Wholesale Agreement
Parties
This contract is entered into between the Buyer (“Buyer”) and Isle of Eden Ltd (“Isle of Eden”).
These terms and conditions come into effect and are considered accepted by the Buyer on the date that each Order is placed by the Buyer with Isle of Eden.
Definitions
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“Buyer” shall refer to any person purchasing Goods from us or any person acting on behalf of and with the authority of the Buyer.
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“Goods” shall refer to any Goods manufactured and delivered by or on behalf of Isle of Eden (as more fully described in any invoice or other sales record issued by Isle of Eden) to you or your agent.
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“Isle of Eden” shall refer to Isle of Eden Limited, or any agents or employees thereof.
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“Price” shall refer to the cost of the Goods, and includes all disbursements.
Payment
1.1 Due Date: All payments are due twenty (20) days following the end of the month in which an invoice is issued, or on the date specified on any invoice or on any other form being the date for payment (“the Due Date”). Isle of Eden will accept payment by direct bank transfer or by other means as agreed between the Parties.
1.2 Late Charges: A 2.5% monthly late charge will be levied on all account balances that remain unpaid on the Due Date. If 60 days after the Due Date the debt remains unpaid, Isle of Eden Ltd has the right to charge an administration fee at 10%, which is a recurring monthly fee thereafter.
1.3 Collection Costs: Collection costs will be added to the debt in the event that the debt is not paid by the Due Date, and all costs incurred in the recovery of the debt are payable by the debtor (person, company, partnership, trust, organisation, or any other entity that owes a debt to Isle of Eden Ltd).
1.4 Litigation Costs: Should litigation ensue, the costs of solicitors are payable by the debtor.
1.5 Currency: Payments for sales within New Zealand will be made in New Zealand dollars.
New Buyers
2.1 Account Application: New Buyers must complete an Account Application form as supplied by Isle of Eden. A 50% deposit must be received by Isle of Eden Ltd before the Goods are delivered, and the remainder of the payment will be due 14 days from invoice. Payment for all future orders will be subject to clause 1 above.
Ordering Procedure and Conditions of Sale
3.1 Order Placement: An Isle of Eden Account Application Form must be correctly filled out, signed by the Buyer, and approved by Isle of Eden. Once the Account Application Form has been approved by Isle of Eden, the Buyer can proceed with placing an order for Goods (“Order”).
3.2 Sales Confirmation: After the placement of an Order, Isle of Eden will provide the Buyer with a sales confirmation (“Sales Confirmation”). Once a Sales Confirmation has been issued, the Buyer is legally bound to complete the Order at the agreed Price, and the Goods will be shipped to the Buyer.
3.3 Display of Goods: Goods are to be displayed in the Buyer’s retail store using Isle of Eden’s branded display stands or as otherwise agreed with Isle of Eden. The display stands are loaned to the Buyer in good faith and remain the property of Isle of Eden at all times.
3.4 Loan of Eyewear Stands
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3.4.1 Use of Stands: The Buyer agrees to use the stands exclusively for displaying Isle of Eden eyewear and will not alter, modify, or remove any branding on the stands without prior written consent from Isle of Eden.
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3.4.2 Care of Stands: The Buyer shall maintain the stands in good condition, ensuring they are clean and presentable to customers. Any damage or loss beyond reasonable wear and tear is the responsibility of the Buyer.
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3.4.3 Return of Stands: If the Buyer ceases to display Isle of Eden eyewear or no longer requires the stands, the Buyer shall, at their own expense, return the stands to Isle of Eden in good condition, except for reasonable wear and tear.
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3.4.4 Liability for Stands: In the event of loss, theft, or damage to the stands while in the Buyer’s possession, the Buyer agrees to reimburse Isle of Eden for the cost of repair or replacement.
3.5 Competitor Products: Isle of Eden offers sustainably produced sunglasses at a mid-range price point. The Buyer agrees not to offer for sale in its retail or online stores any direct competitors of Isle of Eden (in Isle of Eden’s sole opinion), including but not limited to sunglass brands which have sustainability at the core of their brand identity, or sunglasses at the same price point as Isle of Eden. In the event the Buyer wishes to offer for sale a direct competitor of Isle of Eden, the Buyer must obtain Isle of Eden’s prior written consent before stocking such a competitor, such consent may be withheld in Isle of Eden’s sole discretion.
