEL the agent of the Customer for the purpose of entering into any contract, upon such terms and conditions, as PEL may in its absolute discretion think fit. The Customer shall be bound by the terms of any consignment note, air waybill or other contractual document which PEL may receive for the Goods, or for any package, unit or container in which the Goods may be packed, whether by the Customer, PEL, or any other person.

6.5 If the Customer instructs PEL to use a particular method of shipping – whether by road, rail, sea or air, PEL will use its best endeavours to accommodate the method designated by the Customer however if that method cannot conveniently be adopted by PEL the Customer shall be deemed to authorise PEL to carry or have the Goods carried by another method or methods.

6.6 Delivery of Goods and Services shall be deemed complete when PEL gives possession of the Goods either:

(a) directly to the Customer or the Customer’s nominated agent; or

(b) possession of the Goods is given to a carrier, courier, or other bailee for purposes of transmission to the Customer.

6.7 If deemed necessary, PEL may arrange for delivery of the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the invoice issued to the Customer and provisions in these Terms of Trade.

6.8 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery for the purposes of these Terms of Trade.

6.9 It is the Customer’s sole responsibility to provide accurate and clear written delivery instructions to enable effective shipment and delivery.  PEL is not responsible or liable for failure to deliver or for any delay in delivery where such failure or delay is occasioned directly or indirectly by any cause or causes whatsoever, beyond PEL’s reasonable control.

6.10 Any failure in respect of shipping and or delivery shall not entitle the Customer to treat this contract as repudiated.

7. Storage

7.1      If PEL is obliged to arrange or provide storage due to any request, rescheduling, omission, oversight or default by the Customer, then PEL shall be entitled to charge the Customer for storage at the relevant storage provider’s rates.

8. Risk and Liability

8.1 Risk passes to the Customer after the Customer has paid in full the Price and Freight Price (and associated costs) and then upon PEL giving possession of the Goods either, 1) directly to the Customer or the Customer’s nominated agent, or 2) possession of the Goods is given to a carrier, courier, or other bailee for purposes of shipping/delivery to the Customer.

8.2 The Goods travel at the Customer’s risk unless otherwise specified. PEL is not responsible for loss or damages resulting from loss of the Goods whilst in the air, traveling by land or rail, or at sea, or failure to make shipment within the specified time or at all, when such failure is due to fire, strike, boycott, flood, earthquake, windstorm, war, riot or revolution, government restriction or prohibition.

8.3 Subject to any statutory provisions in the Consumer Guarantees Act 1993 or the Fair Trading Act 1986 imposing liability in respect of the quality, fitness for purpose, loss of or damage to the Goods (including but not limited to chilled, frozen, refrigerated or perishable Goods):

(a) PEL shall not be under any liability for any damage to, or the loss, deterioration, mis-delivery, delay in delivery or non-delivery of, the Goods (whether the Goods are or have been in the possession of PEL or not) nor for any instructions, advice, information or service given or provided to any person, whether in respect of the Goods or any other thing or matter, nor for any consequential or indirect loss, loss of market or consequences of delay; and

(b) the Customer will indemnify PEL against all claims of any kind whatsoever, howsoever caused or arising brought by any person in connection with any matter or thing done, said or omitted by PEL in connection with the Goods. 

8.4 The provisions of the Consumer Guarantees Act 1993 are expressly excluded for all orders and transactions for Goods and/or Services which are supplied by PEL to the Customer for the purposes of a business.

8.5 Notwithstanding anything else in these Terms of Trade, any liability of PEL, which may arise from breach of any of PEL’s obligations under these Terms of Trade, from any cancellation of the contract or from any negligence on the part of PEL, its servants, agents or contractors shall be limited to damages which shall not in total exceed the contract Price.

9. Changes In Duty and/or Freight Rates

9.1 Any changes, after date of this contract, to the rate of duty, destination country import taxes, or valuations by the destination country’s Customs, shall be for the account of the Customer unless otherwise specified.  Any changes in freight rates between contract date and bill of lading date shall be for the account of the Customer when Goods are purchased on an FOB basis.

10. Insurance

10.1 The Customer is responsible for obtaining an open policy or such other form of insurance to protect themselves and the Goods on shipments made, whether advices thereon are received or not. In cases where PEL has agreed to arrange insurance for the Goods (including during transit/delivery), it shall be at the Customer’s cost and insured for 110% of the C&F value and for all risks.

11. Detention

11.1 Goods are sold and shipped to the Customer subject to inspection and/or passing by the destination country’s Customs Agency, or by any other Government Department, Bureau or Agency with jurisdiction over importation of goods. Should the Goods or any part of them be detained at the Port of Customs Entry by the destination Government and not eventually released for entry after reasonable efforts have been made by the Customer to remove such detention, it is agreed that PEL is not liable in any respect and PEL is not required to make a replacement of the Goods nor make any refund of the Price and/or shipping costs.

