Terms of trade
“Agreement” means the these Terms and, where applicable, any written sale contract between the Customer and Wholesale Seeds.
“Credit Agency” means Baycorp (NZ) Limited or any third party credit agency notified by Wholesale Seeds to the Customer.
“Customer” means the purchaser of Goods from Wholesale Seeds.
“Goods” means all goods and services supplied by Wholesale Seeds to the Customer from time to time.
“GST” means goods and services tax pursuant to the Goods and Services Tax Act 1985 (as amended or replaced).
“Person” includes a body corporate and vice versa.
“PPSA” means the Personal Property Securities Act 1999.
“Terms” means these Terms and Conditions as replaced or amended from time to time as advised by Wholesale Seeds.
“Wholesale Seeds” means Wholesale Seeds Limited and its successors and assigns.
2. Application of Terms
- 2.1 These Terms apply to the supply of all Goods by Wholesale Seeds. By requesting Wholesale Seeds to supply Goods to the Customer, the Customer acknowledges and agrees to these Terms.
- 3.1 The price for the Goods will be either as quoted to the Customer in writing or, if no written quote is provided, at Wholesale Seed’s standard charges applying at the time. Unless otherwise agreed in writing any quoted price may be altered prior to delivery of the Goods if Wholesale Seeds’ costs fluctuate materially.
- 3.2 Wholesale Seeds may withdraw any quotation before it is accepted, and in any event any quotation will lapse without notice 30 days after it is given.
- 3.3 Unless otherwise agreed in writing prices are given in New Zealand dollars and do not include GST.
- 4.1 Unless otherwise agreed in writing, payment for the Goods is due by the 20th day of the month following the date of invoice relating to those Goods.
- 4.2 In the event that payment is not received when due and without prejudice to any other remedies available to Wholesale Seeds, Wholesale Seeds may:
- (a) cancel or withhold the supply of further Goods; and
- (b) charge default interest on monies overdue at a rate of 18% per annum which will accrue on a daily basis and compound monthly from the due date for payment until all amounts due, including default interest, have been paid in full. All amounts received by Wholesale Seeds will be applied first in payment of default interest.
- 4.3 All costs incurred by Wholesale Seeds in recovering overdue monies (including court, solicitor and debt collection costs) are payable by the Customer.
5. Delivery and Risk
- 5.1 Unless otherwise agreed, the Customer shall be responsible for the cost of and arranging transportation of the Goods.
- 5.2 Where Wholesale Seeds has agreed to deliver the Goods to the Customer, the delivery costs will be payable by the Customer at the prevailing rate on the date the Goods are ordered. Wholesale Seeds shall use reasonable endeavours to ensure that delivery of the Goods is made according to schedule, but shall not be responsible for delivery delays due to causes beyond Wholesale Seeds’ control.
- 5.3 Risk in respect of the Goods shall pass to the Customer when the Goods are delivered to the Customer or its carrier, or at the time the Customer pays for the Goods, whichever is the earlier.
- 5.4 It is the Customer’s responsibility to insure the Goods while in transit, even if Wholesale Seeds has arranged transportation of the Goods.
- 6.1 Ownership of the Goods remains with Wholesale Seeds and does not pass to the Customer until Wholesale Seeds receives full payment of all amounts due and payable from the Customer and the Customer has satisfied all of its obligations to Wholesale Seeds. Until all amounts owing to Wholesale Seeds have been paid, the following shall apply:
- (a) the Customer will hold or deal with the Goods and any crops resulting from the Goods as a fiduciary of Wholesale Seeds and deal with it as agent and on behalf of Wholesale Seeds (but the Customer will not hold itself out to be Wholesale Seeds’ agent to any third parties);
- (b) the Customer will keep the Goods separate from other goods or otherwise ensure that the Goods and any crops resulting from the Goods are separately identified or identifiable; and
- (c) the Customer must not grant any interest or charge over the Goods to any person.
- 6.2 The Customer will not assign or purport to assign to any other person the right to receive any such proceeds held or owing to the Customer by a third party in respect of the Goods.
- 6.3 The Customer grants Wholesale Seeds (and its agents) an irrevocable licence to take any action it considers necessary at any time to protect the Goods or its security interest in the Goods (including, without limitation, taking possession of the Goods at any time without notice and entering onto the land and premises where any Goods are, regardless of whether or not an occupier is present, and repossessing the Goods) without incurring any liability to the Customer or (to the extent permitted by law) any other person. To the extent permitted by law, Wholesale Seeds will not be liable to the Customer or any third party for any loss or damage caused by its actions under this clause and the Customer indemnifies Wholesale Seeds, its servants and agents, for any alleged liability resulting from the repossession, and the Customer will pay all costs incurred by Wholesale Seeds in respect of the repossession.
