Terms and conditions of trade.
1. DEFINITIONS
a) “Customer” shall mean the Customer or any person acting on behalf of and with the authority of the Customer. All references to Customer also include the Guarantor (s), if any.
b) “Company” shall mean Quigley Feeds NZ Ltd and their successors and assigns, authorised employees or agents.
c) “Goods” means all present and after acquired goods including all goods invoiced to the Customer by the Company from time to time as outlined in any estimate, invoice or any evidence of any supply of goods whatsoever. Goods include all goods created by the provision of a service by the Company and includes all goods that the Company purchases from the Customer.
d) “Price” shall mean the cost of the goods and/or services, as agreed between the Company and the Customer and shall be exclusive of GST unless stated otherwise in writing.
e) “Services” shall mean all services supplied to the Customer by the Company.
2. ACCEPTANCE
a) These conditions of sale constitute the entire contract, including all future contracts between the Company and the Customer. Any instructions received by the Company from the Customer for the supply of goods or services shall constitute acceptance of the terms and conditions contained herein. No conditions or stipulations in or attached to your form of acceptance of this agreement or any estimate or any other paper containing writing which is inconsistent with our conditions of sale, or which purports to add to or modify them, shall have any effect unless accepted by the Company in writing.
b) Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
3. PRICES
a) Where an estimate is provided, all estimates are based on rates and costs at the date of estimate. The Company reserves the right to adjust any estimate prior to the date of dispatch of goods or performance of services on account of any increases in rates and costs. If additions or modifications to goods or services are requested by the Customer after the acceptance of the estimate, then the estimate shall be adjusted to reflect the additional modification.
b) Where no price is stated in writing or agreed to orally, the price shall be indicated on invoices provided by the Company in respect of goods or services supplied.
c) If a Customer requires delivery of the goods, unless otherwise agree, all freight costs are payable by the Customer.
4. PAYMENT
All accounts are payable by the 20th day of the month following the account being rendered.
5. SUITABILITY FOR CUSTOMER’S PURPOSE
The Customer must satisfy himself that the goods and services are fit and suitable for the purposes for which they are required and the Company gives no warranty nor will it accept any liability in respect of the fitness or suitability for the Customer’s purposes.
6. RISK
a) The risk in any goods provided by the Company shall pass to the Customer when the goods are picked up by the Customer from the Company’s premises or some other agreed location, or, where agreed, when the goods have been delivered to the Customer’s premises by the Company or when possession of the goods is given to a carrier, courier or other Bailee, by the Company, for the purposes of transmission to the Customer. For the provision of services, the risk will always lie with the Customer, even though title in any goods created by the services will not pass to the Customer until the Customer has made payment in full for all goods and services provided by the Company and all other sums due to the Company by the Customer on any account whatsoever. For goods purchased by the Company, from the Customer, risk in all goods will not pass until the goods are collected by the Company or its carrier or other Bailee, or when the Customer has delivered the goods to the Company at an agreed location.
b) Any dates quoted by the Company for the delivery of goods or commencement or completion of any services are approximate only and shall not form part of the agreement. The Company shall use its best endeavours to deliver the goods or services by the quoted date. However, it will not, under any circumstances, be liable for any costs, expenses, damages or loss of profits incurred by the Customer as a result of the delay.
7. DEFAULT
a) If the Customer defaults upon this agreement the Customer hereby authorises the Company to enter upon any premises or property occupied by the Customer or any property where the goods are stored or held without notice, in order to inspect, search for and remove the goods supplied and the Customer agrees to procure all other rights (including consents) necessary to enable, and to indemnify, the Company against any liability incurred in connection with such entry, taking possession and removal. The Company shall be entitled to recover and resell the goods on commercially reasonable terms and apply the proceeds derived to all or part payment of the debt and all costs incurred in 7 (c). The Customer will remain liable to the Company for any shortfall.
b) Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2% per calendar month and shall accrue at such a rate after as well as before any judgment.
c) Should the Company be required to commence any action to recover outstanding accounts and interest accruing thereon, the Customer shall be liable to reimburse the Company for all legal costs and debt collection costs and commission incurred by it in enforcing payment of the overdue account, whether or not Court proceeds are filed.
d) In the event that:
e) Any money payable to the Company becomes overdue or if at any time the customer is in breach of any obligation under this agreement or any other agreement with the Company or if the Customer jeopardises the Company’s security interest in goods whatsoever, or in the Company’s opinion the Customer will be unable to meet its payments as they fall due, or;
f) 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, then without prejudice to the Company’s other remedies at law:
g) The Company shall be entitled to cancel or suspend the provision of any goods or services to the Customer which remain unperformed or un-provided, and any of its other obligations under the terms and conditions and will not be liable to the customer for any loss or damage the Customer suffers due to the Company exercising its rights under this clause; and
h) All amounts owing to the Company shall, whether or not due for payment, immediately become due and payable.
i) Enforce any security interest granted to it by the Customer.
8. TITLE
a) Property in the goods shall not pass until the Customer has made payment in full for all goods and services provided by the Company and all other sums due to the Company by the Customer on any account whatsoever. When the Company is purchasing goods from the Customer, title and property shall pass at the earlier of the time and collection of the goods (by the Customer or at the time to delivery by the Customer to the Company and premises) or upon payment by the Company for the goods.
b) It is further agreed that:
c) Until such time as ownership of the goods shall pass from the Company to the Customer the Company may give notice in writing to the Customer to return part or all for the goods to the Company. Upon such notice the rights of the Customer to obtain ownership or any other interest in the goods shall cease.
d) If the Customer fails to return the goods to the Company, then the provisions of 7 (a) shall apply.
e) Until such time as ownership of the goods shall pass from the Company to the Customer, the Customer will keep the goods separate from any other goods in its possession and will keep the goods properly stored, protected, insured and identified identifiable as the Company’s property.
