Twelfth Hour Dry Gin

TWELFTH HOUR DISTILLERY LIMITED TERMS AND CONDITIONS OF SALE
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions: Unless the context otherwise requires:
“after-acquired property” “financing change statement” “financing statement” “personal property” “proceeds” “purchase money security interest” “register” “security agreement” “security interest” and “verification statement” have the meaning ascribed to those terms in the PPSA.
“Approved Creditor” means a person or entity who completes an Account Application and is approved as a creditor by the Supplier.
“Buyer” means the person, company or other entity named as such in the Credit Account Application or, if no Credit Account Application has been signed, the buyer of the Products.
“Consumer Guarantees Act” means the Consumer Guarantees Act 1993.
“Credit Account Application” means a trading account application (in such form as required by the Supplier) provided by the Buyer.
“GST” means Goods and Services Tax chargeable under the Goods and Services Tax Act 1985 (as amended or replaced from time to time).
“PPSA” means the Personal Property Securities Act 1999 (as amended from time to time).
“Privacy Act” means the Privacy Act 1993 until its provisions are repealed and the Privacy Act 2020.
“Products” means gin or other products supplied by the Supplier to the Buyer from time to time.
“Supplier” means Twelfth Hour Distillery Limited.
“Trade” means any trade, business, industry, profession, occupation, activity of commerce, or undertaking relating to the supply or acquisition of goods or services.
“Trade Marks” means each of the Supplier’s trade marks and logos including (but not limited to) “Twelfth Hour Distillery”. “Website” means the Supplier’s website.
1.2 Interpretation: Also for the interpretation or construction of these terms and conditions, unless the context otherwise requires:
(a) References to Supplier shall include Supplier’s successors and assigns;
(b) References to Buyer shall include Buyer’s successors, administrators, executors and permitted assigns;
(c) Words importing singular or plural number include the plural and singular number respectively;
(d) Words importing one gender include the other genders.
2. APPLICATION OF THESE TERMS AND CONDITIONS
2.1 These terms and conditions apply to all sales of Products from the Supplier to the Buyer.
3. PRICING, ORDERS AND PAYMENT
3.1 Prices: Prices of Products shall be as stated in the Supplier’s latest price lists, as may be displayed on the Website or otherwise advised by the Supplier to the Buyer from time to time. Unless otherwise stated by the Supplier:
(a) All price changes are effective immediately without any requirement for prior notice;
(b) All prices are exclusive of GST;
(c) All prices are exclusive of all delivery, handling and packaging charges; and
(d) The Buyer shall pay to the Supplier all GST chargeable on the supply of Products.

TWELFTH HOUR DISTILLERY LIMITED TERMS AND CONDITIONS OF SALE
3.2 Orders: All orders must be in writing in such form as the Supplier may from time to time specify and shall not be binding on the Supplier until confirmed in writing. The Supplier may decline any order without cause or liability. Variations and/or cancellation of orders may only be made with the Supplier’s written consent.
3.3 Payment Terms: Subject to clause 3.4, payment for Products and any other charges by the Supplier is required as follows:
(a) If the purchase of Products is made through the Website, payment is required immediately at the time the transaction is
completed on the Website using the payment methods prescribed on the Website;
(b) If the purchase of Products is made other than through the Website to a non-Approved Creditor, payment is required by the Buyer immediately in cleared funds and prior to uplifting or delivery of the Products;
(c) If the purchase of Products is made by an Approved Creditor other than through the Website, payment is required by the Buyer in cleared funds by the 20th of the month following the month in which the invoice is issued to the Buyer.
3.4 Variation of Payment Terms: Notwithstanding the provisions of clause 3.3, the Buyer acknowledges that the payment terms set out in clause 3.3 are at the sole discretion of the Supplier and may at any time be revoked or varied by the Supplier, whether generally or in relation to any particular order or supply.
3.5 Interest on Default: Without prejudice to any other right or remedy of the Supplier, in the event of payment not being received on due date, the Supplier may charge interest to the Buyer on any amount outstanding calculated on a daily basis from due date for payment to the actual date of payment. Until notified in writing by the Supplier of a change in the rate of interest, the rate of interest shall be 1% per month.
