Terms of Trade
AGRIFEEDS TERMS OF TRADE
Effective from (14 June 2024)
1 APPLICATION AND AGREEMENT
1.1 The following Terms apply to all Orders and purchases of Goods and/or Services from Agrifeeds by the Customer, and any credit facilities Agrifeeds provide to the Customer, after the effective date described above.
2 DEFINITIONS
Agrifeeds means International Nutritionals Limited trading as Agrifeeds.
Agrifeeds Agent means any third party that is authorised by Agrifeeds (as principal) to sell Goods and/or Services as Agrifeeds’ agent.
Customer means the person(s) placing, or intending to place, an Order, purchasing Goods and/or Services or applying for credit facilities.
Goods means all goods available for supply by Agrifeeds, supplied or to be supplied by Agrifeeds to the Customer pursuant to an Order that has been accepted by Agrifeeds pursuant to clause 4.4, as the context requires.
Order means an order to purchase Goods and/or Services from Agrifeeds, placed by the Customer. Orders include one-off purchases and Purchase Contracts.
Price means the price payable by the Customer to Agrifeeds for the Goods and Services comprised in an Order that has been accepted by Agrifeeds, calculated in accordance with clause 7.1, together with any other amounts payable by the Customer pursuant to these Terms, including without limitation delivery and storage charges pursuant to clauses 5.1(c), 6.1 and 6.2 and interest pursuant to clause 8.1.
Purchase Contract means a contract where the Customer agrees to purchase, and Agrifeeds agree to supply, fixed quantities of Goods in each month during a specified period, for a fixed Price.
Services means all services available for supply by Agrifeeds, services performed or to be performed by Agrifeeds to the Customer, pursuant to an Order that has been accepted by Agrifeeds pursuant to clause 4.4, as the context requires. For the avoidance of doubt, Services excludes the provision of credit.
Terms means these Agrifeeds Terms of Trade.
Terms of Use has the meaning set out in clause 4.9.
Website means Agrifeeds’ website, with home page located at www.agrifeeds.co.nz, and including all sub pages thereof.
Working Day has the meaning set out in the Companies Act 1993.
3 ACCOUNT
3.1 The Customer may apply for a credit account with Agrifeeds, or apply to vary a credit limit in relation to an existing credit account, from time to time. The provision of a credit account to the Customer is in Agrifeeds’ sole discretion.
3.2 The Customer shall, and shall ensure guarantors, provide all information requested by Agrifeeds from time to time. The Customer warrants that all information provided by the Customer, a guarantor, or at the Customer’s direction, to Agrifeeds is true, correct and complete.
3.3 The Customer and any guarantor authorises Agrifeeds to do the following, either at the time that the Customer makes a credit account application, or at any later date:
(a) conduct all credit checks, make enquiries, collect all and any information from and disclose such information to third parties, and undertake any searches in relation to the Customer’s credit, financial and business affairs and history as is reasonably required to assess the Customer’s credit position and as otherwise deemed necessary by Agrifeeds from time to time;
(b) contact third parties to disclose to Agrifeeds such information about the Customer as Agrifeeds may reasonably require from time to time; and
(c) undertake the same due diligence as set out in subsections (a) and (b) in respect of any guarantor of the Customer, and the Customer agrees to procure any authorisation from the guarantor necessary for such due diligence to be completed.
3.4 If Agrifeeds agrees to grant a credit account to the Customer, the Customer:
(a) agrees that Agrifeeds may, at any time by providing notice to the Customer, suspend, cancel, withdraw, alter the terms of, or impose or revise a credit limit in respect of, the credit account or vary the invoicing or payment terms;
(b) agrees not to exceed any credit limit set by Agrifeeds in relation to the credit account. Acceptance of an Order in excess of the credit limit is not an extension of the then current credit limit; and
(c) shall, on Agrifeeds’ request, provide additional security to support the credit account that are satisfactory to Agrifeeds in its sole discretion. Such security arrangements may include without limitation guarantees, general security agreements, mortgages, bonds or other sureties.
3.5 If a credit account is suspended, cancelled or withdrawn, the then current balance of such account, if any, will become immediately due and payable by the Customer. If the Customers credit limit is reduced, and the credit account balance is in excess of the reduced credit limit, then such excess amount shall become immediately due and payable.
4 ORDERS AND SUPPLY
4.1 Agrifeeds may upon request issue quotes to the Customer from time to time. The pricing set out in a quote shall be valid until 4.30pm on the day the quote is issued, unless an earlier time is specified in the quote. Agrifeeds may withdraw, update or vary any quote by advising the Customer. Agrifeeds shall not be bound in respect of any errors in any quote. Agrifeeds Agent’s may issue quotes on Agrifeeds’ behalf. All quotes exclude delivery costs, unless expressly stated otherwise in the quote.
