Terms of Trade
1. DEFINED TERMS
1.1 In this contract:
Amount Owing means the purchase price of the Goods and/or Services and any other sums which the Supplier is entitled to charge under this contract.
CGA means the Consumer Guarantees Act 1993.
Customer means the buyer of Goods or Services.
Event of Default means an event where the Buyer fails to comply with the terms of this contract or any other contract with the Supplier or the Customer becomes insolvent, has a receiver appointed in respect of all or some of its assets, makes or is likely to make an arrangement with its creditors or has a liquidator (provisional or otherwise) appointed or is placed under statutory or official management or any equivalent or analogous event occurs under the law of any jurisdiction.
Goods means all products supplied or to be supplied by the Supplier to the Customer from time to time including (without limitation) [fertiliser products].
GST means goods and services tax.
Services means any services performed by the Supplier for the Customer from time to time, whether as part of the supply of Goods or otherwise, including (without limitation) [application of fertiliser from the air by helicopter].
Supplier means Futurespread (North) Limited.
2.1 Unless otherwise stated in writing by the Supplier:
(a) quotations will be open for acceptance for one month from the date of quotation;
(b) prices quoted are based on the full quantities specified in the quotation and may not necessarily apply on a pro rata basis for different quantities; and
(c) prices are quoted exclusive of GST.
3. PRICE AND PAYMENT
3.1 Subject to clause 3.2, the price of the Goods and/or Services will be the price in the Supplier’s quotation or (in the absence of a valid quotation) the Supplier’s price list as at the date the Goods are delivered or the Services performed.
3.2 Where any quotation includes an estimate of flying time in relation to application of fertiliser and the actual flying time required differs from that set out in the quotation, the Supplier shall have the right to alter the quoted price for the Goods and/or Services to reflect the actual flying time.
3.3 The price of any Goods and Services shall be increased by the amount of any GST.
3.4 Alterations to any price will be effective from the date specified by the Supplier at the time of giving notice to the Customer.
3.5 Where the Customer receives notice of a price increase, the Customer may cancel any order for Goods and/or Services affected by the price increase by written notice to the Supplier.
3.6 Unless otherwise stated by the Supplier or agreed in writing, payment is to be made in full by the [20th of the month] following the date of the Supplier’s invoice.
3.7 The Customer may not withhold any payment or make any deductions from any Amount Owing without the Supplier’s prior written consent.
3.8 If payment is not made in full by the due date, the Supplier may (without prejudice to any other remedies the Supplier may have) charge the Customer:
(a) default interest, at a rate per annum equal to % above the 90 day bank bill rate as quoted by the Supplier’s bank on the due date for payment, calculated on a daily basis on the unpaid portion of the price from the due until payment in full (whether before or after judgment); and
(b) all expenses and costs (including legal costs as between solicitor and client) in connection with the Supplier recovering or attempting to recover any overdue amount.
3.9 If for any reason the Supplier considers that the Customer is or may be unable to meet its payment obligations to the Supplier, the Supplier shall be entitled to take the following actions until such obligations are fully satisfied:
(a) demand payment of part or all of such amounts due; or
(b) require security for such obligations to its full satisfaction before any further supplies are made to the Customer; or
(c) withhold without notice deliveries of Goods or Services.
4. ORDERS AND DELIVERY
4.1 The Supplier is not obliged to accept any order placed by the Customer with the Supplier.
4.2 Cancellation of or variations to an order must be advised to the Supplier in writing and will only be accepted subject to reimbursement by the Customer for all costs incurred by the Supplier as a result of any cancellation or variation.
4.3 The Supplier will endeavour to meet agreed delivery or completion dates but will not be held liable for, nor may the Customer cancel any order, for late delivery or late completion.
4.4 Unless otherwise agreed, the Supplier will arrange delivery of the Goods. Delivery may be made by instalments and each instalment shall be treated as a separate contract under the terms of this contract.
4.5 Unless otherwise expressly stated in writing by the Supplier, prices quoted will not include the cost of delivery and the Customer will be invoiced for any charges incurred by the Supplier in arranging the delivery of Goods.
4.6 Delivery will be deemed to have been made when the Goods arrive at the delivery point specified in the quotation or otherwise agreed with the Customer. If no delivery point is so stated or agreed, delivery shall be made at the Supplier’s premises and shall take place at the time the Goods are made available for despatch.
