Business Day means a day, between 8.30 am and 5.00 pm, that is not a Saturday, Sunday, bank holiday or a public holiday in Auckland.
Purchaser means any purchaser of Goods or services from the Company.
Company means The Pure Water Project Limited.
Event of Default means any of the following occurs without the written consent of the Company:
(a) The Purchaser fails to comply with these Terms;
(b) The Purchaser is subject to any event which is in the nature of dissolution, winding up, bankruptcy, liquidation, insolvency or receivership, or which generally precedes such an event;
(c) An event occurs or information becomes known to the Company, which in the Company's opinion, might materially affect the Purchaser's creditworthiness, the value of the Goods, or the Purchaser's ability or willingness to comply with its obligations under these Terms; and/or
(d) Anything the Purchaser has told or tells the Company or any information the Purchaser has given or gives the Company, or which is given to the Company on behalf of the Purchaser, is untrue, misleading or deceptive in a material respect.
Goods means all water treatment equipment or services supplied or to be supplied by the Company to the Purchaser from time to time, including the products, merchandise, or services described or referred to (whether by item,product category, brand, kind or otherwise) in the delivery docket, invoice or like equivalent document supplied by the Company).
PPSA means the Personal Property Securities Act 1999.
2 CREDIT APPLICATION
2.1 The Purchaser authorises the Company to make such enquiries from third-parties as to the credit worthiness of the Purchaser as may be required by the Company from time to time.
2.2 The Purchaser authorises the Company to collect, retain and use any information about the Purchaser, and divulge it to third parties for debt collection and trade references
2.3 The Company can require that the Purchaser's directors to provide a personal guarantee.
3 QUOTES, ORDERS AND ACCOUNTS
3.1 Unless otherwise stated, all quotes will be open for acceptance by the Purchaser for the period stated in the quote or otherwise fora period of thirty (30) days from the date of the quote on the condition that the Purchaser’s credit application is approved by the Company. In the event that the Purchaser’s credit application has not been approved, the Purchaser shall pay the full amount in the quote to the Company seven calendar (7) days prior to the Company providing any Goods. Any quote given by the Company to the Purchaser may be withdrawn by the Company at any time prior to acceptance by the Purchaser.
3.2 Each order shall constitute an offer by the Purchaser to purchase the Goods from the Company. Upon the Company accepting the order, the Purchaser agrees to purchase the total quantities of Goods (i.e. the Purchaser cannot cancel the order) subject to these Terms, and any other terms and condition agreed in writing between the parties.
3.3 'The Company will use its reasonable endeavours to source all Goods ordered by the Purchaser. The Purchaser acknowledges that placing an order and the Company's acceptance of the order, does not guarantee the supply of the Goods.
3.4 The Company may close or suspend the Purchaser's account at any time. On the closure of the Purchaser's account:
(a) all the Purchaser's rights under these Terms terminate, except for any rights that have accrued prior to the closure of the account; and
(b) all the Purchaser's obligations to the Company continue under these Terms until all have been satisfied in full to the Company's satisfaction.
4 TERMS OF PAYMENT
4.1 The Company shall sell the Goods to the Purchaser for the price (plus GST) as set out in the quote, delivery docket, invoice or like equivalent document supplied by the Company ("the Purchase Price").Any costs of delivery may be charged additionally to the Purchaser.
4.2 The Company reserves the right to require the Purchaser to pay a deposit. Any such deposit will be deducted from the final payment of the Purchase Price.
4.3 The Purchaser shall make payment of the Purchase Price n full (without any deduction, retention, set-off or counterclaim) on the date agreed in writing between the parties.
4.4 Payment made by the Purchaser will first be offset against any outstanding interest, expenses and against the longest outstanding invoice, regardless of any claims made by the Purchaser that payment is in settlement of a latter invoice.
4.5 The Company reserves the right to charge the Purchaser compound interest on any monies unpaid for five (5) Business Days after the due date at the rate of 2% per month or part thereof.