4.2 The Customer may place an Order via an Agrifeeds sales representative, phone, email, text message, Website, Agrifeeds Agent or other method promulgated by Agrifeeds from time to time. The Customer shall ensure that any person placing an Order with Agrifeeds is properly authorised prior to such Order being placed. Agrifeeds shall have no obligation to enquire as to whether a person placing an Order is properly authorised.
4.3 Agrifeeds may specify minimum Order quantities, and vary them, from time to time. An Order may only be placed for less than the minimum Order quantity with Agrifeeds’ prior written consent.
4.4 No orders shall be binding on Agrifeeds until Agrifeeds notifies the Customer in writing by email. Agrifeeds may accept Orders (in whole or in part) in Agrifeeds’ sole discretion. If an Order is not accepted, Agrifeeds shall notify the Customer. For the avoidance of doubt, notification that an order has been successfully placed or received via the Website, whether by email or otherwise, shall not comprise acceptance of the Order by Agrifeeds.
4.5 Each Order accepted by Agrifeeds is deemed to incorporate and be subject to these Terms and shall constitute a separate contract for the supply of the Goods and/or Services between the Customer and Agrifeeds.
4.6 On acceptance of an Order, Agrifeeds will use reasonable endeavours to source and supply all Goods and/or Services within a reasonable time, but acceptance does not guarantee supply or timing of delivery or collection.
4.7 Once an Order is received by Agrifeeds, it cannot be cancelled by the Customer, whether accepted by Agrifeeds or not, unless Agrifeeds provides its prior written consent.
4.8 Agrifeeds may cancel all or part of an accepted Order, if any Goods are out of stock, unable to be imported or cleared for import, or are otherwise unavailable, and Agrifeeds is unable to source the Goods, within a reasonable time. Agrifeeds shall refund any amount paid by the Customer in respect of the cancelled part of the Order, and this shall be the Customers exclusive remedy.
4.9 Certain Goods and Services may be subject to additional Agrifeeds terms and conditions or other terms of use that are specific to those Goods and Services and are in writing (Terms of Use), in addition to these Terms. The Customer agrees to comply with all Terms of Use that are published on the Website, or that Agrifeeds or an Agrifeeds Agent notifies the Customer of from time to time.
5 PURCHASE CONTRACTS
5.1 If the Customer signs and returns, or otherwise agrees to be bound by, a Purchase Contract, this shall be deemed to be an Order placed pursuant to clause 4.2, and is subject to Agrifeeds’ acceptance pursuant to clause 4.4. The Customer agrees that the quantities of Goods specified in the Purchase Contract are binding and are not estimates. On Agrifeeds’ acceptance of the Purchase Contract pursuant to clause 4.4;
(a) Agrifeeds will use reasonable endeavours to supply, and the Customer shall accept, the specified quantity of Goods in the corresponding month during the term of the Purchase Contract (Monthly Allocation);
(b) the Customer must notify Agrifeeds of when the Customer would like the Monthly Allocation to be collected or delivered. The requested date must be within the month specified in the Purchase Contract for the Monthly Allocation, and at least seven Working Days’ notice must be given to Agrifeeds. Agrifeeds will use reasonable to endeavours to make the Monthly Allocation available for collection or delivery on the dates requested by the Customer. If the dates are not acceptable to Agrifeeds, Agrifeeds may specify revised dates within the month specified in the Purchase Contract for the Monthly Allocation, which shall be binding; and
(c) if Agrifeeds agrees in its sole discretion to delay delivery or collection of a Monthly Allocation to a date after the month specified in the Purchase Contract for the Monthly Allocation, Agrifeeds may charge the Customer for storage of the Monthly Allocation in accordance with Agrifeeds’ standard carry or storage rates from time to time for the period between the end of the month specified in the Purchase Contract for the Monthly Allocation and the date on which the Monthly Allocation is actually delivered or collected.
6 DELIVERY
6.1 The Customer may arrange collection of the Goods from the collection point nominated by Agrifeeds (Collection Point), at the Customer’s cost, by nominating an Agrifeeds approved delivery subcontractor (Collection Subcontractor) in the Order. Collection shall take place at a time and on a date specified by Agrifeeds (Collection Time). Agrifeeds is not responsible or liable for the acts and/or omissions of any Collection Subcontractor engaged by the Customer, and the Customer is responsible and liable to ensure that the means of collection of Goods is suitable. If the Customer’s nominated Collection Subcontractor fails to collect the Goods at the Collection Time, Agrifeeds may charge the Customer for storage, in accordance with Agrifeeds’ standard storage charges applicable from time to time.
