JFC New Zealand Limited Terms and Conditions of Sale

Interpretation
1. In these terms, unless the context requires otherwise:
  “Buyer” means the purchaser or proposed purchaser of Goods from the Seller;
  
  “Goods” means any products or things supplied or to be supplied by the Seller to the Buyer;
  
  “GST” means goods and services tax under the Goods and Services Tax Act 1985;
  
  “Guarantors” means each of the persons identified below as guarantors;
  
  “Order” means any order or request for Goods or Services;
  
  “PPSA” means the Personal Property Securities Act 1999;
  
  “Seller” means JFC New Zealand Limited NZBN 9429035456117 and its successors and assigns; and
  
  “Services” means anything other than Goods supplied or to be supplied by the Seller to the Buyer.
2. In these terms, the singular includes the plural and vice versa.
3. In the event that any provision of these terms is held to be void or otherwise invalid, that provision is to be severed from the remainder of these terms, which will otherwise remain of full force and effect.
4. None of these terms are to be construed adversely against a party solely because the party was responsible for drafting the terms.
5. The failure of the Seller to exercise any of its rights under these terms will not constitute a waiver of the right unless expressly stated so in writing.
Orders
1. Where the Buyer places an Order, it is an offer to acquire the Goods and Services the subject of the Order upon these terms, which is an offer the Seller may accept or reject at its absolute discretion.
2. For the avoidance of doubt, the inclusion of any other proposed terms in any Order or other document from the Buyer will not prevail over these terms unless the Seller expressly agrees so in writing, overriding any implicit acceptance by delivery or partial performance.
3. The Buyer warrants that all of its Orders are for business or investment purposes, and not personal, domestic or household use.
Delivery and Timing
1. The Seller will use reasonable endeavours to fulfil Orders (if accepted by the Seller) within the time requested by the Buyer or otherwise agreed, but unless expressly agreed in writing, the Seller is not obligated to meet the specified delivery date.
2. The Seller will not be liable for any loss or obligated to pay any damages or compensation for failure to deliver the Goods by the requested date, unless the Buyer specifically notified the Seller in writing at the time of placing the Order that the Goods were required by that date, and the Seller accepted the Order on that basis. The Seller’s liability is further limited to cases of gross negligence and does not extend to delays caused by external factors beyond its control.
3. The risk of any loss or damage to the Goods transfers to the Buyer upon either the delivery of the Goods to the Buyer or when the Goods are handed over to any carrier or third party (excluding the Seller) for delivery to the Buyer, whichever occurs first.
4. Buyer Responsibility and Delivery Instructions:
  Buyers are advised to ensure that they or a designated representative are available to receive perishable or temperature-sensitive deliveries at the time of delivery to avoid any compromises to product quality. Seller reserves the right to refuse responsibility for items left unattended at the Buyer’s request in areas where appropriate temperature conditions are not assured.
5. Non-Liability for Refrigerated Product Storage Instructions:
  Seller shall not be liable for any loss, damage, or deterioration in product quality if the Buyer or their agent instructs Seller or its delivery personnel to leave perishable, refrigerated, or frozen items in an environment that does not maintain required refrigeration or freezing temperatures. Seller’s responsibility for the quality of perishable products extends only to those instances where the delivery is received by the Buyer directly or stored immediately in a suitable temperature-controlled environment as specified in the product guidelines.
Price and Payment
1. Unless otherwise stated, any prices stated by the Seller are exclusive of GST and delivery charges.
2. Unless the Seller has agreed to grant credit to the Buyer, the Buyer must pay for any Order immediately before any Goods or Services are first due to be provided under it, or if there is no such time then immediately upon invoicing by the Seller. Additional conditions may apply to late payments, detailed in the Product Return Policy.
3. If the Seller has agreed to grant credit to the Buyer, then payment will be due in accordance with the terms of that credit as agreed in writing, or in the absence of such written agreement, within 7 calendar days of the provision of the Goods or Services for which payment is to be made.
4. The Seller may, at its absolute discretion, set a credit limit for the Buyer. Any Orders that would exceed this limit will require payment in advance unless otherwise agreed in writing by the Seller.
5. Unless specifically agreed to in writing, any agreement by the Seller to grant credit to the Buyer may be withdrawn by the Seller at any time and at its absolute discretion for any Goods and Services not yet provided, in which case clause 4.b above will apply to them.