4.6 If the Purchaser owes the Company any money the Purchaser shall indemnify the Company from and against all costs and disbursements incurred by the Company (including but not limited to internal administration fees, legal costs on a solicitor and own Purchaser basis, the Company's collection agency costs and bank dishonour fees) in recovery or attempted recovery of any monies owed by the Purchaser to the Company.
4.7 To better secure the amounts payable to the Company,whether in relation these Terms or on any other account, the Purchaser agrees,upon request by the Company, to grant the Company a registerable mortgage over any land owned by the Purchaser and/or its' directors from time to time. Such mortgage is to be in the form of the then current Auckland District Law Society all obligations mortgage. The Company may request a mortgage under this clause if an Event of Default occurs. The Purchaser indemnifies the Company from and against all the Purchasers' costs and disbursements, including legal costs on a solicitor and own Purchaser basis incurred in exercising the Company's rights under this clause.
5 TITLE, RISK AND DELIVERY
5.1 The Purchaser must take delivery of the Goods, either by receipt or collection, whenever they are tendered for delivery. In the event that the Purchaser is unable to take delivery of the Goods as arranged then the Company reserves the right to charge a reasonable fee for redelivery and/or storage.
5.2 The Company shall be in no way liable for any delay in the date of delivery of any Goods. Where the Purchaser does not take delivery of the Goods by the delivery date specified, the Purchaser shall pay reasonable storage costs until such time as the Purchaser accepts the Goods.
5.3 If the Company cannot provide the agreed quantity of Goods for any reason outside its reasonable control, the Company is not liable for that shortfall, and the Purchaser must take delivery of and pay for such lesser quantity as the Company is able to supply.
5.4 Risk in the Goods shall pass when the Goods are uplifted by the Purchaser or the Purchaser's agent or when the Goods are delivered to the Purchaser's premises.
5.5 Notwithstanding clause 5.4,the Purchaser shall be liable to the Company for the full replacement value or any damaged, destroyed lost and/or stolen Goods following delivery or uplift but prior to ownership passing to the Purchaser. The Company is entitled to receive all insurance proceeds payable for the Goods. The production of these Terms by the Company is sufficient evidence of the Company's rights to receive the insurance proceeds without the need for any person dealing with the Company to make further enquiries.
5.6 Notwithstanding clause 5.3, the ownership of the Goods shall not pass to the Purchaser but shall remain with the Company, until payment in full for all the Good has been received by the Company in accordance with these Terms (even if the Purchaser incorporates the Goods with other items).
5.7 Until the title in the Goods passes to the Purchaser:
(a) the Purchaser shall hold the Goods on trust as bailee of the Company and must return the Goods to the Company on request;
(b) the Company or the Company's agent may repossess the Goods and dispose of them for the Company's own benefit. For that purpose, the Company or the Company may at any time without notice enter any place where it believes the Goods may be kept and take whatever action may be required to repossess the Goods. The Purchaser indemnifies the Company and the Company for all costs and liabilities in connection with the repossession,storage and/or resale of the Goods (including any shortfall arising from resale at a lower price);
(c) The Purchaser must store the Goods in a manner which will protect them from damage or deterioration;
(d) The Purchaser must store the Goods separately from the other goods in the Purchaser's possession and clearly distinguish and identify the Goods as the Company's property; and
(e) The Purchaser should not convert or process the Goods or intermix them with other goods, but if the Purchaser does so, then the Purchaser holds the resulting product on trust for the benefit of the Company and must sell, dispose of or return the resulting product to the Company as it so directs.
5.8 The Company may commence proceedings to recover the price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Purchaser.
5.9 The Company authorises the Purchaser, in the ordinary course of the Purchaser's business, to use the Goods or sell them for full consideration. This authority is revoked immediately if:
(a) An Event of Default occurs; or
(b) The Company notifies the Purchaser in writing that this authority is revoked.
5.10 If the Purchaser sells or uses any Goods before payment of the amount owing in full, the proceeds of such sale or use (in whatever form) shall be the property of the Company, and the Purchaser must pay all such proceeds to the Company or otherwise deal with such proceeds as the Company directs. Nothing in this Clause 5.5 shall be construed as authorising any dealing by the Purchaser with the Goods, otherwise than as expressly permitted by the Company. The Company may sue for the purchase price even where ownership of the Goods has not passed to the Purchaser.