3.6 Termination Due to Competitor Products: If the Buyer offers for sale a direct competitor of Isle of Eden without Isle of Eden’s prior written consent, this contract and any outstanding Orders will be considered terminated by the Buyer, and clause 8.2 will come into effect.
Retention of Title
4.1 Title and Risk: Title to the Goods shall remain vested in Isle of Eden and shall not pass to the Buyer until the Goods have been paid for in full and payment has been received by Isle of Eden. Until title to the Goods passes:
a) Authority to Reclaim: Isle of Eden shall have authority to retake, sell, or otherwise deal with and/or dispose of all or any part of the Goods.
b) Right of Entry: For the purposes of carrying out clause 4.1(a), Isle of Eden and/or its agents and employees shall be entitled at any time and without the need to give notice, to enter upon any property upon which the Goods or any part are stored, or upon which Isle of Eden reasonably believes them to be kept.
c) Storage and Identification: The Buyer shall store or mark the Goods in a manner reasonably satisfactory to Isle of Eden indicating that title to the Goods remains vested in Isle of Eden.
d) Risk Transfer: Irrespective of whether title to the Goods remains vested in Isle of Eden, risk in the Goods shall pass to the Buyer upon delivery to the Buyer. The Buyer shall insure the Goods to their full replacement value at all times.
Shipping Terms
5.1 Delivery Method: Goods are delivered within New Zealand by courier on behalf of Isle of Eden. Freight is to be paid for by the Buyer, and the courier charge will be specified on the invoice.
5.2 Delivery Dates: Delivery dates provided are estimates only, and Isle of Eden will use all reasonable endeavours to deliver Goods by such date. Isle of Eden will not be liable for any loss caused by delay in receipt of the Goods by the Buyer.
GST
6.1 Exclusion from Price: GST is not included in the Price and will be invoiced additionally to the agreed Price.
Force Majeure
7.1 No Liability: No Party shall be liable for any failure to perform its obligations where such failure is as a result of Acts of Nature (including fire, flood, earthquake, storm, hurricane, or other natural disaster), war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalisation, government sanction, blockage, embargo, labour dispute, strike, pandemic, lockout, or interruption or failure of electricity or other utility, and no Party will have a right to terminate this agreement in such circumstances.
7.2 Obligations During Force Majeure: Any Party asserting Force Majeure as an excuse shall have the burden of proving that reasonable steps were taken (under the circumstances) to minimize delay or damages caused by foreseeable events, that all non-excused obligations were substantially fulfilled, and that the other Party was timely notified of the likelihood or actual occurrence which would justify such an assertion, so that other prudent precautions could be contemplated.
Termination
8.1 Termination by Isle of Eden: Isle of Eden may terminate this contract and any Order at any time by giving 7 days written notice to the Buyer. Isle of Eden shall not be liable for any loss or damage whatsoever arising from such termination.
8.2 Termination by Buyer: Termination or amendment to this contract or an Order by the Buyer after the Sales Confirmation has been issued will be subject to a cancellation fee payable by the Buyer to Isle of Eden representing 50% of the value of the cancelled Order.
8.3 Return of Goods Upon Termination: Upon termination by either Party, all Goods within which title still resides in Isle of Eden are to be immediately returned to Isle of Eden in unopened, undamaged, and re-saleable condition.
Return of Goods
9.1 Discretionary Returns: Return of Goods to Isle of Eden by the Buyer for any reason after the completion of an Order is at Isle of Eden’s sole discretion. If Isle of Eden agrees to the return of Goods, they must be unopened, undamaged, and in a re-saleable condition and delivered to Isle of Eden at the Buyer’s sole cost.
Non-Delivery
10.1 Circumstances Beyond Control: From time to time, Isle of Eden will not be able to supply Goods to the Buyer due to circumstances outside its control. While every attempt will be made to avoid non-delivery, if such a situation arises, non-delivery of Goods will be accepted by the Buyer, and Isle of Eden Ltd will accept no liability for resulting losses to the Buyer. The Buyer will not be invoiced for non-delivered Goods.