6. Time is of the essence in respect of the Buyer’s payments.
7. The Buyer must make payments to the Seller in full and without any set-off or deduction. However, the Seller may at its option set off amounts owed by the Buyer against any amounts that would otherwise be payable to the Buyer.
8. The Seller reserves the right to adjust the price of Goods or Services to account for any unforeseen increases in costs, including but not limited to material price increases, supply chain disruptions, or changes in taxes or duties. The Buyer agrees to pay any such adjusted price upon receiving notice from the Seller.
9. All payments must be made by the Buyer in the currency specified on the provided Invoice. The Buyer is responsible for any currency exchange fees, bank fees, or other transaction fees that may apply.
10. The Seller may, at its discretion, charge any outstanding amounts owed by the Buyer to any credit or debit card held on file and provided by the Buyer in an event of default of payment by the due date. The Buyer expressly authorises the Seller to charge such amounts to the credit or debit card without further notice, in accordance with the Payment Card Industry Data Security Standard (PCI DSS) and applicable New Zealand privacy laws.
Retention of Title
1. Ownership of Goods
  1. Title and ownership of the Goods shall remain with the Seller until the Buyer has paid all monies owing to the Seller on any account whatsoever, including any additional costs, fees, interest where applicable, or charges.
2. Identification and Storage of Goods
  1. The Buyer shall, at its own expense, store the Goods separately from all other goods held by the Buyer in such a manner that they are clearly identifiable as the Seller's property.
  2. The Buyer agrees to maintain appropriate records to ascertain which Goods have been paid for and which remain unpaid.
3. Presumption of Unpaid Status
  1. If at any time it becomes necessary to determine whether the Goods or any part thereof have been paid for, they will be presumed unpaid unless the Buyer can provide evidence to the contrary to the Seller's reasonable satisfaction.
4. Right of Entry and Repossession
  1. In the event of default by the Buyer in any payment or other obligation, the Seller and its agents shall have the right, without notice, to enter any premises occupied by the Buyer to repossess the Goods.
  2. The Buyer agrees to facilitate this process and to indemnify the Seller for all costs incurred in recovering the Goods, including, but not limited to, legal fees, transportation, and storage costs.
5. Limited Use and Sale Rights
  1. The Buyer is permitted to use or sell the Goods in the ordinary course of its business, provided that any sale of the Goods will be deemed as made by the Buyer as trustee for the Seller, creating a fiduciary relationship between the parties.
  2. The Buyer must not otherwise sell, dispose, or encumber the Goods without the Seller's express written consent.
6. Proceeds and Trust
  1. The Seller's rights extend to all proceeds (as defined in the PPSA) arising from the sale, disposal, or use of the Goods.
  2. Any proceeds of such sales must be held in trust by the Buyer for the Seller, with monetary proceeds remitted immediately to the Seller.
7. PPSA Rights and Waiver
  1. The Order constitutes a security interest in the Goods supplied by the Seller to the Buyer for the purposes of the PPSA as security for payment by the Buyer of all amounts due under the Order, including any future amounts.
  2. The Buyer agrees to promptly execute and deliver to the Seller all assignments, transfers and other agreements and documents and do anything else which the Seller may deem appropriate to perfect the Seller’s security interest over the Buyer, or obtain the priority required by the Seller or register (and renew registration) a financing statement for a security interest in favour of the Seller.
  3. To the extent that Part 9 of the PPSA applies, the Buyer agrees that the provisions of sections 114(1)(a), 120, 122, 133 and 134 of the PPSA which are for the Buyer’s benefit, or place any obligations on the Seller in the Buyer’s favour, will not apply; and where the Seller has rights in addition to those in Part 9 of the PPSA, those rights will continue to apply.
  4. To the extent that Part 9 of the PPSA applies, without limiting anything in the previous paragraph, the Buyer hereby waives its rights under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA, and its rights to receive a copy of a verification statement under section 148 of the PPSA in respect of any financing statement or financing change statement registered by the Seller.
  5. The Buyer agrees to treat the security interest in the Goods as a continuing and subsisting security with priority over a registered general security interest and any unsecured creditors, regardless of whether the Goods have become fixtures at any time before payment has been made for them.
