Terms & Conditions

1. AGREEMENT

1.1
This agreement is a contract between you and Shieling Laboratories Limited (“Shieling”, “we” or “us”) which together are “Parties” and each a “Party”). It will govern the provision of all goods that we produce or provide to you (“Goods”) and all services that we provide to you including all design and product development services (“Services”).

1.2
By instructing us to proceed with supplying Goods or Services to you, you have agreed that these terms will apply.

1.3
This agreement will include any terms specifically set out in any quotation provided by us that are accepted by you and the any items contained in our written confirmation of order (“Order Confirmation”).

1.4
In the case of any conflict of the terms then the prevailing terms shall rank as follows: Firstly, the Order Confirmation, secondly any terms set out in any quotation that is accepted by you, thirdly the terms set out below.

1.5 
An agreement to provide Goods and Services will only be deemed to have occurred upon us providing an Order Confirmation. Until then, we may refuse any order submitted by you.

1.6
This agreement will continue to apply to any future Goods and Services that Shieling provides to you unless we amend them by advising you of such terms or by publication on the Shieling website. We will refer to our terms on each Order Confirmation.

2. PRICE AND PAYMENT

2.1
We will issue you with an invoice for payment for our Goods and/or Services from time to time (“the Fee”). The amount of our Fee will be in line with the most recently agreed Prices for the Goods or Services, as set out in our quotation provided to and accepted by you in writing or such amount that is otherwise agreed in writing between the Parties prior to us issuing an Order Confirmation. Where there is a change in the provision of Goods or Services we have the discretion to amend the Fee to provide for this.

2.2
Where there is a material change in the costs to manufacture the Goods or provide the Services, the Parties agree that Shieling may decline to accept an order for Goods or Services at the prior agreed prices and provide a new quotation for the Goods or Services.

2.3
You will pay the Fee by the due date on the invoice unless we have agreed to alternative payment terms in writing (“Due Date”). Where no date is stipulated the Due Date is the 20th day of the month following the date of invoice.

2.4
You will pay the Fee without set-off or deduction of any kind unless we expressly agree to such set-off or deduction associated with a lodged Dispute Notice (clause 7.3).

2.5
You acknowledge that our Fee may be charged in increments.

2.6
If you do not pay the Fee by the Due Date then we may do one or more of the following:

(a) withhold all Goods (including not making Goods available for delivery);
(b) stop providing all Services to you;
(c) charge interest on any amount owing after the due date at the rate of 2.5 per cent per month or part month compounded monthly until payment is made in full;
(d) recover from you all of our external costs of collection including third party debt collectors and our solicitor’s costs on a solicitor and own client basis.

2.7
If a court, or any other competent decision maker appointed or agreed by the Parties, determines that the rate of interest in clause 2.6 (c) is a penalty ,the rate of interest in clause 2.6 (c) will be the maximum rate of interest that in the relevant circumstances is not legally a penalty.

3. RISK AND DELIVERY

3.1
We will make the Goods available to you for your collection. Upon your collection of the Goods they will be at your risk meaning that we are not liable for any damage during transit or for non-delivery.

3.2
Where you wish for the Goods to be delivered to you, then we will arrange for this on the basis that the Goods will be at your risk from the point that the carrier collects the Goods meaning that we are not liable for any damage during transit or for non-delivery.

3.3
Unless we stipulate otherwise, freight or delivery will be additional to the Fee that we may have quoted or estimated.

3.4
Where we are responsible for the cost of delivery, then should you be unavailable for the delivery of the Goods on the date and time that they are delivered then we may recover the additional costs associated with re-delivery.

3.5
You will accept delivery of the Goods including in circumstances where the Goods are greater or lesser than 10% of the quantity purchased. Such discrepancy shall be adjusted in the Fee pro rata to the discrepancy.

3.6
Shieling will take all reasonable steps to deliver the Goods specified in an Order Confirmation to you on the specified delivery date.

3.7
Although Shieling will endeavour to meet any requested delivery date, it is not liable for any loss for non-delivery or late delivery howsoever caused and the Customer is not entitled to cancel an order in the event of late delivery.

3.8
In any event where the Goods are damaged or destroyed and you receive insurance proceeds for such an event, then you will use those proceeds to pay our Fee associated with those Goods if it is unpaid. You agree to hold such funds on trust for Shieling until payment is made.

4. PACKAGING AND INGREDIENTS

4.1
You agree to supply all packaging necessary to package and the Goods manufactured by Shieling at no cost to Shieling.

4.2
You may from time to time supply ingredients required for manufacture at no cost to Shieling.

4.3
All other ingredients required for the Goods will be supplied by Shieling, at its cost.

4.4
Ownership and risk in packaging and ingredients supplied under clauses 4.1 or 4.2 (“Supplied Materials”) does not pass to Shieling and Shieling shall only use the Supplied Materials in connection with producing and packaging the Goods ordered by you.

