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Retail Terms of Trade

BACKGROUND

A. The parties propose to enter into an agreement relating to the retailing of the Supplier’s range of freeze dried food and drink products.

B. Upon entering into the proposed agreement, the parties will act in good faith toward one another and conduct themselves in a manner consistent with the Supplier’s brand guidelines and culture.

FIRST SCHEDULE: REFERENCE SCHEDULE

1. RADIX NUTRITION

Supplier: Radix Nutrition Limited, a company registered in New Zealand with company number 4463662 whose registered office is at KPMG Hamilton PO Box 929 Hamilton 3240

2. COMMENCEMENT DATE

As completed on Credit Account Application.

3. TERM

Ongoing unless stated otherwise.

4. PRODUCTS

Received in conjunction with Credit Account Application.

5. PRICE

Received in conjunction with Credit Account Application.

6. DELIVERY RATE

free shipping on orders over $200(retail). Flat $15 for orders under $200.

Bulk order shipping will be quoted on a case-by-case basis

 

7. PAYMENT  

Payment of the amount owing for any order placed by the Retailer is due on the 20th working day following the date of Radix’s relevant invoice.

8. BASIS OF APPOINTMENT  

Non-Exclusive  

9. TERRITORY  

New Zealand  

10. RADIX INTELLECTUAL PROPERTY  

All intellectual property rights relating to the Products including trademarks, current and future registered and unregistered rights in respect of copyright, designs, trade secrets, know-how, confidential information, patents, inventions and discoveries, all websites and social media accounts and all other intellectual property of whatever kind and which relates to the Products and/or the business of Radix.

SECOND SCHEDULE: TERMS AND CONDITIONS

1. TERMS

  1. These Terms are legally binding and the Parties intend to create legal relations. 
  2. These Terms supersede any previous contracts, and/or terms of trade or supply, however agreed upon, between the Parties. 
  3.  Where there are any ambiguities or discrepancies between any provisions in the various sections of this Agreement, the provisions will be construed in the following descending order of priority: 
    1. Contract Agreement;
    2. First Schedule: Reference Schedule; and
    3. Second Schedule: Terms and Conditions.
  4. Radix reserves the right to update these Terms from time to time. Any amendments, updates or changes to these Terms will take effect from the date Radix gives notice to the Retailer.

2. BASIS OF APPOINTMENT

  1. Radix appoints the Retailer as a retailer in the Territory. The Retailer acknowledges that Radix may appoint other retailers of the Products within the Territory and/or sell the Products directly to the customer itself within the Territory (whether through Radix’s online platform or otherwise). 
  2. The Retailer acknowledges that Radix reserves the right to advertise the Retailer as a retailer of the Products on the Radix website and its social media channels.   
  3. The Retailer has no rights or claims of any type to the Products, except such rights as are created by this Agreement. The Retailer is not authorized to promote, resell, deliver, install, service or otherwise support the Products outside of the Territory. 
  4. The Retailer must not assign, transfer, sublicense or subcontract to any third party its rights and obligations under this Agreement.

3. TERMS

  1. The Agreement will commence from the Commencement Date for the Term (as specified in the First Schedule).   
  2. If no Term has been specified in the First Schedule, either Party may terminate the Agreement by giving thirty (30) days written notice to the other.  

4. PRICE

  1. The price payable to Radix for the Products during the Term is the Price set out in Schedule One, and excludes GST and any other applicable taxes or duties, as well as any shipping or handling expenses (which may vary). 
  2. The Price may be reviewed throughout the Term by Radix. Any change in the Price will take effect from the date specified in writing by Radix.  

5. PAYMENT

  1. Radix will promptly issue its invoice for any order submitted by the Retailer. Payments are due to Radix pursuant to Item 7 of the First Schedule (unless the relevant invoice specifies otherwise).
  2. Interest on amounts owing to Radix will accrue at 2% (two per cent) per month from the due date that the amount is due, calculated on a daily basis.
  3. Without prejudice to any other rights or remedies of Radix under these Terms, if an account is overdue for payment, Radix may stop supplying the Products and place the overdue account on stop credit or hold until full payment of the overdue account is received.

6. TITLE

  1. All Products supplied by Radix will remain the sole and absolute property of Radix pending cleared payment in full of all money due under this Agreement or in respect of any other money owed by the Retailer to Radix.

7. DELIVERY

  1. The Products will be deemed to be delivered when Radix or its nominated carrier delivers the Products to the Retailer’s nominated address. The Retailer acknowledges that Radix will not deliver the Products to a PO Box address.
  2. The cost of delivery is the Delivery Rate specified in the First Schedule. The Delivery Rate is additional to the Price and is the Retailer’s responsibility.
  3. The risk in the Products will be transferred to the Retailer upon delivery. Radix will not be liable in any case for damage to the Products occurring after delivery.
  4. Radix will aim to dispatch orders made during the week within twenty four (24) hours except on public holidays and weekends. Orders placed after 2pm will be processed the next working day. Orders placed after 2pm on a Friday will be dispatched on the following Monday if it is not a public holiday.
  5. Any dates given by Radix for shipment or delivery are stated in good faith, but are an estimate only and are not to be treated as a condition of the sale.

8. RETURNS

  1. The Retailer shall notify Radix within 48 hours of delivery (the “Notice Period”) of any apparent defect, shortage in quantity, damage or failure to comply with the description or quote. Upon receipt of the Retailer’s notice, Radix will advice in writing as to whether it requires the Products to be returned for inspection.   
  2. If Radix has not been notified otherwise during the Notice Period, the Products will be deemed to be accepted by the Retailer and free of damage or defect.   
  3. If, upon assessment, Radix deems the Products to be defective, it may (at its sole discretion) either: 
    1. Replace the Products; or 
    2. Issue a refund to the Retailer for the value of the Products. 
  4. The Retailer will be responsible for the costs associated with returning any damaged or defective Products.  

