Standard Terms & Condition of Trade


1. Definitions
1.1. “NZCC Ltd” shall mean NZ CHERRY COMPANY LIMITED
1.2. “Customer” shall mean the client, any person acting on behalf of and with the authority of the customer, or any person purchasing cherries from NZ CHERRY COMPANY LIMITED.
1.3. “Produce” shall mean all goods and produce provided by NZCC Ltd to the customer including without limitation the local wholesale supply of all foodstuffs, and all charges for freight, labour and work, hire charges, insurance charges, or any fee or charge associated with the supply of produce by NZ CHERRY COMPANY LIMITED to the customer.

2. Acceptance
2.1. Any instruction received by NZCC Ltd from the customer for the supply of cherries shall constitute a binding contact and acceptance of the terms and conditions contained herein.

3. Collection and use of information
The customer authorises NZCC Ltd to collect, retain and use any information about the customer, or for the purpose of assessing the customer’s credit worthiness, enforcing any rights under this contract, or marketing any produce provided by NZCC Ltd to any other party.

4. Deposit
To be priority customer, NZCC Ltd asks for refundable nominal deposit, this will ensure that you take top priority as ongoing regular customer in NZCC Ltd’s database. NZCC Ltd guarantees all deposits via New Zealand Government issued export license.

5. Payment
5.1. Payment of the price for the cherries is due in US Dollars.
5.2. NZCC Ltd is entitled to ship the goods cash-in-advance (CIA)
5.3. No payment shall be deemed to have been received until NZCC Ltd has received cleared funds into the appropriate nominated account.
5.4. Unless otherwise agreed, payment will take place in cash in advance, shall be made at least 7 days of any shipment leaving NZ
5.5. Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full and cleared by bank
6. Price
Initial typical estimated price is for indicative only.
The price will be at the market price or as agreed between the parties or prior agreement with NZCC Ltd.
7. Quotation
7.1. The quotation shall be valid unless otherwise agreed for 5 days from the date of issue
7.2. The quotation will be updated on a weekly basis
7.3. Where produce is required in addition to the quote or the quote is required to be varied the customer agrees to pay for the additional cost of such produce including the variations.
7.4. The quotation is subjected to fruit mix from the sample production of the day pack out.
8. Box Sizes
NZCC Ltd has set boxes available 1kg, 2Kg and 5kg boxes. 
There are six 2Kg boxes or twelve 1Kg boxes or other combinations in a single 12Kg outer box.
Note that minimum order is LD3 air container

9. Risk
9.1. The risks of loss or damage to the produce will pass to the customer immediately upon the transfer of title or actual delivery of the goods. The produce remains at NZCC Ltd’s until delivery, but when title passes to the customer pursuant to clause 12.1 of this contract the produce is at the customer’s risk.
9.2. Delivery of produce shall be deemed complete when airline agent or airline on behalf of NZCC Ltd gives possession of the produce to the customer, or possession of produce is given to a logistic agent courier or other Bailee for the purpose of transmission to the customer.
9.3. The risk of loss or damage to the Produce shall pass to the customer immediately upon delivery by airline agent on behalf of NZCC Ltd at the airport and signature of a delivery note for the Produce by local logistic or customs agent on behalf of the customer. NZCC Ltd shall not be responsible for any loss or damage to the produce after receiving signature of the delivery note.

10. Responsibility of the shipper under CIF
The produce when handled over by the airline or airline agent directly to the Customer’s logistics firm then become the sole responsibility of the customer, for all local condition of cool storage, transport and NZCC Ltd’s guarantee only up until that point. Any uncovering of the fruit shall be avoided, never outside and all stocks shall be removed from tarmac terminals and must be in chilled cool room at all time.
11. Returns
Due to the nature of the produce, NZCC Ltd will not be able to accept returned produce. Cherries are not considered "stock" NZCC Ltd pick and pack to order fresh each day, perishable produce cannot be "re-stocked".

12. Title
12.1. It is agreed that upon acceptance of cherries by Logistics Company when handed over by the airlines, title to such cherries shall immediately pass to customer.
12.2. The customer gives irrevocable authority to NZCC Ltd to enter any premises occupied by the customer, at any reasonable time, to remove any produce not paid for in full by the customer. NZCC Ltd shall not be liable for costs, damages or expenses or any other losses incurred by the customer or any third party as a result of action, nor liable in contract or in tort or otherwise in any way whatsoever.
12.3. If the customer refuses to accept the goods, or does not supply the information or instructions required for delivery, NZCC Ltd will be entitled to store the goods at the expense and risk of the customer.
12.4. Should the customer not collect the purchased produce, NZCC Ltd will be entitled to sell these products to another party. If this is not possible, NZCC Ltd will be entitled to destroy the goods. The cost incurred because of re-sale or destruction will be charged to the customer