3.6 Allocation of Moneys Received: Where at any point in time moneys are outstanding with respect to more than one Product supplied, when moneys are received from the Buyer the Supplier may allocate such moneys against the various amounts outstanding as it sees fit.
4. DELIVERY AND RISK
4.1 Point of Delivery: If the Supplier is responsible for delivery of Products to the Buyer, delivery shall be deemed to occur when the Products are delivered to the delivery address nominated by the Buyer. If the Buyer is responsible for uplifting the Products or otherwise arranging shipment, then delivery shall be deemed to occur upon the Products being uplifted from the Supplier’s premises or warehouse.
4.2 Delivery times: Delivery times shall be as advised by the Supplier in respect of each order provided however the Supplier shall not be liable for any loss resulting from delay or failure to deliver the Products.
4.3 Risk: Risk in the Products shall pass from the Supplier to the Buyer upon delivery in terms of clause 4.1. For the purposes of these terms and conditions the term “risk” shall include risk connected with loss, damage, deterioration or any other peril whatsoever affecting the Products.
5. WARRANTIES AND CLAIMS 5.1 Consumer Guarantees Act:
(a) Where the Buyer is acquiring the Products in Trade, the Supplier and Buyer agree that the provisions of the Consumer Guarantees Act shall not apply and the implied guarantees and other provisions under that Act are excluded.
(b) Except as provided in clause 5.1(a), nothing in these terms and conditions and this clause 5 affects the Buyer’s rights under the Consumer Guarantees Act and the Buyer shall have the benefit of the implied guarantees under that Act.

TWELFTH HOUR DISTILLERY LIMITED TERMS AND CONDITIONS OF SALE
5.2 Warranty: Where the consumer guarantees under the Consumer Guarantees Act are not applicable to a supply of Products under these terms and conditions (i.e. where clause 5.1(a) applies), the Supplier warrants to the Buyer that all Products supplied to the Buyer by the Supplier will, upon delivery in terms of clause 4.1, be free from defects in materials and workmanship.
5.3 Limitation of Liability: Subject to clause 5.1:
(a) The Supplier’s liability to the Buyer in respect of any claim, liability, loss or damage against, of or to the Buyer that may arise
out of any breach of the Supplier’s warranty:
(i) is limited to any one of the following (at the Supplier’s discretion):
A. The replacement of the Products; or
B. A refund of the purchase price of the Products;
(ii) shall not apply to the extent that such claim, liability, loss or damage was contributed to or caused by any act, default or omission of, or any misuse of Products by, the Buyer, its employees, officers, agents, contractors or customers;
(iii) shall not apply to the extent that such claim, liability, loss or damage was contributed to or caused by any failure by the Buyer, its employees, officers, agents, contractors or customers to ensure the proper handling, storage or transportation of the Products or to follow any instructions of the Supplier regarding such;
(b) Except as expressed or referred to in this clause 5, there are no other warranties, conditions or indemnities relating to the Products given by the Supplier to the Buyer. All other conditions and warranties whether expressed or implied by law, trade, custom or otherwise are hereby expressly excluded except for those conditions and warranties implied by law which cannot be excluded or modified;
(c) The Supplier shall not be liable for any loss of profits or consequential, indirect or special loss, damage or injury of any kind suffered by the Buyer;
(d) The Supplier shall not be obliged to accept any claim which has not been made in accordance with the requirements of clause 5.4 relating to the notification of claims.