  6. The Buyer agrees to promptly execute any documents or do any actions required to perfect the Seller’s security interest in the Goods and acknowledges that this clause constitutes a security agreement under the PPSA.
8. Power of Attorney
  1. To protect its interest in the Goods, the Buyer irrevocably appoints the Seller and each of its officers as its attorney to do anything that the Seller considers necessary to protect its rights in the Goods and proceeds.
  2. This includes signing documents and taking any action that may be required to register or enforce the Seller’s security interest under the PPSA.
9. Indemnity
  1. The Buyer shall indemnify the Seller against any costs, expenses, damages, or loss arising from the Buyer’s breach of any of its obligations in this Retention of Title clause, including but not limited to storage, identification, and retrieval of the Goods, as well as any actions required to enforce the Seller’s rights under the PPSA.
Default
1. If the Buyer fails to make any payment to the Seller as due, the Seller may (in addition to any other rights it may have):
  1. Withhold any Goods or Services not yet provided to the Buyer while the failure remains unrectified (whether or not the failure to pay relates to those particular Goods or Services);
  2. Take possession of any Goods that continue to be owned by the Seller (see clause 5 above); and
  3. Unless the Buyer rectifies the non-payment within 2 business days of being required to do so, cancel any outstanding Orders of the Buyer, in which case the Buyer will be liable to the Seller for any loss caused by the cancellation.
2. All amounts overdue to be paid to the Seller accrue a late fee of NZD$50 per month plus an interest at a rate of 24% per annum, calculated daily and compounding on the first day of each calendar month. For example, if NZD$1,000 is overdue for a period of one calendar month, the total sum due would be NZD$1,070.19 including the late fee and interest.
3. The Buyer is to indemnify the Seller in respect of all costs and expenses incurred (including collection agent costs, costs associated with repossessing Goods, and legal costs on a full indemnity basis) arising out of any failure to pay any amount due to the Seller as due, or otherwise arising out of any other breach of the Buyer’s obligations to the Seller or the enforcement of those obligations or the Seller’s rights in respect of them.
4. By way of security for all obligations owed by it to the Seller, the Buyer charges in favour of the Seller:
  1. All of its present and after-acquired property; and
  2. All of its right, title and interest in any real property that it now or in the future owns, and consents to the Seller lodging a caveat or caveats in respect of this charge.
5. A certificate signed by an authorised employee of the Seller as to an amount owed by the Buyer to the Seller, or that certain Goods have not been paid for, will be conclusive and binding in the absence of manifest error.
6. If the Buyer defaults on any payment or other obligation under these terms by the due date, the Seller may, at its discretion, charge any outstanding amounts owed by the Buyer to any credit card or debit card held on file for the Buyer, or demand immediate payment of all outstanding amounts owed by the Buyer, including any amounts not yet due under these terms.
Buyer's Responsibility Upon Change of Ownership
1. All obligations, liabilities, and responsibilities of the Buyer under these terms and conditions shall remain in full force and effect and continue to apply in the event of any sale, transfer, or change of ownership, management, or control of the Buyer’s business.
2. The Buyer, and any subsequent owners or successors, shall be jointly and severally liable for all obligations incurred before, during, and after any transfer of ownership unless the Seller explicitly agrees in writing to release any party from such obligations.
3. The Buyer agrees to notify the Seller in writing at least 14 days prior to any change in ownership, management, or control of the Buyer's business. This includes, but is not limited to, the sale, transfer, or assignment of the Buyer's business, assets, or any controlling interest in the Buyer. Failure to provide such notice will result in the Buyer remaining liable for all outstanding debts and obligations due to the Seller, irrespective of any change in ownership or control. If the previous owner leaves any outstanding balance, the amount owing may be recovered by Seller through any available payment method at the end of the operating date.
4. In the event of a change in ownership, the Buyer shall remain jointly and severally liable with the new owner for any outstanding amounts owed to the Seller as of the date of transfer, unless the Seller, in its absolute discretion, expressly releases the Buyer in writing from this obligation. For the avoidance of doubt, this clause applies regardless of any contractual or legal arrangement between the Buyer and the new owner.
5. If the Buyer intends to transfer ownership to a new party, the Seller reserves the right to require a personal guarantee from the new owner and/or to lodge a security interest over the Buyer's assets or property prior to the transfer in accordance with the PPSA. This requirement will remain in effect until all outstanding debts are cleared or an agreement has been reached with the Seller regarding the assumption of debt by the new owner.
