Terms of Trade

These Terms apply to all purchases of Goods or services by the Buyer from Agrifeeds (including purchases on credit).

1. Definitions

Bulk Liquid Supplements has the usual meaning given to this term by the Principal.

Buyer means the buyer as identified in the Order.

Principal means International Nutritionals Limited trading as Agrifeeds.

Default Rate means an annual interest rate equivalent to the Reserve Bank of New Zealand Official Cash Rate prevailing at the time of the occurrence of any payment default under these Terms plus a margin of 1200 basis points.

Event of Default means the occurrence of any of the following without the written consent of the Principal

a) The Buyer fails to comply with any of these Terms:

b) The Buyer is subject to any event which is in the nature of dissolution, winding up, bankruptcy, liquidation, insolvency or receivership, actual or threatened cessation of trading or a circumstance which generally precedes such an event;

c) An event occurs or information becomes known to the Principal which in its opinion might materially affect the Buyer’s creditworthiness, or the Buyer’s ability or willingness to comply with its obligations under these Terms.

d) Anything the Buyer has told or tells the Principal or any information the Buyer has given or gives the Principal or which is given to it on behalf of the Buyer, and which in the context of the Order and these Terms is untrue, misleading or deceptive in a material respect.

Goods means all products and/or services listed in the Order and/or as otherwise agreed to be supplied by the Principal to the Buyer from time to time, including the products, merchandise, or services described or referred to (whether by item, product category, brand, kind or otherwise) in any delivery docket, invoice or like equivalent document supplied by the Principal.

Order means the Sales Contract – Industrial entered into by the Buyer with the Principal

PPSA means the Personal Property Securities Act 1999.

Principal means Agrifeeds.

Terms means these terms of trade and as the context permits includes any agreements contained on the Sales Contract-Industrial page to which these terms are attached.

Interpretation of expressions:

“writing” or “written” means paper based or electronic form.

2. Application of Terms

2.1 A contract under these Terms will come into existence once:

a) The Buyer's order has been accepted by the Principal in writing. Any additional terms the Principal includes on a delivery docket or invoice will form part of the contract for those Goods but will be subject to clause 2.7.

b) The Buyer cannot cancel an order for Goods after the Principal accepts it.

2.2 The Principal will use its reasonable endeavours to source all Goods ordered by the Buyer. The Buyer acknowledges that placing an order and its acceptance under clause 2.1 does not guarantee supply of the Goods.

2.3 The Principal may impose a credit limit on the Buyer and alter or withdraw that credit limit without prior notice. The Principal can require that the Buyer:

a) provide a personal guarantee in respect of the Buyer’s obligations to the Principal; and/or

b) provide a bond or other surety, in an amount the Principal specifies up to the value of all current and committed future orders to better secure the Buyer’s obligations to the Principal.
Any such guarantee, bond or other surety must be in such form and content and from a party(s) as the Principal reasonably approves.

2.4 The Principal may close or suspend the Buyer’s account at any time. On such closure or suspension of the Buyer’s account:

(a) all the Buyer’s rights under these Terms terminate, except for any rights other than rights to credit that have accrued prior to the closure of the account; and

(b) all the Buyer’s obligations to the Principal continue under these Terms until all have been satisfied in full to the Principal’s satisfaction.

(c) All the Principal’s rights continue until they have been fully discharged by the Buyer by performance in accordance with these Terms.

2.5 The person signing as Buyer in the Order warrants that he or she has the authority to enter into the Order on behalf of the Buyer and to commit the Buyer to the purchase of the Goods and indemnifies the Principal against the consequences of this warranty not being true and correct.

3. Terms of payment

3.1 Unless the Principal specifies otherwise, the purchase price for any Goods and any associated charges, plus GST, must be paid by the Buyer to the Principal (subject to clause 3.3) by the 20th day of the month following the month of purchase, or such other period agreed between the Principal and the Buyer.

3.2 Interest on overdue payments will be charged on a daily basis at the Default Rate from date of due payment until payment is received in full for such payment together with payment of all outstanding interest applicable to such payment default and recoverable costs and expenses of the Principal.

3.3 All amounts payable to the Principal will be paid to the Principal in full in immediately available funds without any set-off, deduction or counterclaim.