4.7 If the Goods cannot be delivered for any reason, delivery is delayed for any reason or the Customer refuses to accept delivery, the Goods will be deemed to have been delivered when the Supplier was ready to deliver the Goods and Supplier may (without limiting any other right the Supplier may have) charge the Customer for any costs or expenses incurred by the Supplier as a result of the delay, including waiting time for unloading Goods, handling charges, storage, transportation and disposal of the Goods.
4.8 Where any quotation given to the Customer includes the cost of delivery, the price quoted will cover only the usual methods of transportation used by the Supplier and delivery between the hours of 8.30am and 5.00pm Monday to Friday, excluding statutory holidays. The Supplier may, at the Customer’s request, agree to arrange delivery by other means, or at other times, but will be entitled to charge the Customer for any additional costs it may incur.
4.9 References to “delivery” in clauses 4.4 to 4.8 (inclusive) and clause 5.1 do not relate to the application by the Supplier of fertiliser from the air by helicopter, or the transportation of fertiliser from the relevant airport to the place of application.
5. RISK AND OWNERSHIP
5.1 Risk in the Goods will pass to the Customer upon delivery in accordance with the terms of this contract.
5.2 Ownership in any Goods will not pass to the Customer until the full payment of the Amount Owing by the Customer to the Supplier in respect of those Goods and all other Goods and Services supplied by the Supplier, has been received by the Supplier.
5.3 The Supplier may bring an action for price of the Goods or any other part of the Amount Owing even where ownership of the Goods may not have passed to the Customer.
6. SECURITY INTEREST
6.1 The Customer grants to the Supplier a security interest in the Goods as security for payment of the Amount Owing and any other moneys owing by the Customer to the Company from time to time, whether in relation to this contract or any other contract or on any other account whatever (“Customer’s Indebtedness”) and for the performance by the Customer of all the Customer’s other obligations from time to time to the Supplier.
6.2 The Customer agrees to do anything that the Supplier requires to ensure that the Supplier has a perfected security interest in the Goods.
6.3 While the Goods continue to secure the Customer’s Indebtedness, the Customer must store the goods separately and clearly identify the Goods as being subject to the Supplier’s security interest.
6.4 The Supplier may allocate all amounts received from the Customer in any manner it determines including any manner required to preserve any purchase money security interest in the Goods.
6.5 The Customer agrees that nothing in sections 114(1)(a), 133 and 134 of the Personal Property Securities Act 1999 (“PPSA”) shall apply to this contract, or the security under this contract, and waives the Customer’s rights under section s 121, 125, 129, 131 and 132 of the PPSA.
6.6 The Customer waives the right to receive a copy of the verification statement confirming registration of a financing statement or financing change statement relating to the security interest under this contract.
6.7 The Customer must advise the Supplier immediately of any Event of Default or any action by third parties (including any of its creditors) affecting the Supplier’s security interest in the Goods.
7. WARRANTIES AND CLAIMS
7.1 Where clause 7.6 does not apply, any right which the Customer may have to reject non-conforming Goods or Services or in respect of short delivery of Goods shall only be effective if the Customer notifies the Supplier in writing within 7 days following delivery of the Goods or performance of the Services and the Supplier is given the opportunity to inspect the Goods or the product of the Services.
7.2 Subject to clause 7.3, the Supplier warrants that, in relation to any Services performed under this contract, it will employ techniques, methods and procedures of a standard consistent with accepted practice in the relevant industry.
7.3 The Supplier accepts no responsibility for technical advice which is given in good faith and no warranty or guarantee is given in relation to outcomes resulting from application of fertiliser on land, including (without limitation) outcomes affecting pasture, crops, livestock and other animals.
7.4 The Supplier will make the benefit of any warranty provided to the Supplier by the manufacturer or supplier of the Goods available to the Customer provided that the terms of any such warranty do not preclude this and the Customer complies with the terms of any such warranty as notified to the Customer by the Supplier. All other warranties, conditions and representations in respect of the Goods (express or implied) are excluded to the fullest extent permitted by law.
7.5 The Customer agrees that the CGA does not apply to any Goods or Services which are acquired by the Customer for business purposes.
7.6 Where Goods or Services are not acquired by the Customer for business purposes:
(a) the Customer acknowledges that the Supplier does not provide any Express Guarantee (as defined in the CGA) other than those expressly confirmed by the Supplier in writing; and
(b) the Supplier reserves the right to replace any Goods, or re-perform any Services, which fail to comply with any guarantee contained in the CGA.