6.1 The Purchaser shall be responsible for the inspection of the Goods and prompt notification to the Company of any damage or short supply. Goods will be deemed to have been delivered complete and in good condition if the Purchaser does not notify the Company within three (3)Business Days of the date of delivery or uplift.
6.2 The Purchaser shall afford the Company an opportunity to inspect the Goods within a reasonable time following delivery if the Purchaser believes the Goods are damaged and/or defective in any way. If the Purchaser shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage.
6.3 If the Purchaser considers that there are defective Goods, the Purchaser must allow a reasonable time the Company to remedy the defect.
6.4 If the Company (and not any vendor, manufacturer or other person) is responsible for any Goods being defective or not materially conforming to the Company's description, the Company will at its option:
(a) repair or replace the defective Goods or re-perform the service; or
(b) pay compensation not exceeding the purchase price for the Goods.
This is the Purchaser's sole right for compensation from the Company and the Company.
7 EVENTS OF DEFAULT
7.1 If an Event of Default occurs, and without prejudice to any other rights, powers or remedies, the Company may have:
(a) The Company may suspend or terminate the supply of Goods to the Purchaser and any of its other obligations under these Terms;
(b) All amounts owing shall immediately become due and payable, notwithstanding that the due date for payment has not otherwise arisen; and
(c) The Company may (without the consent of the Purchaser) appoint a receiver in respect of any Goods, and any receiver is authorised to do anything referred to in these Terms and otherwise to exercise all rights and powers conferred on a receiver by law.
7.2 The Company and the Company will not be liable to the Purchaser for any loss or damage the Purchaser suffers because the Company exercises any rights, powers or remedies after the occurrence of an Event of Default, including under this clause.
7.3 The Purchaser agrees that,at any time after an Event of Default has occurred or at any time if any Good sare at risk, the Company may:
(a) Take possession of any Goods; and / or
(b) Sell or dispose of any Goods in such a manner and generally on such terms and conditions as it thinks fit, and in each case,otherwise do anything the Purchaser could do in relation to those Goods. As the Purchaser's agent, the Company and the Company may, without prior notice, enter any land or premises where the Company believes the Goods are kept in order to take possession of and/or remove them,and the Purchaser agrees to procure all other rights (including consents)necessary to enable, and to indemnify the Company and the Company against any liability incurred in connection with, such entry, taking the possession and removal.
7.4 The rights, powers and remedies provided for in these Terms are in addition to, and do not limit or exclude (or otherwise adversely affect), any right, power or remedy provided to the Company and the Company bylaw.
8 SECURITY INTEREST
8.1 The Purchaser acknowledges and agrees that:
(a) these Terms constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Goods previously supplied by the Company to the Purchaser (if any) and all Goods that will be supplied in the future by the Company to the Purchaser.
8.2 The Purchaser 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 Company 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 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;
(c) not register a financing change statement or a change demand without the prior written consent of the Company; and
(d) 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.
8.3 The Company and the Purchaser agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.The Purchaser waives its rights as a debtor under sections 116, 120(2), 121,125, 126, 127, 129, 131 and 132 of the PPSA.
8.4 Unless otherwise agreed to in writing by the Company,the Purchaser waives its right to receive a verification statement in accordance with section 148 of the PPSA.
8.5 The Purchaser shall unconditionally ratify any actions taken by the Company under clauses 8.1 to 8.4.
8.6 For the avoidance of doubt, nothing in these Terms shall have the effect of contracting out of any provision of the Credit(Repossession) Act 1997.
9 SUPPLY FOR BUSINESS PURPOSES
9.1 The Purchaser agrees that where Goods are acquired for the purposes of a trade or business,the Consumer Guarantees Act 1993 will not apply.
10.1 The Purchaser acknowledges that the Company is the collector and holder of information provided by the Purchaser ("the Purchaser's Information").All parties will keep completely confidential all information regarding the customers, business strategies, business affairs, accounts,finance or contractual arrangements of the others.