3.4 The Buyer acknowledges that it must only pay for the Goods direct to the Principal and not through any third party.

4. Title, risk and delivery

4.1 All Goods are at the Buyer’s risk from the point of being made available for uplifting by the Buyer or upon delivery to the Buyer’s designated delivery point.

4.2 Ownership of and title to all Goods will remain with the Principal and not pass to the Buyer until the Principal has been paid for in full (even if the Buyer incorporates the Goods with other items, including (without limitation) those items described in the definition of Goods in clause 1).

4.3 Until title passes to the Buyer:

(a) the Buyer will hold the Goods as bailee of the Principal; and

(b) subject to s109 of the PPSA, the Principal may repossess the Goods and dispose of them for its own benefit. For that purpose the Principal may at any time without notice enter any place where it believes the Goods may be kept and take whatever action may be legally required to repossess the Goods. The Buyer indemnifies the Principal 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 Buyer must store the Goods in a manner which will protect them from damage or deterioration.

(i) The Buyer must store the Goods separately from the Buyer’s own goods or otherwise ensure that the Goods are separately identified or identifiable. The Principal authorises the Buyer, in the ordinary course of the Buyer’s business, to use the Goods or sell them for full consideration. This authority is revoked immediately if:

(j) An Event of Default occurs; or

(ii) The Principal notifies the Buyer in writing that this authority is revoked.

4.4 The Principal will not be in any way liable for any delay in the date of delivery of any Goods. Where the Buyer does not take delivery of the Goods by the delivery date specified, the Buyer will pay reasonable storage costs until such time as the Buyer accepts the Goods.

4.5 If the Buyer sells or uses any Goods before payment of the amount owing in full, the proceeds of such sale or use (in whatever form) will be the property of the Principal and the Buyer must pay all such proceeds to the Principal or otherwise deal with such proceeds as trustee for and as the Principal directs. Nothing in this Clause 5.5 will be construed as authorising any dealing by the Buyer with the Goods, otherwise than as expressly permitted by the Principal. The Principal may sue for the purchase price even where ownership of the Goods has not passed to the Buyer.

4.6 If the Goods subsequently become part of some other product or mass, then nothing in these Terms will be construed as limiting the application of sections 82 to 86 (inclusive) of the PPSA.

4.7 Damage or loss in transit must be reported to the Principal within 7 days of the Buyer receiving the Goods.

5. Personal Property Securities Act 1999

5.1 The Buyer grants to the Principal a security interest in all Goods (and all proceeds) to secure all payments under these Terms and all moneys owing by the Buyer to the Principal from time to time. The Buyer will do all things necessary for the Principal to register a financing statement and to ensure the security interest is a perfected purchase money security interest over the Goods and any proceeds. The Principal may at its sole discretion register a security interest in its name as secured party even where it may be acting as agent for a third party. If the Goods subsequently become part of some other product or mass, then nothing in these Terms can be construed as limiting the application of sections 82 to 86 of the PPSA.

5.2 The Buyer waives its right under section 148 of the PPSA to be given a copy of any verification statement in relation to any financing statement or financing change statement that the Principal may register.

5.3 The security interest granted by the Buyer to the Principal to the applicable extent takes effect as a transfer of any accounts receivable or chattel paper, which are the proceeds of the Goods.

5.4 The Principal may use the benefit of any security interest, security agreement, encumbrance, charge or mortgage given by the Buyer or any guarantor or other grantor of surety to secure payment and performance of the Buyer’s obligations under these Terms. With the exception of security granted in favour of the Principal, the Buyer will not without the Principal’s prior written consent grant any lien or security interest over the Goods to any other party whatsoever nor commit any act or omission that would give any other party a security interest over those Goods until all such Goods are paid for in full.

6. Events of Default

6.1 If an Event of Default occurs, and without prejudice to any other rights, powers or remedies, the Principal may have:

a) The Principal may suspend or terminate the supply of Goods to the Buyer and any of its other obligations under these Terms;

b) All amounts owing will immediately become due and payable, notwithstanding that the due date for payment has not otherwise arisen;

c) The Principal may enforce any security interest granted to it by the Buyer; and

d) The Principal may (without the consent of the Buyer) appoint a receiver in respect of all or any Goods and any receiver is authorised to do anything referred to in these Terms and otherwise to exercise all usual and customary rights and powers conferred on a receiver by law.

