Terms of Trade – Nutri-Dose NZ (2023) Ltd

1. General
   • These Terms of Trade bind the Customer whether or not the goods have been supplied and/or installed and/or whether or not any services have been provided to the Customer by the Supplier before or after the date of the Trading Account Application. These Terms of Trade shall apply to the goods and/or services specified on any Order Form accepted by the Supplier and to all goods and/or services supplied to the Customer by the Supplier.
   • Unless details of payment for goods are specified on the Order Form completed by the Customer then the Customer will pay the Supplier’s account in full by the 20^th day of the month following the date of invoice (‘the due date”). If payment details are specified on the Order Form completed by the Customer then the Customer will pay the Supplier’s account in respect of goods covered by the Order Form in compliance with the Order Form and “the due date” will be determined pursuant to the Order Form.
   • The Customer shall make all payments due in full in cleared funds on or before the due date without any set off or deduction whatsoever. If payment is not made in full in cleared funds to the Supplier on or before the due date:

• The Customer (and the guarantor) are liable to pay penalty interest on the money owing at the rate of 3% per month; and

(ii)   The Customer (and the guarantor) are also liable to pay all the expenses and legal costs (on a solicitor/client basis) and/or debt collector’s fees and charges incurred by the Supplier in the enforcement or attempted enforcement of any debt owed by the Customer and/or the agreement between the Supplier and the Customer; and

(iii)  The Customer grants an irrevocable license to the Supplier to enter any premises occupied by the Customer to recover possession of the Supplier’s goods.

• If the Customer fails to make any payment in cleared funds on or before the due date then without prejudice to any of the Supplier’s other rights the Supplier may:

(i)    Suspend or cancel deliveries of any other goods and/or provision of any services due to the Customer; and/or

(ii)   Appropriate any payment made by the Customer to such of the goods (or goods supplied under any other agreement with the Customer) as the Supplier may in the Supplier's sole discretion think fit.

• The Supplier remains the owner of all goods supplied by the Supplier to the Customer prior to or subsequent to this agreement until payment is made in full to the Supplier.
• Risk in the goods passes to the Customer on delivery to the Customer or the Customers agent and the Customer shall keep the goods comprehensively insured from that point. Delivery of goods to a carrier, either named by the Customer of failing such naming to a carrier at the discretion of the Supplier for the purpose of transmission to the Customer, is deemed delivery of the goods to the Customer.
• The Supplier may issue proceedings to recover the price of the goods sold notwithstanding that title may not have passed to the Customer.
• The Customer hereby disclaims any right to rescind, or cancel any contract with the Supplier or to sue for damages or to claim restitution arising out of any representation made to the Customer by any servant or agent of the Supplier and the Customer acknowledges that the Customer buys the goods relying solely upon the Customer’s own skill and judgment and that the Supplier shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the manufacturer of the goods (as provided for in clause 3) which warranty shall be personal to the Customer and shall not be transferable to any subsequent purchaser.
• These Terms of Trade and the completed Trading Account Application together with:

• any Order Form(s) accepted by the Supplier; and/or
• any relevant quotation by the Supplier and associated confirmation of quotation

constitute the entire agreement between the parties.

2.     Installation

(a)   The Customer shall provide all buildings, facilities, electrical supplies, water supplies, utilities, toilets and materials which the Supplier has not agreed to supply but are reasonably necessary to install the goods as agreed between the Customer and Supplier.

(b)   The Customer shall obtain any consents, licenses, permits and other approvals required to install and operate the goods as desired by the Customer except for those that the Supplier specifically agrees to obtain.

(c)   If the Supplier does provide and/or obtain any of the things referred to in clauses 2 (a) and/or (b) above then the Customer shall pay the costs of such things together with a reasonable mark up to compensate the Supplier for the time, effort and skill required to supply them.

(d)   The Customer acknowledges that where the Supplier is responsible for installation of the goods then the Supplier will require unhindered access to the site where the goods are to be installed and that failure to allow permit such access and/or to comply with the provisions of clause 2(a) and/or (b) may cause delay in installation of the goods.