- 7.1 Without limiting anything else in these Terms, the Customer grants Wholesale Seeds a security interest in all Goods supplied to the Customer by Wholesale Seeds including all proceeds of such Goods so as to secure all monies owing by the Customer to Wholesale Seeds. The Customer agrees to do all things necessary to enable Wholesale Seeds to register a financing statement on the Personal Property Securities Register (PPSR) and to ensure that the security interest is a first ranking perfected security interest over all the Goods.
- 7.2 If the Goods subsequently becomes part of some other product or mass, then nothing in these Terms shall limit the application of sections 82 to 86 of the PPSA.
- 7.3 The Customer waives its right to receive a copy of any verification statement in respect of any financing statement or financing change statement relating to the security interest.
- 7.4 The Customer agrees that nothing in sections 114(1)(a), 120(1), 122, 133 or 134 of the PPSA will apply. The Customer agrees to waive its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA to the extent that these rights may be waived under section 107(2) of the PPSA.
- 8.1 Unless otherwise agreed in writing, to the extent permitted by law, Wholesale Seeds excludes all liability to the Customer and any third party, whether in tort (including negligence), contract, equity or otherwise, for any loss or liability of any kind, whether direct, indirect, special or consequential.
- 8.2 Without limiting clause 8.1, Wholesale Seeds’ total liability for defective or damaged Goods supplied by Wholesale Seeds or otherwise arising under this Agreement is limited at Wholesale Seeds’ option to either:
- (a) replacing the Goods; or
- (b) refunding the price of the Goods.
- 9.1 The Customer may not cancel any order for Goods or part of it without Wholesale Seeds’ written consent. Wholesale Seeds may cancel an order or delivery of an order by giving written notice to the Customer if the Customer:
- (a) has failed to comply with a written notice given by Wholesale Seeds specifying a breach of the Agreement and requiring the Customer to remedy the breach within 14 days;
- (b) being an individual, is made bankrupt; or
- (c) being a company, is wound up or placed in liquidation or receivership, or where Wholesale Seeds has reasonable grounds to believe Customer is insolvent or in financial difficulty.
- 9.2 On termination Wholesale Seeds shall have the right to deal with the Goods as Wholesale Seeds wishes at its absolute discretion.
10. Consumer Guarantees Act and Fair Trading Act
- 10.1 Where any goods and/or services are supplied by Wholesale Seeds and acquired by the Customer for business purposes, the Customer and Wholesale Seeds each agree that those goods and/or are supplied and acquired in trade and therefore the Consumer Guarantees Act 1993 does not apply.
- 10.2 The parties agree that section 9, 12A, 13 and 14(1) of the Fair Trading Act do not apply to this Agreement. The Customer acknowledges that it has not relied on any representations made by Wholesale Seeds in entering into the Agreement and that this clause is fair and reasonable.
- 11.1 The Customer authorises Wholesale Seeds to collect, retain and use information about the Customer for the purpose of carrying out credit checks, deciding whether to continue to make any goods or services available to the Customer, debt collection or marketing.
- 11.2 The Customer authorises Wholesale Seeds to obtain credit reports and other information about the Customer from any third party (including the Credit Agency) for this purpose. The Customer also authorises Wholesale Seeds to provide information about the Customer (including information relating to any default in its payment obligations) to any third party (including the Credit Agency) for the purpose of that party carrying out credit checks, obtaining credit reports or debt collection. To the extent permitted by law those third parties may hold that information in their systems and use it now and in the future. The Credit Agency may also share the Customer’s information to other customers using its services.
- 11.3 The Customer may ask to see any personal information Wholesale Seeds holds about the Customer and ask for any details that are wrong to be corrected.
- 12.1 Wholesale Seeds may assign its rights and obligations under the Agreement without the Customer’s consent. The Customer may not assign any of its rights and obligations under the Agreement without Wholesale Seeds’ agreement in writing.
- (a) reference to any legislation in these Terms includes a reference to any amended or substitute legislation and any regulations enacted under that legislation.
- 12.3 This Agreement is subject to, governed by and interpreted in accordance with New Zealand law and the parties submit to the exclusive jurisdiction of the courts of New Zealand in respect of any dispute in relation to this Agreement.
- 12.4 Each clause of these Terms is separately binding. If any clause is void, unenforceable or otherwise ineffective by operation of New Zealand law the remaining clauses will continue to be valid and enforceable.
- 12.5 Where the Customer comprises more than one person or entity then the obligations between those persons under this Agreement is joint and several.
- 12.6 This Agreement may be entered into in counterparts (including electronic copies) which when taken together will constitute one agreement.