The Principal will not be liable to the Buyer for any loss or damage the Buyer suffers because the Principal exercises or purports to exercise any rights, powers or remedies after the occurrence of an Event of Default, including under this clause.

6.2 The Buyer agrees that, at any time after an Event of Default has occurred or at any time if any Goods are at material risk, the Principal may take possession of any Goods and / or generally exercise all or any of its rights under these Terms and/or at law.

6.3 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 Principal by law.

7. Supply for business purposes

7.1 The Buyer agrees that where Goods are acquired for the purposes of a business the Consumer Guarantees Act 1993 does not apply.

8. Privacy

8.1 The Buyer acknowledges that the Principal is the collector and holder of information provided by the Buyer (the Buyer’s Information).

8.2 The Principal may use and disclose the Buyer’s Information and any other information collected by the Principal about the Buyer for any purpose relating to:

(a) the business relationship between the Principal and the Buyer including the performance of these Terms;

(b) the provision of credit by the Principal to the Buyer including the administration and management of the Buyer’s accounts with the Principal;

(c) market research conducted by or on behalf of the Principal and

(d) direct marketing and the offering to the Buyer of additional credit facilities or the Goods of the Principal

8.3 Within the authorisations set out in clause 9.2 and subject to necessary enforcement both parties will keep completely confidential all information regarding the customers, business strategies, business affairs, accounts, finance or contractual arrangements of the other.

9. Buyer’s right to compensation and waiver of rights

9.1 Subject to clause 11, if the Principal (and not any vendor, manufacturer or other person) is responsible for any Goods being defective or not materially conforming to the Principal’s description, the Principal will at its option:

(a) repair or replace the defective Goods or re-perform the service; or

(b) pay compensation but in all circumstances not exceeding the purchase price for the Goods in question.

9.2 The Buyer’s sole right of recompense under any head of recovery is the repair, replacement or limited compensation as above from the Principal to the exclusion of all other rights and remedies.

9.3 Subject to clauses 10.1 and 10.2 the Buyer waives and releases the Principal to the fullest extent permitted by law from all and any liability (including but not limited to negligence, tort and/or equity) arising out of or in connection with the sale and purchase of the Goods sought to be regulated by these Terms.

10. Warranties and the Seller’s liability

10.1 All statutory and other implied warranties (other than title to the Goods) are excluded to the fullest extent permitted as law.

10.2 Other than as required by law, the Principal does not give any representation or warranty concerning any Goods’ condition, quality or fitness for any purpose.

10.3 Except as set out in clause 10 and this clause 11, The Principal will not be liable in any way (including but not limited to negligence, tort and/or equity) to the Buyer or any other person(s) in connection with Goods supplied or not supplied or the exercise or purported exercise of the Principal’s rights under these Terms.

10.4 Notwithstanding anything in these Terms, the Principal will never be liable in connection with any Goods supplied or not supplied or the exercise or purported exercise of the Principal’s rights under these Terms for any:

(a) loss of income, profits, savings or goodwill or for any other indirect and/or consequential loss and/or special or exemplary damages;

(b) amount exceeding the purchase price paid for the Goods in question; or

(c) amount not claimed within 21 days of the liability arising.

10.5 If the Principal cannot provide the agreed quantity of Goods for any reason outside its reasonable control, the Order is deemed to be amended accordingly and the Principal is not liable for that shortfall and the Buyer must take delivery of and pay for such lesser quantity as the Principal is able to supply.

11. Authority to transfer moneys

11.1 The Buyer authorises the Principal to apply (without prior notice) any moneys:

(a) held by the Principal or any of its agents for or on behalf of the Buyer on any account in or towards payment of any amount owing to the Principal; or

(b) received by the Principal from or on account of the Buyer in payment of any amount owing to the Principal.

11.2 Without limiting clause 12.1, the Principal may at any time (including when amounts are owing in respect of more than one transaction) apply or appropriate any moneys received from the Buyer in any manner (and in any order and to any amounts owing to the Principal) as the Principal thinks fit (despite any direction to the contrary and whether before or after any default by the Buyer).

12. Buyer’s Liability

12.1 The Buyer is deemed to be bound by all transactions undertaken with the Principal whether or not any person undertaking a transaction has actual or ostensible authority to do so. This Clause 13.1 does not apply if the Buyer has notified the Principal in writing that only named persons may undertake transactions for the Buyer.

12.2 If the Buyer includes two or more persons, those persons’ liability is joint and several.

12.3 For the avoidance of doubt, nothing in these Terms will have the effect of contracting out of any provision of the Credit (Repossession) Act 1997.

12.4 The Buyer indemnifies the Principal from and against any liabilities, losses, damages, costs (including solicitor client legal costs) or claims which the Principal incurs under these Terms except if and to the extent that the Principal as applicable is fraudulent or negligent.

13. Forward Commitment to Purchase

13.1 The Buyer agrees to purchase the “quantity” of Goods at the contract price set out in this Order. The monthly “Volumes Required” specified in the Order are binding monthly volumes that the Buyer agrees to purchase and are not estimates.

13.2 The Principal will use all reasonable endeavours to supply the Goods to the Buyer in the “shipment period” specified in the Order. The Buyer may request the Principal to delay the supply of the Goods if such a request is made to the Principal at least 7 days prior to the date for final delivery. The Principal may at its discretion grant such an extension but will be entitled to charge the Buyer any additional costs that the Principal (directly or indirectly) as a result of that delay including (but not limited to) storage costs and forgone interest on the contract price.

13.3 In the event that the Buyer does not accept delivery (for any reason whatsoever) of all or part of the Goods ordered in the shipment period detailed in the Order, the Principal is not under any obligation to re-deliver the relevant Goods to the Buyer and may declare the Buyer in default for the Goods which were not delivered, unless the Principal has extended the shipment period as detailed in clause 13.2 above. In the event that the Principal declares the Buyer to be in default under this clause 13.3 (in addition to any other rights under these Terms) the Principal:

a) may charge the Buyer all storage, haulage, interest charges and other costs incurred due to the Buyers default; and

b) will have the right to resell the Goods which were not delivered. The Buyer will be liable to the Principal for any difference between the Buyers contract price and the resale price (where the former is greater than the latter), or if the Goods cannot be conveniently resold, the Buyer will be liable for the original contract price of those Goods. Where the contract price is less than the resale price the difference is calculated as the difference between the contract price and the landed cost price prevailing at the time of resale.

13.4 If the Buyer fails to pay the contract price or any other amount payable to the Principal on the due date for payment (for any reason whatsoever) then without limiting in any way any of the Principal’s other rights:

(a) the Principal will be entitled to stop delivery of all Goods and the Buyer will pay all costs and expenses incurred as from the due date for payment including all costs of storage and insurance; and

(b) the Principal will be entitled to sell the Goods at any time, at the then market price and on such terms as the Principal will determine and the Buyer will in addition to any other amounts due to the Principal be liable to pay to the Principal the amount of any difference between your contract price and the resale price in accordance with clause 15.3(b).

14. Miscellaneous

14.1 Assignment: The Buyer may not transfer any right or benefit under these Terms. The Principal may transfer its rights and obligations under these Terms by notifying the Buyer in writing.

14.2 Enforcement: The Buyer will pay the Principal on demand all costs (including legal costs on a solicitor/client basis) incurred by the Principal in connection with any default by the Buyer or enforcement action taken by the Principal.

14.3 Entire agreement: These Terms (and any incorporated document, including any Order confirmation) are the entire agreement between the Principal and the Buyer, and supersede all representations, agreements and other communications made by the Principal

14.4 No waiver: The Principal will 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 Principal.

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 within the original intent of these Terms. The rest of these Terms are not affected.

14.6 Variation: The Principal may in its absolute discretion change these Terms for future Orders at any time by sending notice of the change to the Buyer or by publication on the website http://agrifeeds.co.nz/contracts

The change will take effect from the earlier of, the time specified in any notice to the Buyer, or the time the new terms are available on the relevant website.

14.7 Typographical errors: The Principal reserves the right to correct any typographical or clerical errors in any prices quoted or contained in an Order or other quotation.

14.8 Security Interest: The Principal may use the benefit of any security interest, security agreement, charge or mortgage given in favour of the Principal (including any of its associates) to secure payment and performance of the Buyer’s obligations under these Terms.

14.9 Disputes: Any dispute between the Principal and the Buyer will be discussed between them in the spirit of goodwill within the legal four corners of these Terms.

14.10 Governing Law: New Zealand law governs this agreement and the parties submit to the exclusive jurisdiction of the New Zealand courts.