9. PERSONAL PROPERTY SECURITIES ACT 1999 (OR ITS SUCCESSOR)
a) The Customer acknowledges and agrees that:
b) These terms and conditions constitute a security interest in the goods for the purposes of the Personal Property Securities Act 1999 (PPSA) as security for payment by the Customer of all amounts due under the agreement including any future amounts; and
c) In consideration of the Company providing goods to the Customer, including all future advances of goods, the Customer grants a Purchase Money Security Interest (as defined in the PPSA) to the Company which will continue until the whole of the purchase price has been paid in full. If any goods supplied to the Customer are disposed of prior to payment and/or they become mixed with or parts of other goods (whether supplied by the Company or not) then the security interest shall continue in the proceeds of sale of the goods or the product produced by the mixing of the goods.
d) The Customer undertakes to:
e) Sign any further documents and/or provide any further information, such information to be complete, accurate and require to register a financing statement or financing charge statement on the Personal Property Securities Register;
f) Indemnify, and upon demand reimburse, the Company for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
g) Not register a financing change statement or a change demand without the prior written consent of the Company;
h) Give the Company not less than fourteen (14) days prior written notice of any proposed change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice); and
i) Immediately advise the Company 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.
j) The Company and the Customer agree that nothing in sections 114(1)(a), 117(1)(c), 122 133 and 134 of the PPSA shall apply to these Terms and Conditions.
k) The customer waives its rights as a debtor under section 116, 119, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
l) The customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
10. LIMITATION OF LIABILITY
a) Any liability of the Company of any nature whatsoever arising directly or indirectly from any defect in any goods or any services provided by the Company shall be limited to the replacement or repair of such defect and shall not in any case exceed the invoice value of the goods or the services provided.
b) The Customer shall inspect the goods upon delivery and the services upon completion.
c) Any complaint must be made in writing and communicated to the Company within 14 days after the goods have been provided or the services completed and the Customer shall then afford the Company an opportunity to inspect the goods within a reasonable time of receiving the notice.
d) If the Company agrees in writing that the goods are defective, then the Customer may reject the goods providing that:
e) The goods are returned at the Customer’s cost within seven (7) days of the date of the Company’s written agreement that the goods are defective;
f) The Company will not be liable for goods which have not been stored or used in a proper manner; and
g) The goods are returned in the condition in which they were delivered.
h) If the Customer fails to comply with any of the provisions outlined above, the goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
11. CANCELLATION
a) The company may cancel these terms and conditions or cancel delivery or purchase of goods and Services at any time before the Goods are delivered by giving written notice. On giving such notice the Company shall promptly repay to the Customer any sums paid in respect of the Price for those Goods. The company shall not be liable for any loss or damage whatsoever arising from such cancellation.
b) At the Company’s sole discretion, the Customer may cancel delivery of Goods and/or Services or may cancel any agreement to purchase. In the event that the Customer cancels delivery of Goods and/or Services the Customer shall be liable for any costs incurred by the company up to the time of cancellation.
12. DISPUTES
If any dispute arises out of this contract, then the Customer hereby agrees that if the total amount in dispute is less than $20,000.00 then the parties shall refer the matter to Arbitration. All disputes shall be determined according to the law of New Zealand.
13. GENERAL
a) If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provision shall not be affected, prejudiced or impaired.
b) The Company shall be under no liability whatsoever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Company of these terms and conditions, whether in contract tort or others.
c) The Customer shall indemnify the Company against all claims and loss of any kind whatsoever however caused or arising and without limited the generality of the foregoing of this clause whether caused or arising as a result of the negligence of the Company or otherwise, brought by any person or company in connection with any matter, act, omission, or error by the Company in connection with goods and services provided.
d) The guarantees contained in the Consumer Guarantees Act 1993 or its successor are excluded where the customer acquires goods or services for the company for the purposes of a business in terms of sections 2 and 43 of that Act.
e) Failure by the Company to enforce any of the terms and conditions contained in this agreement shall not be deemed to be a waiver of any of the rights and obligations of the Company under this agreement.
f) Neither party shall be liable for any default due to any act of God, terrorism, war, strike, lock out, industrial action, flood, storm or other event beyond the reasonable control of either party.
g) The Customer shall not set off against the Price amounts due from the Company.
h) The Company may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
i) The company reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the Company notifies the Customer of such change. All new agreements made after the new terms and conditions of trade have been notified will be deemed to have been made in acceptance of the new terms and conditions of trade.
j) The customer agrees that the Company may obtain information about the Customer from any source including credit assessment, debt collecting and direct marketing activities and the Customer consents to any person providing the company with such information.
k) The laws of New Zealand shall apply to this agreement.
l) If the Customer is a company or trust, the Director(s) or trustee(s) signing this agreement, in consideration for the Company agreeing to supply goods and services to the Customer at its request, also sign this contract in their personal capacity and jointly and severally personally undertake as principal debtors to the Company the payment of any and all monies now or hereafter owned by the Customer. Any personal liability of a signatory hereto shall not exclude the Customer in any way whatsoever from the liabilities and obligations contained in this contract. The signatories and Customer shall be jointly liable and severally liable under the terms and conditions of this contract and for payment of all sums due hereunder.