6. The Buyer acknowledges that all amounts owed to the Seller are due and payable in full before any ownership transfer. The Seller may withhold Services, deliveries, or credit until such payments are received, or until satisfactory arrangements for the assumption of debt by the new owner are made in writing with the Seller.
Warranties and Limitations on Liability
1. Each of the provisions of this clause 8 are to take effect to the maximum extent permitted by law, but for the avoidance of doubt do not limit or exclude any rights that cannot be limited or excluded by law, including any non-excludable rights under the New Zealand Consumer Law.
2. The Seller makes no warranties as to the particular characteristics or fitness for any particular purpose of any Goods sold by it unless expressly agreed in writing otherwise.
3. The Seller is not liable for any loss or damage suffered by the Buyer due to any breach of any obligation owed by the Seller to the Buyer resulting from any cause outside the reasonable control of the Seller (including, for example, due to the failure of third parties to supply to the Seller, the imposition of governmental restrictions, or transportation issues).
4. Without limiting clause 8.c above, the Seller is not to be liable to the Buyer for any consequential loss or indirect loss, including loss of business or profits, resulting from any alleged breach of any obligation owed by the Seller to the Buyer however arising.
5. Wherever permissible by law, the Seller’s liability for any breach of any guarantee or obligation is, at the Seller’s option, limited to the resupply of the relevant Goods (or equivalent goods) or Services or the payment of the cost of replacing the Goods or acquiring equivalent goods.
6. The Buyer assumes all risks associated with the use, handling, and storage of the Goods. The Seller shall not be liable for any harm, injury, or damage resulting from improper use, handling, or storage of the Goods by the Buyer or any third party.
7. The Buyer agrees to indemnify and hold harmless the Seller from any third-party claims, losses, damages, or expenses arising out of or in connection with the Buyer’s use of the Goods, including any failure to comply with applicable laws, regulations, or industry standards.
8. The Seller warrants that it will repair or make good any defects in the Goods, if written notice of the claim is received by the Seller within seven (7) days from the date the Goods were delivered. No claim shall be accepted under such warranty if any attempt to repair the defective Goods is made by any person not authorised by the Seller, or if the defective Goods have been modified or incorrectly stored, maintained or used. If the Seller elects to repair or replace any defective Goods, such work shall be undertaken at such place as the Seller may reasonably specify and the Buyer shall be responsible at its cost and risk for shipment of the defective Goods to the place specified.
9. If the Buyer is acquiring products and/or Services for the purposes of a trade or business, the Buyer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by the Seller to the Buyer.
Governing Law and Courts
1. These terms, and any supply of Goods or Services, are to be governed and construed by the laws of New Zealand.
2. These terms, and any supply of Goods or Services, apply in all jurisdictions where Seller operates.
3. Any proceedings relating to or arising out of these terms or in any way connected to any dealings subject to these terms must be (if brought by the Buyer) or may be (if brought by the Seller) brought in a court of New Zealand.
Dispute Resolution
1. The Seller will endeavour to resolve any dispute between the Buyer and itself without the need for Court proceedings. Any such attempt is without legal prejudice.
Cancellation
1. The Seller may cancel any Order to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by written notice to the Buyer. On giving such notice the Seller shall repay to the Buyer any sums paid in respect of the price. The Buyer shall not be liable for any loss or damage whatever arising from such cancellation.
2. In the event that the Buyer cancels delivery of the Goods the Buyer shall be liable for any loss incurred by the Seller (including, but not limited to, any loss of profits) up to the time of cancellation.
Privacy Act 2020
1. The Buyer and the Guarantors (if separate to the Buyer) authorises the Seller to:
  1. collect, retain and use any information about the Buyer, for the purposes of assessing the Buyer's creditworthiness or marketing products and Services to the Buyer; and
  2. disclose information about the Buyer, whether collected by the Seller from the Seller directly or obtained by the Seller from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Buyer.
2. Where the Buyer and/or Guarantors are an individual the authorities under clause 13(a) are authorities or consents for the purpose of the Privacy Act 2020.
