1.1. “Seller” shall mean Biogrow (2013) Limited.
1.2. “Buyer” shall mean the purchaser of the Goods and/or Services or any person or seller acting on behalf of and with the authority of the purchaser.
1.3. “Guarantor” means that person (or persons) who agrees herein to be liable for the debts of the Buyer.
1.4. “Goods” shall have the same meaning as in Section 2 of the Sale of Goods Act 1908 and are Goods supplied by the Seller to the Buyer (and includes any incidental supply of Services).
1.5. “Price” shall mean the cost of the Goods as agreed between the Seller and the Buyer subject to clause 5 of this contract.
2.1. Any instructions received by the Seller from the Buyer for the supply of Goods and/or Services and/or acceptance of Goods and/or Services by the Buyer shall constitute acceptance of the terms and conditions contained herein.
2.2. None of the Seller’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the Seller in writing nor is the Seller bound by any such unauthorised statements.
3. Goods / Services
3.1. The Goods are as described on the invoices, quotation, tender documents, supply authorisation or any other commencement forms as provided by the
Seller to the Buyer.
3.2. The Seller does not undertake as to the quality or fitness for any particular purposes of the Goods supplied under this agreement except as follows where the Goods are bought by description, and the Seller deals in Goods of that description (whether the Seller is the manufacturer or not) the Seller undertakes the Goods shall be of merchantable quality provided that the Buyer shall examine the Goods and there shall be no undertaking as regards defects which such examination ought to reveal.
3.3. The Buyer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that:
(a) Such discrepancy in quantity shall not exceed 5%
(b) The Price shall be adjusted pro rata to the discrepancy.
4.1. The Goods shall be supplied in accordance with the description contained in the Seller’s specifications, quotation, supply authorisation, or any other commencement forms provided however that the Seller may from time make changes in the specifications of the Goods which are required to comply with safety or statutory requirements or which do not materially affect the quality or fitness for purpose of the Goods.
4.2. The bulk of the Goods will correspond with the sample in quality provided that the Seller shall have no liability to the Buyer unless more than 10% of the Goods fail to correspond.
4.3. The Buyer shall be deemed to have had a reasonable opportunity of comparing the bulk of any consignment of Goods with the sample by the time seven (7) days from delivery has expired.
4.4. Upon the Buyer having been deemed to have had a reasonable opportunity of comparing the bulk of any consignment with the sample the Buyer will also be deemed to have notice of any defect rendering the Goods not in accordance with the contract and to have accepted all the Goods so delivered.
5. Price and Payment
5.1. The Price of the Goods shall be:
(a) As indicated on invoices provided by the Seller to the Buyer in respect of Goods supplied; or
(b) The Seller’s quoted Price which shall be binding upon the Seller provided that the Buyer shall accept in writing the Seller’s quotation within five (5) days.
5.2. Time for payment for the Goods shall be of the essence and will be stated on the invoice, quotation or any other forms. If no time is stated then payment shall be due on delivery.
5.3. The method of payment will be made by direct credit, cash, cheque, Bank Cheque, or by any other method as agreed to between the Buyer and Seller.
6. Delivery of Goods
6.1. Delivery of the Goods shall be made to the Buyer’s nominate address. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery; or
6.2. The Seller may deliver the Goods by separate instalments (in accordance with the agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions in this contract of sale.
7. Return of Goods
7.1. The Buyer shall inspect the Goods on delivery and shall within three (3) days of delivery notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or sample. The Buyer shall afford the Seller an opportunity to inspect the Goods and installation with a reasonable time following delivery. If the Buyer shall fail to comply with these provisions the Goods shall be conclusively presumed to be in accordance with the contract and free from any defect or damage which would be apparent on a reasonable examination of the Goods and the Buyer shall be deemed to have accepted the Goods.
7.2. Except as provided in this clause, the Buyer is not entitled to return the Goods to the Seller for any reason. For defective Goods, which the Buyer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) repairing or replacing the Goods, or refunding the price.
8.1. The Seller retains title to property in the Goods until payment of the Price has been received but all risk for the Goods passes to the Buyer on delivery.
8.2. If any of the Goods are damaged or destroyed prior to title to them passing to the Buyer, the Seller is entitled, without prejudice to any of its other rights or remedies under these terms and conditions of trade (including the right to receive payment of the balance of the Price of the Goods), to receive all insurance proceeds payable for the Goods. This applies whether or not the Price has become payable. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquires. The Seller will apply the insurance proceeds as follows:
(a) First, in payment of the Price of the Goods that are damaged or destroyed, if unpaid;
(b) Second, in payment of the outstanding Price of any other Goods supplied to the Buyer by the Seller;
(c) Third, in payment of any other sums payable to the Seller by the Buyer on any account;
(d) Fourth, any balance is to be paid to the Buyer.