5.4 Notification of Claims:
(a) Where Products are short delivered, defective or damaged on delivery, the Buyer must notify the Supplier in writing (including any delivery note number and details of the claim) within 48 hours after delivery, unless there is an immediate danger to the health of consumers in which case the Buyer must notify the Supplier immediately by telephone and must follow any product recall or withdrawal directions given by the Supplier;
(b) In the case of any Product defect which could not reasonably have been discovered upon inspection of the Products upon delivery, any such defect must be notified in writing to the Supplier within 48 hours of discovery, unless there is an immediate danger to the health of consumers in which case the Buyer must notify the Supplier immediately by telephone and must follow any product recall or withdrawal directions given by the Supplier;
(c) Any notification of claim shall include photographs of any defective or damaged Products;
(d) Any damaged or defective Products the subject of a claim by the Buyer shall not be destroyed or removed from the delivery address until the Supplier has had an opportunity to inspect same or the Supplier has waived that requirement.
6. LEGAL COMPLIANCE
The Buyer shall comply with all national and local laws, regulations, bylaws, standards and practices with respect to the conduct of the Buyer’s business and, in particular, those applicable to the sale of the Products and shall otherwise ensure the proper handling and storage of the Products from the time of delivery by the Supplier to the sale of the Products to the consumer.

7. DEFAULT
TWELFTH HOUR DISTILLERY LIMITED TERMS AND CONDITIONS OF SALE
7.1 If the Buyer shall be in breach of or make default in, the observance or performance of any of these terms and conditions including (but not limited to) absolute payment in full for the Products on due date therefor or any other moneys payable by the Buyer under these terms and conditions or the Buyer becomes insolvent or unable to pay its debts when due or bankrupt or goes into winding up, liquidation, statutory management or receivership (or an order is made or effective resolution is passed for such) then and in any such event (without prejudice to any other right or remedy of the Supplier):
(a) All sums outstanding whether legally demanded or not and whether then due or not shall become immediately due and payable to the Supplier;
(b) The right of the Buyer or any agent of the Buyer to possession of the Products or to sell the Products or to use the Trade Marks or any advertising or promotional material for the Products shall immediately and without the necessity of any notice terminate;
(c) The Supplier or its agents may at any time enter onto any premises where the Products are (or may be supposed to be) in order to inspect, take possession of and remove such Products, by force if reasonably necessary. The Buyer shall reimburse, indemnify and hold harmless the Supplier, its employees and agents in respect of any costs, expenses, loss or damage (including such to any third parties) in respect of the exercise or attempted exercise of the Supplier’s remedies under this clause;
(d) The Supplier may at any time after taking possession of the Products pursuant to this clause 7 sell the Products and shall be entitled to apply all proceeds of sale of such towards moneys owing by the Buyer to the Supplier including costs under clause 10.6 of these terms and conditions; and
(e) The Supplier shall be entitled to terminate or suspend any further deliveries of Products to the Buyer.
7.2 The rights of the Supplier under this clause 7 are in addition to any rights of the Supplier under the PPSA.
8. INTELLECTUAL PROPERTY
8.1 All intellectual property rights embodied in or used in connection with the Products shall be and remain the absolute property of the Supplier.
8.2 All the Supplier’s Trade Marks used in connection with the Products shall be and remain the absolute property of the Supplier.
8.3 The Buyer recognises the Supplier’s title to the Trade Marks and shall not at any time do or suffer to be done any act or thing which may in any way impair the rights of the Supplier in the Trade Marks. The Buyer acknowledges that it shall not acquire any title or interest in the Trade Marks adverse to the Supplier, it being the intention of the Parties that all use of the Trade Marks by the Buyer shall at all times inure to the benefit of the Supplier.
9. SECURITY INTEREST
9.1 In consideration of the Supplier supplying the Products to the Buyer and to secure performance of the Buyer’s obligations to the
Supplier under these terms and conditions including (without limitation) payment of the purchase price of the Products, the Buyer:
(a) Acknowledges and agrees these terms and conditions are a security agreement for the purposes of the PPSA;
(b) Grants to the Supplier a security interest and a purchase money security interest in the Products and any proceeds of Products;
(c) Agrees that any Products or proceeds of Products coming into existence after the date of acceptance of these terms and conditions will come into existence subject to the purchase money security interest and security interest granted in these terms and conditions without the need for any further action by any party;
(d) Acknowledges that it has received valuable consideration from the Supplier, that such consideration is sufficient and attachment of the purchase money security interest and security interest are immediate and are not postponed or deferred in any way;

TWELFTH HOUR DISTILLERY LIMITED TERMS AND CONDITIONS OF SALE
(e) Undertakes to sign any further documents and/or provide any further information (such information to be complete and up to date in all respects) which the Supplier may reasonably require to register a financing statement or a financing change statement on the register; and
(f) Agrees the security interest and purchase money security interest in the Products and in any proceeds of Products created by this clause 9 secures all moneys outstanding by the Buyer to the Supplier from time to time including (but not limited to) the purchase price of the Products.