11.1 All statutory and other implied warranties (other than the title to the Goods) are excluded to the extent lawful.
11.2 Other than as required by law, the Company and the Company give no representation or warranty concerning any Goods' condition, quality or fitness for any purpose.
11.3 Except as set out in this clause 11, the Company and the Company shall not be liable in any way (including negligence, tort and equity) to the Purchaser or any other person in connection with Goods supplied or not supplied or the purported exercise of the Company's and/or the Company's rights under these Terms.
11.4 Not withstanding anything in these Terms, the Company will never be liable in connection with any Goods supplied or not supplied or the purported exercise of the Company's and/or the Company's rights under these Terms for any:
(a) loss of income, profits, savings or goodwill or for any indirect or consequential loss or special or exemplary damages;
(b) amount exceeding the purchase price paid for those Goods; or
(c) amount not claimed within 5 Business Days of the liability arising.
12 PURCHASER'S LIABILITY
12.1 The Purchaser indemnifies the Company and the Company from and against any liabilities, losses, damages, costs (including legal costs) or claims which the Company incurs under these Terms except if the Company or the Company is fraudulent or negligent.
13 LIMITATION OF LIABILITY
13.1 To the maximum extent permitted bylaw, the Company excludes all statutory or implied warranties, rights, remedies and liability to Purchaser for breach of contract, negligence or breach of any other Law.
13.2 The Goods, for any liability which cannot lawfully be excluded, but can be limited by law, the Company's liability is limited, at its option, to the re-supply of such Goods or the cost of the Goods.
13.3 To the maximum extent permitted bylaw, the Company's aggregate liability to Purchaser on any basis and in any circumstances (including liability for breach of contract, negligence or breach of any other applicable law) will not, in any event, exceed the amount paid by Purchaser under the order.
14.1 Assignment: The Purchaser may not transfer any right or benefit under these Terms. The Company may transfer its rights and obligations under these Terms by notifying the Purchaser in writing.
14.2 Enforcement:The Purchaser will pay the Company and the Company on demand all costs (including legal costs on a solicitor/client basis)incurred by the Company and the Company) in connection with any default by the Purchaser or enforcement action taken by the Company or the Company.
14.3 Entire agreement: These Terms (and any incorporated document, including any order confirmation) are the entire agreement between the Company, the Company and the Purchaser, and supersede all representations, agreements and other communications made by the Company or the Company.
14.4 No waiver: The Company and the Company shall not be deemed to have waived any right to do anything unless the waiver is in writing and signed by an authorised manager of the Company or the Company.
14.5 Severability: If any part of these Terms is illegal, unenforceable or invalid, that part is to be treated as modified or removed to the extent required to make it effective. The rest of these Terms are not affected.
14.6 Variation:The Company may in its absolute discretion change these Terms at any time by sending notice of the change to the Purchaser or by publication on the website www.agrifeeds.co.nz/index.php?act=legal. The change will take effect from the earlier of, the time specified in any notice to the Purchaser, or the time the new terms are available on the website.
14.7 Typographical errors: The Company and the Company reserve the right to correct any typographical or clerical errors in any prices quoted or contained in an order or quotation.
14.8 Disputes:Any dispute between the Company and the Purchaser will be discussed between them in the spirit of goodwill.
14.9 Governing Law: New Zealand law governs this agreement, and the parties submit to the exclusive jurisdiction of the New Zealand courts.
Force Majeure: Notwithstanding any other provision of these Terms, neither party will be liable for any failure or delay in complying with any obligation imposed on that party under these Terms if the failure or delay arises from, or relates to, a Force Majeure Event. For the purposes of these Terms, Force Majeure a circumstance beyond the reasonable control of the parties such war, natural or local emergency, pandemic, anything done by government or other competent authority or industrial disputes of any kind.
14.10 Contra Proferentem Rule: Unless otherwise expressly defined in these Terms, the words used in these Terms bear their natural meaning. The Parties have had equal opportunity to take legal advice and the contra proferentem rule does not apply to the interpretation of this Agreement.