3. The Buyer and/or Guarantors shall have the right to request the Seller for a copy of the information about the Buyer and/or Guarantors retained by the Seller and the right to request the Buyer to correct any incorrect information about the Buyer and/or Guarantors held by the Seller.
JFC New Zealand Limited – Guarantee and Indemnity
1. In consideration of Seller granting credit to the Buyer (as defined below) from time to time, each of the Guarantors named below jointly and severally agree to the terms set out in this guarantee and indemnity:
2. In this guarantee and indemnity, unless the context requires otherwise:
  1. “Buyer” means the buyer or customer identified above and, where this guarantee forms part of an application for credit, the applicant/s in that application – for the avoidance of doubt, if different persons are identified in those places, then this guarantee and indemnity is to operate in respect of all such identified persons.
3. The Guarantors guarantee to the Seller the due and punctual payment to it of all monies owed by the Buyer and the performance of all other obligations owed to the Seller by the Buyer on any account whatsoever.
4. The Guarantors indemnify the Seller against any losses or expenses it may incur due to:
  1. Any failure of the Buyer to comply with any of its obligations to the Seller, including legal fees and other expenses associated with the Buyer’s default, and including as to the payment of money;
  2. The unenforceability against the Buyer of any obligation that would otherwise be owed by the Buyer in respect of an Order placed by it, including by reason of any legal limitation, incapacity or disability, or any transaction or aspect of a transaction being void, voidable, or illegal;
  3. The avoidance of any payment to the Seller in connection with a liability owed by the Buyer to the Seller, regardless of the person by whom the payment was made or to whom the Seller is required to repay it – for the avoidance of doubt, this includes payments avoided as unfair preferences, and payments made by Guarantors whether under this guarantee and indemnity or otherwise.
5. To the greatest extent permissible by law, no fact, matter, or circumstance is to affect the enforceability of this guarantee and indemnity against the Guarantors. In particular, the obligations of the Guarantors are to be unaffected by:
  1. Any indulgence, leniency, extension of time, compromise, or release granted to the Buyer or another guarantor;
  2. The release or impairment of any security;
  3. The increase, decrease, or disregarding of any credit limit requested by or granted to the Buyer;
  4. Any change of any nature in the terms upon which the Seller trades or deals with the Buyer;
  5. The enforceability or unenforceability of this guarantee against any other guarantor or anticipated guarantor (including by reason of the non-execution, or ineffective execution, of this guarantee and indemnity by that person, or the withdrawal or release of a guarantor).
6. By way of security for all obligations owed by them to the Seller, the Guarantors charge in favour of the Seller all of their right, title and interest in any real property that they now or in the future own, and consent to the Seller lodging a caveat or caveats in respect of this charge.
7. A certificate signed by an authorised employee of the Seller as to an amount owed pursuant to this guarantee and indemnity will be conclusive and binding in the absence of manifest error.
8. Until the Seller is paid in full, the Guarantors will not exercise any right of subrogation to the Buyer or seek to exercise any rights in competition to the Seller.
9. The Guarantors will indemnify the Seller in respect of all costs and expenses incurred (including collection agent costs and legal costs on a full indemnity basis) arising out of any failure to pay any amount due to the Seller as due, or otherwise arising out of any other breach of the Guarantors’ obligations to the Seller or the enforcement or protection of the Seller’s rights in respect of such obligations.
10. The Guarantors acknowledge and agree that this guarantee and indemnity is not subject to any prior demand or enforcement of remedies against the Buyer. The Seller may enforce this guarantee directly against the Guarantors without first pursuing any remedies against the Buyer.
11. This guarantee and indemnity will remain in effect and binding upon the Guarantors regardless of any assignment, transfer, or sale of the Buyer’s obligations to another party, unless expressly released by the Seller in writing.
12. The Guarantors agree that this guarantee and indemnity remains in effect until the Seller has received payment in full for all amounts due and payable, including interest, costs, and any fees. Any partial payment or settlement made by the Buyer does not release the Guarantors from their obligations hereunder.
13. The Guarantors acknowledge that their obligations under this guarantee and indemnity are irrevocable, unconditional, and remain effective despite any variations, extensions, or modifications made to the Buyer’s obligations.

v1 Updated 13/03/2025