9.2 The Buyer:
(a) Waives its right to receive a verification statement pursuant to section 148 of the PPSA;
(b) Agrees
(i) To receive a statement of account under section 116 of the PPSA;
(ii) To receive notice of a secured party’s proposal to retain collateral under section 120(2) of the PPSA;
(iii) To object to a secured party’s proposal to retain collateral under section 121 of the PPSA;
(iv) To redeem collateral under section 132 of the PPSA;
(v) To be paid any surplus under section 117(1)(c) of the PPSA;
(vi) To recover any surplus under section 119 of the PPSA.
9.3 The Buyer and the Supplier agree:
(a) The Supplier’s rights under section 108, 109, 111(1) and 120(1) of the PPSA may be exercised regardless of whether or not the Supplier has priority over all other secured parties;
(b) To contract out of sections 114(1)(a), 133 and 134 of the PPSA.
10. MISCELLANEOUS
10.1 Waiver: The waiver by the Supplier of any term or right under these terms and conditions or of any default by the Buyer shall not be construed as a waiver by the Supplier of any other term, right or default or of any term, right or default in the future whether of the same or a different nature.
10.2 Entire Agreement: These terms and conditions constitute the entire agreement of the Parties in relation to the transactions embodied in these terms and conditions and supersedes all prior agreements and all representations or warranties previously given.
10.3 Privacy Act:
(a) Credit Reporting Agencies:
(i) The Buyer agrees that the Supplier may obtain a consumer credit report containing information about the Buyer from a credit reporting agency for the purposes of assessing the Buyer’s application for commercial credit and collecting overdue payments relating to commercial credit owed to the Supplier. This agreement will remain current whilst any moneys are outstanding to the Supplier;
(ii) The Buyer agrees that the Supplier may exchange information about the Buyer with those credit providers named in the Credit Account Application or named in a consumer credit report issued by a credit reporting agency, for the following purposes:
to contract out of its rights:
 To assess an application by the Buyer for credit;

TWELFTH HOUR DISTILLERY LIMITED TERMS AND CONDITIONS OF SALE
 To notify other credit providers of a default by the Buyer;
 To exchange information with other credit providers as to the status of this credit application where the Buyer is
in default with other credit providers;
 To assess the Buyer’s credit worthiness.
(iii) The Buyer understands that the information exchanged can include anything about the Buyer’s credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act.
(b) Privacy Policy: By completing a Credit Account Application and/or ordering Products from the Supplier, the Buyer agrees to the terms and conditions of the Supplier’s Privacy Policy which the Buyer may access through the Website at www.twelfthhourdistillery.co.nz.
10.4 Invalidity: If any of the terms and conditions of these terms and conditions shall be invalid, void or illegal the enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
10.5 Joint and Several: If there is more than one person named as the Buyer in the Credit Account Application, then the obligations of each such person under these terms and conditions shall be both joint and several.
10.6 Costs: The Supplier shall be entitled on demand to recover from the Buyer all costs incurred by the Supplier (including but not limited to legal costs between solicitor and own client) in connection with a default under these terms and conditions or the enforcement or exercise or attempted enforcement or exercise of any of the Supplier’s rights, remedies and powers under these terms and conditions, the PPSA or other legislation.
10.7 Governing Law: The Supplier and Buyer agree these terms and conditions shall be governed by and construed in accordance with the laws of New Zealand and agree to submit to the non-exclusive jurisdiction of the courts in New Zealand and any court hearing appeals from those courts.