6.2 Where a non-approved delivery subcontractor is nominated by the Customer, Agrifeeds may either:
(a) reject the non-approved delivery subcontractor and arrange delivery of the Goods to the Customer’s delivery destination or address specified in the Order (Delivery Point) at the Customer’s cost, which shall be calculated in accordance with Agrifeeds’ standard charges applicable from time to time; or
(b) accept the non-approved delivery subcontractor and charge the Customer a fee for using the non-approved delivery subcontractor in accordance with Agrifeeds’ standard charges applicable from time to time.
6.3 Where the Customer does not nominate a delivery subcontractor, Agrifeeds shall arrange delivery of the Goods in the manner set out in clause 6.2(a).
6.4 Delivery of the Goods (Delivery) is deemed to have occurred (as applicable):
(a) at the time the Customer, Customer’s agent or Collection Subcontractor, collects the Goods from the Collection Point; or
(b) at the time that they are delivered by Agrifeeds, or its subcontractor, to the Delivery Point.
6.5 Any Delivery time or date provided by Agrifeeds (including without limitation the Collection Time or pursuant to clause 5.1(b)) is an estimate only, and Agrifeeds will not be liable for any delay in Delivery, or early delivery, whether or not beyond its control. Late delivery does not entitle the Customer to cancel all or part of any Order or to refuse to accept Delivery.
6.6 Delivery of the Goods to the Delivery Point may occur in instalments.
6.7 The Customer shall ensure reasonable, safe and practical access to the Delivery Point and any location where Services are to be performed (if any).
6.8 The Customer shall pay Agrifeeds’ standard storage and redelivery charges, where Agrifeeds or its subcontractors attempt Delivery of any Order or part of an Order, and is unable to complete Delivery due to the Customer not accepting delivery or failing to comply with the requirements of this clause 6.
7 PRICE AND PAYMENT
7.1 The Price for Goods and Services shall be calculated in accordance with Agrifeeds’ standard pricing as at the time the relevant Order is accepted by Agrifeeds (which may be a spot price), unless the Order is based on a quote which remains valid at the time the Order is placed, a Purchase Contract accepted by Agrifeeds or Agrifeeds have otherwise agreed in writing, in such cases those Prices shall apply.
7.2 The Customer agrees that the Price is in New Zealand dollars and is exclusive of and plus GST and all other taxes and duties.
7.3 Agrifeeds will invoice the Customer for the Price of each Order on acceptance of each Order, for Purchase Contracts in each month during the term of the Purchase Contract for the applicable Monthly Allocation or where Agrifeeds agrees to issue an invoice to a third party pursuant to clause 7.6, invoices shall be issued accordance with clause 7.6. Invoices may be issued by Agrifeeds Agents on behalf of Agrifeeds.
7.4 If the Customer does not have a valid credit account with Agrifeeds, or the Customer has a valid credit account with insufficient credit available, the Customer shall pay each invoice at the time that the Order is accepted by Agrifeeds, using a payment method acceptable to Agrifeeds. Agrifeeds may at any time require the Customer to pay a non-refundable deposit or the full amount of the Order, as part or full payment of the Price, prior to Agrifeeds accepting the Order.
7.5 If the Customer has a valid credit account with Agrifeeds with sufficient credit available, the Customer shall pay each invoice on or prior to the 20th of the month following the month that the invoice is issued, or such later date agreed by Agrifeeds in writing. Where the due date for payment of an invoice falls on a non-Working Day, payment is due on the Working Day immediately prior.
7.6 If the Customer requests that the Price for one or more Orders be split into two or more invoices, one to be issued to the Customer and one or more invoices be issued to a third party(ies), Agrifeeds may issue such invoices in Agrifeeds’ sole discretion from time to time. The Customer agrees that it shall remain liable (on a joint and several basis with the third party) to pay for the full amount of the Price (and any consequences of late payment set out in these Terms, including without limitation pursuant to clause 8.1) notwithstanding that Agrifeeds may not have issued an invoice for the full amount of the Price to the Customer, and that Agrifeeds may have issued invoices to third parties for part of the Price. Where the Customer is nominated to receive an invoice by a third party, the Customer agrees, on a joint and several basis with the third party, to pay the amount set out in such invoice, as if the Goods and/or Services described in the invoice were ordered directly by the Customer. The Customer shall indemnify Agrifeeds for all costs, expenses, liability, loss and damage incurred (on a solicitor client basis) where the Customer wilfully or negligently requests that Agrifeeds issue an invoice to a third party, and the Customer does not have a relationship with the third party that justifies the issue of such invoice.