4.5
The Supplied Materials are to be delivered to Shieling at least 5 working days prior to the date of manufacture or by such date as is reasonably instructed by Shieling. Failure to supply the Supplied Materials by this date may result in delivery of the Goods being delayed.

4.6
Storage of Supplied Materials may incur a reasonable monthly storage charge.

4.7
Shieling may require you to remove all Supplied Materials with a reasonable notice period (which shall be no less than 10 working days) at your cost.

4.8
You will be responsible for the tracking and reconciliation of Supplied Materials held on your behalf at Shieling premises.

4.9
You accept that up to 5% of the Supplied Materials may be wasted, destroyed or rendered unfit or unable to be used for the manufacture and packaging of the Goods.

4.10
If a raw material becomes obsolete or unusable as a result of termination or breach of this agreement by you, a formulation change approved by you, or a product being discontinued, obsolete or phased out of sale by you and the raw material cannot be separately used by Shieling, then you will reimburse Shieling for the direct cost of the unused raw materials, provided that the raw materials were procured by Shieling:

(a) to fulfil your open orders;
(b) under a direct instruction by you to purchase the materials;
(c) based on an orders forecast prepared by you and supplied to Shieling, or
(d) based on up to 4 months of your average usage of the material at the time of procurement.

5. OWNERSHIP

5.1
We own all Goods provided to you until we have received the Fee for them, and they have been collected from Shieling’s premises.

5.2
Payment of our Fee will only be deemed as received when those funds are in our bank account in cleared funds.

5.3
Where you receive any Goods prior to us receiving our Fee you agree:
(a) You will insure the Goods to their full insurable value or our Fee (whichever is higher);
(b) You will keep those Goods separated from other inventory or stock you hold; and
(c) You will hold any proceeds from the on-sale of the Goods on trust for Shieling.

5.4
You acknowledge that this agreement constitutes a security agreement under the Personal Property Securities Act 1993 (“PPSA”).

5.5
You grant us a security interest in all Goods supplied to you now and in the future, including the proceeds of those Goods, as security for payment of our Fee from time to time.

5.6
You waive your rights as debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131, 132 and 148 of the PPSA.

5.7
The parties agree that sections 114(1)(a), 133 and 134 will not apply to this agreement.

5.8
You will do all things required by Shieling to protect its security interest.

6. INTELLECTUAL PROPERTY

6.1
Where you supply us with any specifications, guidance or information for us to provide you with either Goods or Services (including new development Services) you warrant that you are not infringing on any third party intellectual property in any manner whatsoever and that no third party holds any rights in respect of such specifications, guidance or information.

6.2
You warrant that you will do all necessary research into any new product development to ensure that it does not infringe on any third-party intellectual property in any manner whatsoever.

6.3
Where you engage us to complete Services that require us to develop a product for you, then our scope of work will not extend to research into third party rights to such products. We provide no warranty in this regard except that we will not knowingly infringe a third party’s intellectual property rights.

6.4
Unless Shieling otherwise agrees in writing then notwithstanding that you may pay the Fee for our Services, any intellectual property (including but not limited to copyright, patents and trademarks) that we develop as part of the Services, will be owned by Shieling. Shieling grants you a non-exclusive, royalty-free, non-transferrable licence for you to use any intellectual property that we develop in any Goods that result from our Services. Such licence will continue while you engage us to produce those Goods after which it will terminate.

7. DEFECTS

7.1
You acknowledge that as a commercial entity you will do your own due diligence on the Goods and the Services that you ask us to provide to you and the Goods and Services are procured relying solely upon your skill and judgement. We make no warranty as to the manufacture and provision of Goods except:

(a) that they will be of immediately merchantable quality; and
(b) at the time of delivery, they will generally be in accordance with any specifications and descriptions agreed with you or generally consistent with any samples or examples of the Goods provided by Shieling and accepted by you but may have minor variations that do not materially affect their merchantable quality.

7.2
We make no warranty as to the Services that we provide except that they will be provided in a timely manner and in line with the scope of work that we agree on in writing at the commencement of the Services.

7.3
Where you engage us to complete Services that require us to develop a product for you, then we do not provide any warranty in respect to the product shelf life or latent defects in such a product and it is your responsibility to ensure that all testing or research that is required for the product is completed even if you engage us to complete that testing or research.

7.4
In the unlikely event that the Goods or Services are materially inferior to the agreed specifications or materially do not match the standards agreed between you and us, then you must contact us within 10 working days of the delivery of the particular Goods or the conclusion of the particular Services and clearly detail the issues (“Dispute Notice”). A Dispute Notice will not provide you with a right of set-off or deduction unless we agree in writing.