13. Delivery
The customer should be advised when their order is executed for dispatch by the logistics firm awaiting airline for transport and subject to space accordingly. Any delivery period stated by NZCC Ltd serves as an indication. A stated delivery period shall not be an absolute deadline. NZCC Ltd will not be in default by merely exceeding the delivery period. In the event of delays caused by any reason whatsoever, the delivery period will be extended in accordance with the delay period. Failure to meet the delivery period does not give the customer the right to claim compensation, suspend its obligations or terminate the agreement.
14. Liability
14.1. It is the responsibility of the importer to ensure they have their own import licence (import permit) and advise the exporter NZCC ltd of any special requirements and additional declarations required in their ICPR applicable for this importation of cherries.
14.2. NZCC ltd will maintain the minimum spray residuals in its fruits subject to the NZ MRLs guidelines protocols, and border testing required outside NZ shall be at the cost of the importer if any.
14.3. If it is established that the NZCC Ltd is liable for any quality issues with the fruit, this liability is limited to a portion only of any disputed claim.
14.4. NZCC Ltd shall not be liable for any indirect damage, including consequential loss of profits, saving lost, and damage resulting from business interruption.
14.5. NZCC Ltd shall not be liable for any damage resulting from substances prohibited by law, bacteria or insects found on or in the delivered goods or any statutory requirements set by the government in relation to produce.
14.6. NZCC Ltd shall not be liable for any loss or damage of any kind whatsoever including consequential loss whether suffered or incurred by the customer or another person and whether in contract, or tort or otherwise and whether such loss or damage arises directly or indirectly from produce provided by NZCC Ltd to the customer, and
14.7. The customer shall indemnify NZCC Ltd against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of NZCC Ltd or otherwise, brought by any person in connection with any matter, act, omission, or error by NZCC Ltd its agents or employees in connection with the produce.

15. Cancellation policy
Once a purchasing order has been placed it cannot be cancelled within 7 days of delivery.

16. Disputes
16.1. Claims for produce must be notified to NZCC Ltd within 12 hours of delivery with both written notification and temperature data being retrieved from the consignor’s USB temperature monitor from inside the container. Where a written notification is lodged for a claim. The data recorder applicable to the actual goods consignment must be produced to NZCC Ltd for verification accordingly to validate the basis of any claim. The written notification will describe in as much detail as possible to enable the NZCC Ltd to react in an adequate manner no later than 12 hours after delivery. The temperature report must cover data from the time NZCC Ltd’s airline or airline agent selects the load for shipment until customer’s final point in market. The reason for this is that NZCC Ltd triple check for quality assurance and quality is very important to NZCC Ltd, should there be any legitimate issue we would like to know so we can improve our systems, service and produce.
16.2. NZCC Ltd will meet obligations under the Consumer Guarantees Act to provide a claim on a case by case basis. NZCC Ltd deals with any disputes straight up in direct manner. NZCC Ltd requires written notification, temperature data, photo evidence and live video inspections of a defective box of Cherries within 12 hours. If it’s a serious claim. NZCC Ltd putting an independent third party surveyor (SGS) in to survey the produce. All disputes shall be resolved via mutual discussion in most cases first then if necessary by mediation thereafter by arbitration governed by New Zealand law.
16.3. Disputes concerning a specific shipment do not affect previous or future shipments.

17. Arbitration of Disputes.
Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled finally by binding judicial arbitration in New Zealand
18. Personal Guarantee of Company Directors or Trustees
If the customer is a company or trust, the directors or trustees signing this contract, in consideration of NZCC Ltd agreeing to supply produce and grant credit to the customer, also sign this contract in their personal capacity and jointly and severally personally guarantee and undertake to NZCC Ltd the payment of any and all other monies now or hereafter owed by the customer to NZCC Ltd. Any personal guarantee made by any party shall not exclude the customer in any way whatsoever from the liabilities and obligations contained in this contract, the guarantors and customer shall be jointly and severally liable under the terms and conditions of this contract
19. Force majeure
19.1. Besides the events considered to be force majeure events according to the law or case law, force majeure will include in these general terms and conditions all external causes, foreseen or unforeseen, in respect of which NZCC Ltd cannot exert any control, such as traffic jam, power/computer failures, import and export impediments, quotas, plant diseases, natural disaster, illness of employees and delivery interruptions on the part of NZCC Ltd.’s suppliers, but as a result of which NZCC Ltd is unable to perform its obligations, including strikes at NZCC ltd.’s business.
19.2. Unless otherwise agreed, all agreements with NZCC Ltd concerning agricultural produce are subject to change due to crop failure. If as a result of a disappointing harvest in terms of the quantity and/or quality of the produce concerned there are fewer produce available than could have been expected within reason on concluding the agreement, also as a result of produce having been declared unfit by the authorized bodies, NZCC Ltd will have the right to reduce the quantity it sells correspondingly. If in this case quantities delivered are reduced NZCC Ltd fully complies with its delivery obligations than could have been expected within reason on concluding the Agreement, also as a result of produce having been declared unfit by the authorized bodies. NZCC Ltd will have the right to reduce the quantity it sells correspondingly. In such event, NZCC Ltd will not be obliged to supply substitute produce, neither will it be liable for any loss suffered whatsoever.