(e)   The Customer shall at its cost keep the buildings and/or site where the goods are to be installed and all equipment, facilities and materials associated with the buildings and/or the site where the goods are to be installed insured against all usual risks and shall also at its cost hold and maintain public liability and contractors risk insurance in respect of the building, the site and/or any work being carried out thereon.  Such insurances shall be at the level that a reasonably prudent person in the Customers position would have them and shall cover loss or damage due to the act or omission of the Supplier, its directors, agents, contractors and employees.

3.     Warranty and Consumer Guarantees Act 1993

• The Customer agrees and acknowledges that all supplies of goods and services from the Supplier are/will be acquired for the Customer’s business purposes and accordingly the provisions of the Consumer Guarantees Act 1993 will not apply as between the Customer and the Supplier.
• Equipment of the Supplier’s own design and manufacture is warranted free of defective workmanship and/or materials for a period of one year from the later of the date of delivery and the date of installation (where installation is by the Supplier). This warranty does not cover normal wear and tear, faults due to misuse or failure to maintain (which include failure to comply with the Suppliers recommended operating procedures and/or maintenance/service programme), accident or accidental breakage or act of God. This warranty extends only to repair or replacement of defective goods. In addition, the warranty does not cover any travel or freight costs and these are payable by the Customer.
• The Supplier warrants that all installations and servicing will be performed using the degree of skill and care customarily required in accordance with good professional and technical practices. The Supplier shall re-perform any installations and/or servicing that do not meet the required degree of skill and care provided that the Customer notifies the Supplier in writing of the alleged deficiency within one month of completion of the relevant installation and/or servicing and this shall be the limit of the Supplier’s liability in respect of such installations and/or servicing.  The Supplier shall not be liable for any deficiencies in any installations and/or servicing caused by design parameters stipulated by anyone other than the Supplier, information supplied by the Customer and/or by anyone under the Customers control or contract and/or work performed by anyone not under the Suppliers direct control.
• No warranty is expressed or implied for second hand products or parts supplied by the Supplier. Under no circumstances shall the Supplier be liable for any loss or damage arising from use of such products either on a stand alone basis or in conjunction with other products.
• The warranties set out above are to be read in conjunction with any “warranty card”, manual or notice supplied with the goods. If there are any inconsistencies between the warranties then the warranty contained in any “warranty card”, manual or notice supplied with the goods then that “warranty card”, manual or notice shall prevail.
• For goods not manufactured by the Supplier the warranty shall be the current warranty provided by the manufacturer of the goods. The Supplier shall be under no liability whatsoever except for the express conditions conferring liability on the Supplier as detailed and stipulated in the manufacturers warranty.
• Notwithstanding anything in clauses 2(b) to (f) above the Supplier shall have no liability whatsoever for any malfunction, loss, damage, cost or expense caused to goods supplied by the Supplier by anyone other than the Supplier installing, repairing, maintaining or servicing those goods.
• All warranties expressed or implied are conditional on payments for goods being completed as agreed.
• For the avoidance of doubt the warranties do not cover damage or malfunction caused by any fault in any power supply or damage by electrical spikes, powers surges or lightening. The Customer is responsible for taking insurance cover for such risks and/or implementing risk management precautions, such as installation of spike protection and/or back up power supplies.  The warranties do not cover damage, malfunction or non operation, or the cost of travelling to the farm caused by the actions of untrained operators and/or new staff.
• The Customers attention is drawn to the limitation of liability provisions in clause 9 of these Terms of Trade. The warranties set out above and any other warranties agreed or implied are subject to the limitations in clause 9.

4. Privacy

The Customer noting the requirements under the Privacy Act 1993 authorises and directs that the Supplier can, in addition to the matters set out in the Trading Account Application, seek and obtain from and supply any information concerning the credit or business standing of the Customer to any other person whether trader, merchant, firm, organisation, company or any agency or source whatever including any credit agency or association or the like and directs any such person to supply and receive and record such information to and from the Supplier.