8.3. Subject to the express terms of this agreement, if the Seller agrees to send the Goods to the Buyer at the expense of the Buyer then delivery of the Goods to a carrier, is deemed to be a delivery of the Buyer.
8.4. The costs of carriage and any insurance, which the Buyer reasonably directs, the Seller to incur shall be reimbursed by the Buyer (without any set‐off or other withholding whatever) and shall be due on the date for payment of the Price. The carrier shall be deemed to be the Buyer’s agent.
8.5. Where there is no agreement that the Seller shall send the Goods to the Buyer, delivery to a carrier at limited carrier’s risk at the expense of the Buyer is deemed to be delivery to the Buyer.
8.6. The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.
8.7. Notwithstanding that the Seller may have delayed or failed to deliver the Goods (or any of them) promptly the Buyer shall be bound to accept delivery and to pay for the Goods in full provided that delivery shall be tendered at any time within 1 month of the delivery date.
9.1. The Buyer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him and the Buyer acknowledges that they buy the Goods relying solely upon their own skill and judgement and that the Seller shall not be bound by nor responsible for any term, condition, representation or guarantee other than the guarantee given by the Manufacturer.
10. Consumer Guarantees Act 1993 (“the Act”)
10.1. If the Buyer is not a consumer as defined in the Act or the Buyer acquires or holds itself out as acquiring the Goods under the Contract for the purposes of a business, nothing in the Act will apply to the supply of the Goods.
10.2. In the case of any Buyer (to which clause Error! Reference source not found. does not apply), the provisions of these terms and conditions will only apply to the extent that those provisions do not limit or exclude any provisions of the Act and will take effect subject to the provisions of the Act.
11. Default & Consequences of Default
11.1. Interest on overdue invoices shall accrue from the date when payment becomes due from day to day until the date of payment at a rate of 2.5% per calendar month and shall accrue at such a rate after as well as before any judgement.
11.2. If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify the Seller from and against all the Seller’s legal costs and disbursements and in addition all of the Seller’s nominees costs of collection as per that company’s current published scheduled rates.
11.3. Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Buyer and any of it’s other obligations under this agreement/these terms and conditions. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller exercised it’s rights under this clause.
11.4. In the event that:
(a) Any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable to meet its payment as they fall due or;
(b) The Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an agreement with creditors, or makes an assignment for the benefit of its creditors, or;
(c) A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of any Buyer, then:
(i) The Seller shall be entitled to cancel all or any part of any order with the Buyer which remains unperformed in addition to and without prejudice to any other remedies; and
(ii) All amounts owing to the Seller shall, whether or not due for payment immediately become due and payable; and
(iii) The Seller shall be entitled to reclaim any Goods in the Buyer’s possession or control, which have been supplied by the Seller and to dispose of the Goods for its own benefit and shall be entitled to enter, directly or by its agents, upon any land or premises where the Seller believed the Goods which it has supplied are stored without being liable to any person.
12.1. It is the intention of the Seller and agreed by the Buyer that title to the Goods shall not pass until:
(a) Payment of the Price; and
(b) The Buyer has met all other obligations due by the Buyer to the Seller in respect of all contracts between the Seller and the Buyer, and that the Goods, or proceeds of the sale of the Goods, shall be kept separate until the Seller shall have received payment and all other obligations are met.
12.2. Receipt by the Seller of any form of payment other than cash shall not be deemed to be a payment until that form of payment has been honoured, cleared or recognised and until then the Seller’s ownership of rights in respect of the Goods shall continue.
12.3. Until title to the Goods shall pass from the Seller to the Buyer the Seller may give notice in writing to the Buyer to return the Goods or any of them to the Seller. Upon such notice the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease.
12.4. If the Buyer fails to return the Goods to the Seller then the Seller or the Seller’s agent may enter upon and into buildings and premises owned, occupied or used by the Buyer, where the Goods are situated and take possession of the Goods, without being responsible for any damage thereby caused.
12.5. The Buyer shall not charge the Goods in any way nor give any interest in the Goods while they remain the property of the Seller.
12.6. The Seller may require payment of the Price or the balance of the Price due together with any other amounts due from the Buyer to the Seller arising out of this agreement, and the Seller may take any lawful steps to acquire payment of the amounts due and the Price.
12.7. The foregoing provisions shall not entitle the Buyer to return the Goods without demand from the Seller.
12.8. The Seller can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Buyer.
13. Security and Charge
13.1. Notwithstanding anything to the contrary contained herein or any other rights which the Seller may have howsoever:
(a) The Buyer shall if required by the Seller or the Seller’s nominee to register a security interest securing payment of the Price for the Goods and/or Services provided by the Seller hereunder to the Buyer together with any monetary obligations arising hereunder whether pursuant to the existing law or that contemplated by the Personal Properties Securities Act 1999 or otherwise howsoever; and/or
(b) Where the Buyer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Buyer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Seller or the Seller’s nominee to secure all amounts and other monetary obligations payable under the within terms and conditions of trade. The Buyer and/or the Guarantor acknowledge and agree that the Seller (or the Seller’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(c) Should the Seller elect to proceed in any manner in accordance with this within clause and/or its sub‐clauses, the Buyer and/or Guarantor shall indemnify the Seller from and against all the Seller’s legal costs and disbursements calculated on a solicitor and own client basis plus all reasonable costs of the Seller’s appointed attorney (if any).