12. Privacy Act 2020

12.1 The Customer, including any director signing on behalf of the customer and any/all guarantor/s, authorises PEL to hold and use information relating to these Terms of Trade for any purposes connected with PEL’s business including (but not limited to) the provision of insurance, debt recovery, credit reporting or assessment and to register any security interest, including collecting information from and disclosing information to related companies, underwriters, external credit reporting agencies, debt collection agencies, trade referees and other third parties..

12.2 The Customer authorises PEL to disclose any information obtained to any person for the purposes set out in clause 12.1.

12.3 Where the Customer is a natural person the authorities under (clause 12.1 & 12.2) are authorities or consents for the purposes of the Privacy Act 2020.

12.4 Customers have the right to access and correct their personal information by contacting PEL.

13. Defects/Returns

[on export from origin, no local warranty and or guarantees will apply. Any faulty goods will be returned at the customers cost.

13.1 The Customer shall inspect the Goods on delivery and shall within five (5) days of the delivery date notify PEL of any alleged defect, shortage of quantity, damage or failure to comply with the description.

13.2 The Customer shall afford PEL (or its agent) an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the goods are defective in any way.

13.3 If the Customer fails to comply with these provisions the Goods will be conclusively presumed to be in accordance with the description and free from any defect or damage.

13.4 For defective goods which PEL has agreed in writing that the Customer is entitled to reject, PEL’s liability is limited to either (at PEL’s discretion) replacing the goods or repairing the goods provided that:

(a) the Customer has complied with the defects/returns provisions above;

(b) the goods are returned at the Customers cost within fourteen (14) days of the written agreement of rejection;

(c) PEL will not be liable for goods which have not been stored or used in a proper manner;

(d) the goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.

13.5 PEL may (in its discretion) accept the goods for credit but this may incur a restocking fee of 15% of the value of the returned goods plus any freight.

13.6 Subject to the provisions above, if the Goods being supplied to the Customer include a manufacturer warranty or guarantee, PEL will use its best endeavours to assist the Customer to enforce any guarantee or warranty given by the manufacturers of the Goods.

14. Cancellation

14.1 These Terms of Trade are effective unless and until cancelled by either the Customer or PEL however the obligations and liabilities of the Customer incurred prior to the cancellation date shall survive the cancellation.

14.2 If in PEL’s sole judgment the Customer fails to comply with any term or provision of these Terms of Trade, PEL reserves the right to cancel the Customer’s order and the agreement between PEL and the Customer, at any time without notice and the Customer will remain liable for all amounts due up to and including the date of cancellation.

15. Personal Guarantee/s

15.1 This clause 15 applies where the Customer is a company or a trust or a Government Ministry/Department, and the director(s) or trustee(s) or duly appointed delegate (or official) will or have ordered Goods and/or Services from PEL.

15.2 In consideration for PEL agreeing to supply Goods and/or Services to the Customer, at the Guarantor’s request (as is now acknowledged), the Guarantor unconditionally and irrevocably guarantees the obligations of the Customer upon the terms and conditions specified in the Guarantee attached hereto.

16. General

16.1 The failure by PEL to enforce any provision of these Terms of Trade shall not be treated as a waiver of that provision, nor shall it affect PEL’s right to subsequently enforce that provision. If any provision of these Terms of Trade shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

16.2 These Terms of Trade apply to all Goods and/or Services supplied by PEL and take precedence over any terms set out in any document relied on by the Customer, unless otherwise agreed in writing by PEL.

16.3 These Terms of Trade and any application and/or order and/or contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts in New Zealand.

16.4 PEL may licence and/or assign all or any part of its rights and/or obligations under these Terms of Trade (including any application and/or order and/or contract to which they apply), without the Customer’s consent.

16.5 The Customer cannot licence or assign its order or obligations under these Terms of Trade without the prior written approval of PEL which shall be at the sole and unfettered discretion of PEL.

16.6 PEL reserves the right to review these Terms of Trade at any time. If, following any such review, there is to be any change to these Terms of Trade, then the change/s will take effect from the date on which PEL notifies the Customer of such change or posts the amended Terms of Trade on its website. 

16.7 PEL shall not be liable for any default due to any act or event beyond the reasonable control of PEL, including but not limited to – act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, and pandemic or national/international emergency.

16.8 If any part, term or provision of these Terms shall be held invalid, void, illegal or unenforceable the validity, existence, legality or enforceability of the remainder of these Terms of Trade shall not be affected, prejudiced or impaired.

16.9 Both PEL and the Customer undertake that they have the power and/or authority to enter into a contractual relationship for the Goods and/or Services, and also to fulfil the obligations contained in these Terms of Trade, and that each has taken and will take all necessary action (corporate and otherwise) to authorise the execution, delivery and performance of their respective obligations under these Terms.

16.10  Nothing in these Terms shall constitute a partnership between the parties or constitute the parties as joint venturers.