Insurance
11.1 Responsibility for Insurance: Isle of Eden Ltd will insure the Goods up until delivery to the Buyer’s specified location. Thereafter, the Goods are the responsibility of the Buyer. The Buyer must insure the Goods for full replacement value at all times.
Warranty
12.1 Compliance with Specifications: Subject to clause 14.1, Isle of Eden warrants that the Goods delivered meet the description of Goods as stated on the Sales Confirmation form. The Buyer must inspect the Goods and give written notice to Isle of Eden Ltd within seven (7) days after delivery that the Goods do not comply with the relevant specifications or descriptions. In the absence of such written notice, the Goods are deemed to have been accepted in good order and condition.
12.2 Faulty Goods: If any fault is evident within the Goods, Isle of Eden Ltd will replace the faulty Goods in accordance with applicable law. If the Goods are no longer in stock, a credit will be offered.
Liability
13.1 Limitation of Liability: Isle of Eden will not under any circumstances be liable to the Buyer for any direct or indirect loss or damage, whether in contract, tort, or negligence, arising from, connected with, or relating to this agreement or related to the use or sale of the Goods by the Buyer or any third party.
No Sale by Description or Sample
14.1 Right to Alter: Isle of Eden Ltd reserves the right to alter or remove its product dimensions, drawings, specifications, designs, materials, components, packaging, promotional material, construction methods, and may do so without notice. Any such alterations shall not impose upon Isle of Eden Ltd an obligation to alter goods that it already delivered to the Buyer.
14.2 No Condition of Sale: Unless otherwise expressly agreed in writing, it is not a condition of sale that the Goods correspond precisely with the dimensions and specifications appearing in any product literature or with any sample that may have been shown or demonstrated to the Buyer. All samples remain the property of Isle of Eden Ltd, unless stated otherwise.
Personal Property Securities Act 1999
15.1 Security Agreement: The Buyer acknowledges and agrees that:
a) These terms and conditions of sale constitute a security agreement for the purposes of the PPSA; and
b) A security interest is taken in all Goods previously supplied by Isle of Eden Ltd to the Buyer (if any) and all the Goods that will be supplied in the future by Isle of Eden Ltd to the Buyer during the continuance of the parties' relationship.
15.2 Buyer’s Undertakings: The Buyer undertakes to:
a) Provide Information: Sign any further documents and/or provide any further information, such information to be complete, accurate, and up-to-date in all respects, which Isle of Eden Ltd may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register.
b) No Unauthorized Changes: Not register a financing change statement or a change demand without the prior written consent of Isle of Eden Ltd.
c) Notice of Changes: Give Isle of Eden Ltd not less than fourteen (14) days prior written notice of any proposed change in the Buyer’s name and/or other change in the Buyer’s details (including but not limited to changes in the Buyer’s address, fax number, email, or business practice).
d) Material Changes: Immediately advise Isle of Eden Ltd of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
15.3 Waivers and Exclusions:
a) Isle of Eden Ltd and the Buyer agree that nothing in sections 114(1)(a), 133, and 134 of the PPSA shall apply to these Terms and Conditions of Sale.
b) The Buyer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 132 of the PPSA.
15.4 Verification Statement: Unless otherwise agreed to in writing by Isle of Eden Ltd, the Buyer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
Compliance with Law
16.1 Legal Compliance: The Buyer must comply with all applicable law relating to the usage and description of the Goods.
Intellectual Property
17.1 Ownership: The design of all Goods and the Isle of Eden brand and logo are the intellectual property of Isle of Eden Ltd. The Buyer may not use any intellectual property belonging to Isle of Eden without written permission.
Governing Law
18.1 Jurisdiction: This agreement shall be governed by the laws of New Zealand and the courts of New Zealand shall have exclusive jurisdiction over any disputes.
Severability
19.1 Invalid Provisions: If any provision contained in this agreement is held by a court to be unlawful, invalid, or unenforceable, the validity and enforceability of the remaining provisions are not affected.
Amendments
20.1 Right to Amend: This contract and the terms and conditions contained herein may be amended by Isle of Eden at any time in its sole discretion by posting the revised version to the Isle of Eden website or by sending it to the Buyer. The effective date of any amendment will be the date that it is either sent to the Buyer or posted on the Isle of Eden website.
20.2 Effective Date: This version of these Wholesale Terms and Conditions of Sale is dated 29.12.2020.