20. Miscellaneous
20.1. The customer shall not assign all or any of its right or obligations under this contact without the written consent of NZCC Ltd.
20.2. Failure by NZCC Ltd to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations NZCC Ltd has under this contract.
20.3. If any provision of this contract shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not affected , prejudiced or impaired
20.4. The Customer is responsible for all import license and customs clearance with their own logistic firm within country of destinations of the goods assignment. The Customer pay for all local storage on handling over by the transport airlines under CIF where after the Customer is obligated to cover all storage and the other costs at his own risk.
20.5. All correspondence shall be by e-mail or fax as required by NZ Cherry Company Ltd export personnel.
20.6. No cherries shall be left uncovered outside at any stage where rain or sun can cause the breakdown of the fruit. All storage must be in chilled cool room at all time except when loading to aircraft and refrigerator transport.
20.7. The Importers responsibility shall be to offer any required assistance in the re-export of any goods for any reason, to facilitate any procedure as may be requested by NZCC ltd.
20.8 In case of dispute, NZCC Ltd reserves the right of final decision on the interpretation of these terms and conditions.

21. Density and tare weight
Should the density variation to size of fruit to the standard box volume be less than 5% of tare weight. Then a pro rata price shall only be payable by the customer as designated by the packers certification of the fruit.

22. Weight and moisture variation due to transportation
Because pricing is calculated on a "per kg" basis, accurate weight measurements are critical to a fair and accurate total purchase price calculation. Transportation of cherries, moisture, exposure to heat and further ripening after harvest may result in desiccation of the cherries and change in weight of the crop. It shall be understood that NZCC Ltd shall not be liable for weight loss of cherries due to handling in transit.

23. Import License
23.1. The customer guarantees that, if an import certificate or permit is required for importing the produce in the country of destination, such an import certificate has been obtained or will be obtained prior to dispatch. The Customer shall be responsible for obtaining, at its own cost, such import licences and other consents in relation to the produce as are required from time to time, and shall make those licences and consents available to the NZCC Ltd prior to shipment of the produce.
23.2. The Company will have no liability in the event that an import certificate or permit not approved or is later withdrawn.
23.3. The customer shall provide NZCC Ltd with all documents and information necessary for compliance with customs formalities and other legal formalities prior to delivery of the goods.

24. Quality
24.1. NZCC Ltd achieved full NZ G.A.P. accreditation and will upgrade to GLOBALG.A.P. accreditation before the 2018/2019 season (subject to approval)
24.2. NZCC Ltd employs independent quality controllers at the freight forwarders (GVI logistics Ltd) in both Auckland and Christchurch to ensure that the produce departing is prechecked for quality assurance prior to dispatch.
24.3. NZCC Ltd employs the third party to inspect packed cherry exports for all 4 ton shipments before they leave the airport for all required quality testing.
24.4. NZCC Ltd and the Customer acknowledge that the quality of the export fruit in the destination markets is essential for a continued successful marketing. NZCC Ltd also commit to participate with the Customer in reasonable quality control activities such as the establishment and maintenance of process-controls and the correct gathering of fruit quality data, as well as the communication and delivery of such information to the Customer.
24.5. NZCC Ltd commit to grant access to the orchard at any time during normal times of operation to quality control technicians designated by the Customer, so that they can evaluate in the field and at the cherry pack house that potentially constitute fruit that can be sold in accordance with this agreement.
24.6. Every shipment is tracked using a single use USB type cold chain temperature monitor. The temperature monitor should travel with the shipment from the time NZCC Ltd’s airline or airline agent selects the load for shipment until it is arrived by the customer’s final point in market.
24.7. With sophisticated and established business processes NZCC Ltd can ensure delivery of premium export quality Cherries in accordance with NZ law as inspected in the New Zealand for the export of cherries a denoted export or Pacific class.
 
25. Suspension
NZCC Ltd is authorised to suspend the performance of its obligations or to terminate the agreement. If:
The customer does not fulfil its obligations under the agreement, or does not do so properly or in due time.
26. Applicable law and disputes
This Agreement shall be governed by, construed and enforced in accordance with,
and be subject to the laws of New Zealand.



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