7.7 Nothing in this contract is intended to have the effect of contracting out of the provisions of the CGA except to the extent permitted by that Act, and these terms are to be modified to the extent necessary to give effect to the intention.
7.8 Except for any rights the Customer may have under any express term of this contract, all guarantees, warranties, descriptions, representations or conditions whether expressed or implied by law, trade, custom or otherwise are expressly excluded to the fullest extent permitted by law.
8.1 To the extent that the liability of the Supplier under this contract is not otherwise limited or excluded and to the extent permitted by law, the total liability of the Supplier whether in tort (including negligence), contract or otherwise, for any loss, damage or injury arising directly or indirectly from any defect in the Goods or Services or any breach of the Supplier’s obligations under this contract is limited to the lesser of:
(a) the price paid by the Customer for the relevant Goods or Services; or
(b) the cost of repairing or replacing the defective Goods, or re-performing the relevant Services; or
(c) the actual loss or damage suffered by the Customer (excluding any loss or damage of the type referred to in clauses 7.3 and 8.2).
8.2 Notwithstanding any other provision of this contract, under no circumstances will the Supplier be liable for any loss of income or profits or any consequential, indirect or special damage or injury of any kind suffered by the Customer or any other person.
9.1 If an Event of Default occurs:
(a) the Supplier may suspend or terminate this contract;
(b) all costs incurred by the Supplier as a result of the suspension or termination of this contract will be payable by the Customer; and
(c) the Amount Owing shall immediately become due and payable notwithstanding that the due date has not arisen.
10. INTELLECTUAL PROPERTY
10.1 Existing intellectual property which is not developed under this contract but which is used for the purposes of this contract shall remain the property of its current owner.
10.2 Unless otherwise agreed in writing, ownership of intellectual property, or modifications and additions to existing intellectual property, which is developed during performance of any Services under this contract shall vest in the Supplier without the need for any party to execute any further document.
11.1 The Customer acknowledges and agrees that the performance of Services involving the application of fertiliser from aircraft is subject to the prevailing weather conditions being suitable, and that all decisions concerning whether or not the conditions are suitable for flying shall be taken at the sole discretion of the Supplier.
12. FORCE MAJEURE
12.1 The Supplier will not be in breach of its obligations under this contract if, due to inevitable accident, Act of God, fire, strikes, lockouts or other labour interferences, riots, war, unsuitable weather conditions or any cause beyond the reasonable power or control of the Supplier, the Supplier is prevented from performing such obligations.
12.2 The Supplier will notify the Customer of the occurrence of any event described in clause 11.1 will use its reasonable efforts to carry out its contractual obligations as soon as reasonably practicable.
13. CUSTOMER’S PROPERTY
13.1 The Customer’s property supplied or made available to the Supplier for the purposes of this contract will be wholly at the risk of the Customer. The Supplier will use reasonable care in using such property but will not be liable for any loss or damage to it.
13.2 The Supplier shall not be responsible for the loss of any data of the Customer where loss of such data occurs during the course of performing any Services other than as a result of any wilful act of the Supplier.
14.1 If the Supplier exercises or fails to exercise any right or remedy available to it, this shall not prejudice the Seller’s rights in exercising that or any other right or remedy.
14.2 The Customer must not transfer or assign its rights or obligations under this contract to anyone else without the Supplier’s written consent.
14.3 Where any provision of these terms is rendered void, unenforceable or otherwise ineffective by operation of law, that will not affect the enforceability or effectiveness of any other provision.
14.4 Either party to any dispute arising out of this contract which has not been resolved within 14 days of that dispute arising may require that dispute to be referred to mediation. The mediator shall be appointed by both parties or, where the parties cannot agree within 14 days, appointed by the chairperson or any other office holder of the New Zealand chapter of LEADR. The mediator shall conduct the mediation in accordance with the guidelines agreed between the parties or, if the parties cannot agree within 14 days following appointment of the mediator, in accordance with the guidelines set by the mediator. The costs and expenses of the mediator shall be shared by the parties equally.
14.5 Except to the extent that this contract is expressly incorporated in any other agreement between the Supplier and the Customer by reference, this contract constitutes the entire agreement, understanding and arrangement (express and implied) between the parties relating to the subject matter of this contract and supersedes and cancels any previous agreement, understanding or arrangement whether written or oral.
14.6 This contract may only be amended, supplemented or novated in writing executed by both parties.
14.7 This contract shall be governed by and construed in accordance with the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand