Terms & CONDITIONS OF SALE

BADASS BEVERAGES LIMITED

1.           Application

By accepting these terms and conditions (Terms) the Customer agrees these Terms apply to every sale of Product by Badass Beverages Limited (Badass or We or Us) to you (Customer), unless specifically agreed otherwise in writing. The terms of any purchase order the Customer submits to us do not apply and are expressly excluded.   

2.           ORDERING PRODUCT

Orders for Product must be made by email or phone (or such other method as Badass advises). An order is not binding on Badass until accepted by Badass. Any variation or cancellation of an order is at Badass’ sole discretion.

3.           PRICING, PAYMENT AND CREDIT

(a)         Badass may alter its price list at any time without notice. The Customer must pay the price for Products indicated on the invoice (or other similar document) which is provided by Badass for those Products, plus any additional amounts for freight and delivery charges.

(b)         The price shall be increased by the amount of any GST and other applicable taxes and duties if such taxes are not expressly included in the price.

(c)         Payment is due on or prior to delivery unless Badass has agreed in writing to provide Customer with credit in which case payment is due by the 20th of the month following the date of the invoice.

(d)         The Customer must pay each invoice by the due date without set-off, counterclaim or deduction, unless Badass has provided prior consent. If any invoiced amount remains unpaid after the due date Badass may (without prejudice to Badass’ other rights and remedies) charge the Customer interest on the amount owing at the rate of 5% per annum above the retail lending base rate of Badass’ banking provider from the due date to the date of actual payment in full.  

(e)         Badass can vary the terms of any credit it provides to the Customer at any time. If Badass considers the credit worthiness of the Customer is unsatisfactory then it can require security for payment, in addition to that already provided for in these Terms, before it supplies any more Product to the Customer. Badass may impose a credit limit at its discretion and alter any credit limit at any time without notice. Where the credit limit is exceeded, Badass may refuse to supply Product to the Customer.  

4.           DELIVERY

Badass will use all reasonable efforts to deliver the Products to the Customer by any agreed delivery date. However, any delivery date and time is an estimate only and Badass is not liable for any delay in delivery. Badass may impose minimum delivery requirements from time to time. Delivery may be made in instalments.

5.           RISK AND SECURITY INTEREST

(a)         Risk of any loss, damage or deterioration of or to the Products passes to the Customer on delivery (or from the time the Customer fails to accept the Products or requests delayed delivery). Ownership in a Product does not pass to the Customer until the price payable for the Product and any other amounts payable in relation to the Product have been paid in full.

(b)         If Badass has agreed to provide the Customer with credit, in order to secure payment for the Product and for any other amounts owing by the Customer to Badass from time to time, the Customer grants a security interest (as defined in the Personal Property Securities Act 1999 (PPSA)) in all present and after acquired Products and proceeds thereof.

(c)         Until payment for the Products and all other amounts owing by the Customer is received in full by Badass:

i)     the Customer must ensure that the Product is fully insured; and

ii)    the Product must be clearly identified  as belonging to Badass.

(d)         In relation to Badass’ security interest the Customer:

i)     agrees to do anything that Badass reasonably requires to ensure that Badass has a perfected purchase money security interest in all of the Products;

ii)    agrees to reimburse Badass for all costs and/or expenses incurred or payable by it in relation to registering, maintaining or releasing any financing statement;

iii)   waives the right to receive a copy of the verification statement confirming registration of a financing statement or financing change statement;

iv)   agrees that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms, or the security created under these Terms, and waives the Customer’s rights under sections 116, 120(2), 121, 125, 129 and 131 of the PPSA;

v)    agrees that where Badass has rights in addition to those under Part 9 of the  PPSA, those rights shall continue to apply.

(e)         The Customer may sell any Products in the ordinary course of its business provided there is no Event of Default. 

6.           WARRANTIES

(a)    The Customer represents and warrants:

i)     that, for the duration of these Terms, it must not on-sell any Product supplied to it unless and until it has obtained a valid Liquor Licence under the Sale and Supply of Alcohol Act 2012; and

ii)    the Products are acquired by the Customer for business purposes and therefore the Customer agrees that the Consumer Guarantees Act 1993 (CGA) does not apply.

(b)    All warranties, terms, guarantees and conditions that are not expressly set out in these Terms are excluded to the maximum extent permitted by law and Badass disclaims any implied warranty of merchantability or fitness for a particular purpose or tolerance to any conditions. Nothing in these Terms is intended to have the effect of contracting out of the provisions of the CGA except to the extent permitted by the CGA, and these terms are to be modified to the extent necessary to give effect to that intention. The United Nations Convention on Contracts for the International Sale of Goods does not apply.

7.           SHORTAGES AND DEFECTS

In the event Products are damaged, defective, partially lost during transit or there is a shortage the Customer must, within 7 days of delivery of the relevant Products, provide Badass written notice giving reasonable particulars of any such alleged damage or partial loss or shortage. Badass must be given a reasonable opportunity to investigate the claim. The Customer acknowledges and agrees that no claim whatsoever shall be accepted by Badass (or any of its agents) where written notice is not provided to Badass within this period. Defective Products shall at Badass’ discretion be replaced or the price refunded. 

8.           DEFAULT

(a)         The Customer must advise Badass:

i)       within 7 days, of the Customer ceasing trading, or assigning or disposing of any of the assets of its business other than in the ordinary course of trading, or proposing to have a change in its control or management.

ii)      Immediately, following any Event of Default or any action by third parties (including any of its creditors) affecting Badass’ security interest in the Products.

(b)         If any of the following events occur (Events of Default), Badass may suspend or terminate the contract created by these Terms:

i)       Customer fails to comply with these Terms, including not paying for the Products by the due date;

ii)      any of the Products are “at risk” (within the meaning given in the PPSA);

iii)     Customer commits an act of bankruptcy;

iv)     Customer enters into any composition or arrangement with its creditors;

v)      a resolution is passed or an application is made for the liquidation of the Customer;

vi)     receiver or statutory manager or similar is appointed over any of the Customer’s assets.

and all amounts owing by the Customer shall immediately become due and payable notwithstanding that the due date has not arisen.

(c)         The Customer is liable for all legal, collection and other costs incurred by Badass in connection with the collection of any outstanding amount.

(d)         Following an Event of Default Badass may enter on any land or premises where the Products may be held and take possession of the Products, sell the Products in such manner and on such terms as Badass considers fit and/or appoint any person to be a receiver of the Products.

9.           LIABILITY

Badass accepts no liability for any claim for loss of profits, consequential or indirect loss of any kind suffered by the Customer or any other person. In any event, Badass’ total liability in connection with these Terms (whether in contract, tort (including negligence) or at law) shall not exceed the price paid for the Products.

10.        USE OF INFORMATION

The Customer agrees that Badass (and its agents) may obtain and use information about it from other persons including credit or debt collection agencies, for credit assessment, debt collection and marketing activities, and it consents to any person providing Badass or its agents with such information. Badass may disclose credit worthiness information about the Customer to any other person, including any credit or debt collection agency.  All other information collected by Badass may be used for in the course of its business including for marketing activities.

11.        INTELLECTUAL PROPERTY RIGHTS 

All intellectual property rights relating to the Products, their packaging and branding (Intellectual Property) belong to Badass or to its licensors. To the extent necessary for Customer to promote and sell the Products, Badass licenses the Customer the right to use the Intellectual Property on a non-exclusive, revokable, non-transferable basis.

12.        GENERAL TERMS

(a)         These Terms represent the entire agreement between the parties regarding the subject matter. 

(b)         Neither party will be liable to the other party for any failure to perform its obligations under these Terms during the time and to the extent that such performance is prevented by reason of an event beyond the reasonable control of that party (including any act of God, fire, flood, storm, natural disaster, terrorism, riot, pandemic but excluding any lack of funds).  

(c)         The Customer may not assign any of its rights and/or obligations under these Terms to any other person without first obtaining prior written consent from Badass (which may be withheld at its sole discretion).

(d)         If either party delays or fails to enforce any of its rights or remedies under these Terms, this will not constitute a waiver by that party of that or any other right or remedy available to it. 

(e)         If these Terms or any provision of these Terms is held to be illegal, invalid, unenforceable or of no effect, then, to the extent permitted by law, the provision or provisions giving rise to such illegality, invalidity, unenforceability or lack of effect will be severed and the remaining provisions will remain in full force and effect. 

(f)         The laws of New Zealand govern these Terms. The parties agree to submit to the exclusive jurisdiction of the courts of New Zealand.