5.     Personal Property Securities Act 1999 (“the Act”)

• The Customer grants a security interest (as that terms is defined in the Act) to the Supplier over all goods presently or in the future supplied to the Customer by the Supplier including the proceeds of sale of all goods supplied until the purchase price of each good and all amounts owing to the Supplier are paid in full.
• On the request of the Supplier the Customer shall promptly execute any documents and do anything else required by the Supplier to ensure the security interest created under these conditions constitutes a perfect security interest (as that term is defined in the Act) over the goods supplied to the Customer by the Supplier, including:

(i)    Executing any amendment to these conditions as reasonable required by the Supplier;

(ii)   Executing any replacement or additional security document(s); and

(iii)  Providing any information to the Supplier to enable it to complete a Financing Statement or a Financing Change Statement.

• The Customer shall not agree to allow any person to file a Financing Statement over any of the goods supplied pursuant to these conditions without the prior written consent of the Supplier and the Customer shall notify the Supplier immediately if it becomes aware of any person taking any step to file a Financing Statement against any goods which are supplied pursuant to these conditions.
• The Customer irrevocably appoints the Supplier to be the Customer’s attorney to do anything which the Customer agrees to do under these Terms of Trade and anything which the attorney thinks desirable to protect the Supplier’s interest under these Terms of Trade and ratifies anything done by the attorney under this clause.
• The Customer waives the right to receive a copy of the verification statement confirming registration of a Financing Statement or a Financing Change Statement to the security interest created by these Terms of Trade.
• The Customer agrees that sections 114(1)(a), 133 and 134 of the Act shall not apply to these Terms of Trade or the security under these Terms of Trade.
• The Customer agrees that none of the Customers rights as a debtor under section 11, 119, 120(2), 121, 125, 126, 127, 129, 131, and 132 shall apply to these Terms of Trade.

6. Non Waiver

If the Supplier fails to enforce any terms or to exercise its rights under these terms of trade at any time the Supplier has not waived those rights.

7. Severability

If any provision of these Terms of Trade is held to be invalid or unenforceable for any reason, the remaining provisions shall remain in full force and effect and the parties shall adjust their respective rights and obligations in accordance with the spirit and intent of the parties as shown by these Terms of Trade.

8. Intellectual property

(a)   Where the Supplier has designed or drawn goods for the Customer, then the copyright in those designs and drawings shall remain vested in the Supplier and shall only be used by the Customer at the Supplier’s discretion.

(b)   Where any designs or specifications have been supplied by the Customer for manufacture by or to the order of the Supplier then the Customer warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the goods shall not infringe the rights of any third party.

9. Suppliers liability limited

(a)   Under no circumstances whatsoever is the Supplier liable for any loss, damage, wastage, damage to other goods, loss of profits or any consequential or indirect loss whatsoever including that occasioned through stoppage or failure of or any defect in any goods, machinery or equipment or through any other cause whatsoever.

(b)   In the event of any dispute arising out of this agreement by the Supplier the remedies of the Customer shall be limited to damages and/or compliance with clause 3 of these Terms of Trade. Under no circumstances shall the liability of the Supplier exceed the price of the goods.

10. Governing law

The law of New Zealand including the Sale of Goods Act 1908 and its amendments shall apply to this agreement except to the extent expressly negatived or varied by these Terms of Trade.

11.  Personal Guarantee

• If the Customer is a Company, the director(s) signing this contract also signs this contract in their personal capacity in consideration of the Supplier agreeing to supply goods and/or services and grant credit to the Customer at the directors request, and personally undertakes (and if more than one director signs this contract then the directors jointly and severally) as principal debtor(s) to the Supplier the payment of any and all monies now or hereafter owed by the Customer to the Supplier and indemnify the Supplier against non-payment by the Customer. Personal liability of a signatory hereto shall not exclude the Customer in any way whatsoever from the liabilities and obligations contained in this agreement.
• The Guarantor(s) acknowledge(s) that either they took independent legal advice before signing or if independent legal advice has not been taken confirm that they have signed this guarantee based on their own judgement and waive any right that they might have otherwise have arising out of failure to obtain such advice.

WARNING ADDRESSED TO GUARANTORS

1. By signing the Trading Account Application as a Director you may become liable to the Supplier as a principal debtor in respect of the liability of the Customer to the Supplier.
2. You should obtain legal advice before the giving of the guarantee.