7.5
Failure to raise a Dispute Notice within the timeframe will mean that you accept our Goods and Services to be of an acceptable standard under this agreement.

7.6
Where you issue a Dispute Notice and Shieling agrees that the Goods or Services do not meet the agreed specifications or agreed standards (“Defective Goods or Services”) then Shieling, at our discretion, will either:
(a) resupply any part of the Defective Goods or Services as soon as possible and at no cost to you; or
(b) refund or credit you any amounts paid by you for the Defective Goods or Services and, at our discretion, reimburse you for any reasonable expenses you may incur in securing the Goods from elsewhere.

7.7
Shieling provides no ongoing warranty as to any Goods or Services so any latent defects will be your responsibility.

8. INSURANCE

8.1
Shieling shall, at its own expense, arrange and maintain adequate insurance in respects of its liabilities and responsibilities under this agreement.

8.2
The Customer shall, at its own expense, arrange and maintain adequate insurance in respects of its liabilities and responsibilities under this agreement.

9. CANCELLATION AND TERMINATION

9.1
Shieling may cancel the provision of Goods or Services at any time before the Goods or Service are provided by giving written notice. Shieling will not be responsible for any of your loss or costs that may arise due to cancellation.

9.2
Once an Order Confirmation has been provided, you may only cancel the provision of the relevant Goods with our consent. Any attempt to cancel after this time without our consent will result in the entire Fee being payable by you.

9.3
You may cancel the provision of Services at any time.

9.4
Where you cancel under clause 9.2 and 9.3 then Shieling may charge a Fee for work completed up to the date of cancellation and the Customer is liable for and indemnifies Shieling for any direct costs suffered by Shieling as a result of such cancellation. These terms shall continue to apply until all amounts are paid.

9.5
Where Shieling are not providing you with any Goods or Services either Party can terminate this entire agreement by notice in writing to the other Party.

10. FORCE MAJEURE

10.1
A Party shall not be liable for failure or inability to perform its obligations under this agreement where such failure or inability is principally attributable to a significant event that is out of a Party’s control e.g. an act of God (e.g. fire, natural disaster), war, riots, acts of terrorism, outbreak, pandemic or action by any government or governmental agency or other state owned entity. Nothing in this clause shall remove or limit the obligation of the Customer to pay the Fee if it has been rendered in accordance with this agreement or the Order Confirmation.

11. CONFIDENTIALITY

11.1
You agree that all information, knowledge or access that you have to Shieling or its premises is strictly confidential. You will not make available to any third party any information that you may obtain as a result of your engagement of Shieling including but not limited to Shieling customers, clients, processes, brands, suppliers, employees, contractors, know-how or products.

11.2
You will ensure that any of your agents, contractors, officers or employees are bound to keep such information that you receive as confidential in all respects and agree to be responsible for any breach of the above clause caused by any of agents, contractors, officers or employees.

11.3
We will similarly hold your information as confidential.


11.4
These clauses 11.1 to 11.3 inclusive shall survive termination of this agreement.

12. DEFAULT AND INDEMNITY

12.1
You indemnify Shieling completely from all costs or losses that it suffers due to any breach by you of this agreement, this includes but is not limited to:
(a) Costs of enforcement of your breach of this agreement;
(b) Costs of collection for all amounts due to Shieling under this agreement and under this indemnity including solicitor and own client costs;
(c) Your failure to insure any Goods that are at your risk but owned by Shieling or your failure to apply insurance proceeds as required by this agreement;
(d) Your failure to hold any Goods or proceeds separated from other inventory or proceeds;
(e) Your breach of any intellectual property warranties you have provided including our costs of defending or settling any claims made against us by a third party on a solicitor and own client basis;
(f) Your breach of confidentiality.

12.2
The liability for Shieling for any breach of this agreement will at all times be limited to the Fee for the particular provision of the Goods or Services that relates to the breach. Shieling will under no circumstances be liable for consequential losses or loss of profit.

13. PRIVACY

13.1
You authorise us to collect, hold and use your personal information for the purposes of assessing creditworthiness or marketing. We may disclose your information to third parties in order to enforce any breach by you of this agreement, collect monies from you or to assess your creditworthiness.

13.2
You may have the right to a copy of the information that we hold about you and to correct any of that information by contacting us by e-mail.

14. GENERAL TERMS

14.1
Any provision that is found to be unenforceable for any reason shall be severed from this agreement without affecting the remaining provisions of this agreement.

14.2
These terms shall be subject to New Zealand law and the parties submit to the jurisdiction of New Zealand.

14.3
Shieling may sub-contract, assign or licence any provision of Goods or Services without the consent of you.

14.4
These terms may be amended on particular provisions for Goods and Services but such amendments must be in writing and must be agreed to by Shieling.