(d) To give effect to the provisions of clause 15.1 (a) to (e) inclusive hereof the Buyer and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Seller or the Seller’s nominee, as the Buyer’s
and/or Guarantor’s true and lawful attorney to execute mortgages and charges (whether registrable or not) and including such other terms and conditions as the Seller and/or it’s nominee shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Buyer and/or the Guarantor in any land, realty or asset in favour of the Seller and in the Buyer’s and/or Guarantor’s name as may be necessary to secure the said Buyer’s and/or the Guarantor’s obligations and indebtedness to the Seller and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in the Seller’s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.
14.1. The Seller may cancel this contract at any time before the Goods are delivered by giving written notice. On giving such notice the Seller shall promptly repay to the Buyer any sums paid in respect of the Price. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
15. Lien & Stoppage in Transit
15.1. Where the Seller has not received or been tendered the whole of the Price, or the payment has been dishonoured, the Seller shall have:
(a) A lien on the Goods;
(b) The right to retain the Goods for the Price while the Seller is in possession of them;
(c) A right to stop the Goods in transit whether or not delivery has been made or ownership has passed;
(d) A right of resale;
(e) A right of disposal; provided that the lien of the Seller shall continue despite the commencement of proceedings or judgement for the Price having been obtained.
15.2. In the event of the insolvency of the Buyer or the non‐payment of the Price by the due date the unpaid Seller may exercise the right of stoppage in transit either by retaking actual possession of the Goods or by giving notice of claim to the carrier or other bailee who has possession of the Goods, whether the agent of the Buyer or not. Such notice may be given either to the person in actual possession of the Goods or to the principle of the person in possession.
16. Privacy Act
16.1. The Buyer and the Guarantor/s (if separate to the Buyer) authorises the Seller to collect, retain and use any information about the Buyer, for the purpose of assessing the Buyer’s creditworthiness or marketing any Goods and Services provided by the Seller to any other party.
16.2. The Buyer authorises the Seller to disclose any information obtained to any person for the purposes of credit references.
16.3. Where the Buyer is a natural person and are authorities or consents for the purposes of the Privacy Act 1993.
17. Personal Property Securities Act 1999 (“PPSA”)
17.1. Upon assenting to these terms and conditions in writing the Buyer acknowledges and agrees that:
(a) These terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) A security interest is taken in all Goods previously supplied by the Seller to the Buyer (if any) and all Goods that will be supplied in the future by the Seller to the Buyer during the continuance of the parties relationship.
17.2. The Buyer undertakes to:
(a) Sign any further documents and/or provide any further information, such information to be complete, accurate and up‐to‐date in all respects, which the Seller may reasonably require to register a financing statement
or financing change statement on the Personal Property Securities Register;
(b) Indemnify, and upon demand reimburse, the Seller 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;
(c) Not register a financing change statement or a change demand without the prior written consent of the Seller;
(d) Give the Seller not less than fourteen (14) days prior written notice of any proposed change in the Buyer’s name and/or any other change in the Buyer’s details (including but not limited to, changes in the Buyer’s
address, facsimile number, or business practice); and
(e) Immediately advise the Seller of any material change in the nature of proceeds delivered from such sales.
17.3. The Seller and the Buyer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms and Conditions.
17.4. The Buyer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
17.5. Unless otherwise agreed to in writing by the Seller, the Buyer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
17.6. The Buyer unconditionally ratifies any actions taken by the Seller under and by virtue of the power of attorney given by the Buyer to the Seller.
18.1. 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 provisions shall not be affected, prejudiced or impaired.
18.2. All Goods and Services supplied by the Seller are subject to the laws of New Zealand and the Seller takes no responsibility for changes in the law, which affect the Goods or Services supplied.
18.3. The Seller shall be under no liability whatever to the Buyer for any indirect loss and/or expense (including loss of profit) suffered by the Buyer arising out of breach by the Seller of this contract.
18.4. Neither party shall be liable for any default due to any act of god, war, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
18.5. The Buyer shall not set off against the Price amounts due from the Seller whether under the applicable contract of sale or otherwise.
18.6. The provisions of the Contractual Remedies Act 1979 shall apply to the contract as if Section 15(d) of the Act which states that nothing in the Act shall affect the Sale of Goods Act 1908, were omitted from the Contractual Remedies Act 1979.