9. RETAILER OBLIGATION

  1. The Retailer is required to: 
    1. Comply at all times with its obligations under these Terms; 
    2. Use its best endeavours to sell, and at all times actively to promote and extend the sale of the Products in the Territory; 
    3. Comply with Radix’s brand guidelines and any other policies and procedures with regard to the purchase, sale and support of the Products; and 
    4. Conduct its business in a manner that reflects favourably at all times on the Products and the good name, goodwill and reputation of Radix.

10. POINT OF SALE MATERIAL & EQUIPMENT  

  1. For the purposes of this clause 12:
    1. “POS”means point of sale;
    2. “POS material” includes, without limitation, promotional material such as posters, brochures, advertising labels or decals;
    3. “POS equipment” includes, without limitation, product stands and/or displays with/out fixings.
  2. Any POS material or POS equipment provided by Radix remains the property of Radix at all times unless otherwise agreed by the parties.
  3. The POS material and POS equipment is provided to the Retailer for the sole purpose of being used for the promotion or display of Radix products.
    The Retailer is liable for the costs arising from any misuse or loss of the POS material and POS equipment (including repair or replacement costs).

11. INTELLECTUAL PROPERTY

  1. The Retailer acknowledges that the Radix Intellectual Property (identified in Item10 of the First Schedule) is the property of Radix. The Retailer does not acquire any right, title or interest to the Radix Intellectual Property.   
  2. The Retailer may, with the written consent of Radix, only use an aspect of the Radix Intellectual Property strictly for the purpose of promoting the ability to purchase the Product from the Retailer and in accordance with these Terms.  

12. TERMINATION

  1. On the expiry of the Term or upon:
    1. The Retailer acting in a manner which, in the sole opinion of Radix, damages Radix’s brand and reputation or brings them into disrepute;
    2. The Retailer making a change in its business direction that is deemed by Radix to be unfavourable to Radix’s interests; or
    3. Any material breach of these Terms, Radix may terminate the Agreement with immediate effect by written notice to the Retailer.
  2. Termination will not affect any of Radix’s accrued rights under this Agreement. Radix will not be liable for any loss or damage whatsoever arising from such termination.

13. REPRESENTATIONS AND WARRANTIES

  1. The Retailer acknowledges that it does not rely on, and waives any claim for breach of, any representations concerning the Products that are not set out in a quotation or order confirmation.   
  2. The Retailer agrees that it will not (and will ensure that its agents and representatives do not) make any representations, warranties or statements to its/their customers which are not authorised in writing by Radix or which are not consistent with information provided by Radix to the Retailer in relation to the Products. The Retailer indemnifies Radix from and against any claims or actions by third parties in relation to a breach of this clause. 
  3. To the fullest extent permitted by law, Radix excludes all warranties, guarantees, conditions and liabilities expressed or implied, statutory or otherwise applying in New Zealand. The Retailer acknowledges that the Consumer Guarantees Act 1993 does not apply to the supply of the Products to the Retailer. 

14. LIMITATION OF LIABILITY

  1. Radix’s total liability to the Retailer and any third party is limited to the price of the Products under the relevant contract. Radix will not be liable in any event for any loss of profits or any consequential, indirect or special damage, loss or injury of any kind suffered by the Retailer or any other person. 
  2. The Retailer indemnifies Radix against all claims, losses, costs, expenses, liabilities or damages suffered or incurred by Radix arising out of connection with these Terms.  

15. FORCE MAJEURE

  1. Despite any agreement as to the date of shipment or delivery, it is agreed that shipment or delivery may be suspended in whole or in part from time to time in case of fire, accident, earthquake, flood, drought, crime, war, blockade, civil commotion, epidemic, strike, lockout or labour dispute, shortage of fuel, power or raw material, inability to procure stock, inability to obtain transport, defaults of manufacturers or suppliers, act of God, rejection of the Products by regulatory authorities in country of destination, or any other cause beyond the reasonable control of Radix.
  2. The Retailer will have no claims whatsoever against Radix in consequence of any such cancellation or suspension and may not purport to cancel shipments or delivery.

16. DISPUTE RESOLUTION

  1. The Parties will endeavour to resolve any disputes by negotiation.
  2. If negotiation is not successful, the parties will proceed to mediation in accordance with the mediation protocols of the Arbitrators’ and Mediators’ Institute of New Zealand Incorporated, with a mediator appointed by the Institute unless the parties agree otherwise.
  3. If the dispute is not resolved by mediation, then the dispute will be referred to and finally resolved by arbitration in accordance with the Arbitration Act 1996. The arbitration will be by one arbitrator to be agreed on by the Parties and if they fail to agree within 10 working days, then by an arbitrator to be appointed by the president of the New Zealand Law Society. The Parties agree that the award of the arbitrator will be final and binding.
  4. This clause will not apply to any application for urgent injunctive relief.

17. APPLICABLE LAW AND JURISDICTION

  1. These Terms will be governed and construed in accordance with the laws of New Zealand. Subject to the dispute resolution provisions of clause 18, the parties submit to the exclusive jurisdiction of the New Zealand courts.
  2. The Retailer will comply at all times and at the sole cost of the Retailer with all applicable laws, including local laws and regulatory requirements of the Territory in the exercise of its rights and obligations under these Terms.