7.7 Payment of the Price shall be made in cleared funds, free of any set-off or deduction, to the bank account nominated by Agrifeeds, which may be the Agrifeeds Agent’s bank account. Agrifeeds may allocate amounts received in its sole discretion.
8 DEFAULT
8.1 If the Customer fails to pay any invoice pursuant to clause 7 on or prior to the due date, any third party does not pay any amount invoiced to that third party pursuant to clause 7.6 on or prior to the due date, is otherwise in breach of these Terms, or Agrifeeds considers that any Goods that it owns which are in possession of the Customer are at risk, Agrifeeds may, in its sole discretion, without prejudice to and in addition to any other rights and remedies, do any one or more of the following:
(a) suspend the delivery of any Goods and/or the performance of any Services, cancel any Order, and/or terminate (in whole or in part) the supply of the Goods and/or Services, by providing notice to the Customer;
(b) suspend or cancel the Customer’s credit account, or revise the credit limit;
(c) charge interest at a rate of 2% per month on all amounts due but unpaid, calculated on a daily basis from the due date until Agrifeeds receives payment in full. The Customer agrees it will be liable to pay interest on any amount invoiced to a third party pursuant to clause 7.6 that is not paid on the due date;
(d) enforce any security interest described in clauses 9.4 and/or 9.9, guarantee or any other security;
(e) appoint a receiver in respect of any Goods or other collateral subject to a security interest or other security. Such receiver is authorised to exercise all of Agrifeeds’ rights pursuant to these Terms, and exercise all usual and customary rights and powers conferred on a receiver by law and the Receiverships Act 1993; and
(f) take legal action to recover the amounts owing, appoint a collections agent, receiver or other third party to collect the amounts owing,
and all costs and expenses associated with such (including legal costs as between solicitor and client), shall be paid by the Customer in addition to the amount owing.
9 TITLE, RISK, OWNERSHIP AND SECURITY
9.1 Risk in the Goods shall pass to the Customer on Delivery, with no recourse to Agrifeeds. For the avoidance of doubt, the Customer is responsible for adequately insuring the Goods from Delivery.
9.2 Title to the Goods shall not pass to the Customer until they have been paid for in full.
9.3 Until the Customer has paid for the Goods in full, the Customer agrees that:
(a) the Customer holds the Goods solely as bailee for Agrifeeds and the Customer will store the Goods separately and in such a way that it is clear that they are the property of Agrifeeds, and shall ensure that they are stored in a manner that will protect them from theft, damage and/or deterioration;
(b) Agrifeeds and its agents shall have the right to enter onto any land or premises where the Goods are being stored, at any reasonable time to inspect the Goods and ensure compliance with these Terms; and
(c) if the Goods are stored at the premises of a third party, the Customer will on Agrifeeds’ request, obtain the consent of that third party to Agrifeeds’ entry onto the premises for this purpose. If the Customer fails to obtain such consent within 3 Working Days of such request, the Customer shall pay all costs incurred by Agrifeeds in respect of obtaining such entry right, including all legal costs (as between solicitor and client).
9.4 To secure payment of all amounts owing by the Customer to Agrifeeds from time to time, and to secure performance of the Customer’s obligations pursuant to these Terms, the Customer grants to Agrifeeds:
(a) a security interest over all Goods supplied to the Customer by Agrifeeds, and all of the proceeds in respect of those Goods; and
(b) a security interest over all of the Customer’s present and after acquired property, and all of the proceeds of sale of such property, excluding items of personal property that are not permitted to be subject to a security interest pursuant to applicable law.
9.5 The Customer agrees to:
(a) co-operate in good faith with Agrifeeds to execute the documentation required to register a security interest in favour of Agrifeeds on the Personal Property Securities Register and protect Agrifeeds’ interest in the Goods and other collateral; and
(b) waive any right to receive a copy of the verification statement, pursuant to section 148 of the Personal Property Securities Act 1999 (PPSA).
9.6 If required by Agrifeeds, the Customer agrees to cooperate in good faith with Agrifeeds to execute all documentation required to register any security interest in favour of Agrifeeds on the Personal Property Securities Register and to protect Agrifeeds’ interest in the Goods supplied.
9.7 If Goods that Agrifeeds has a security interest in are processed, included or dealt with in any way causing them to become accessions, processed or commingled goods, Agrifeeds’ security interest will continue in the whole in which they are included, and nothing shall affect the application of sections 82 to 86 of the PPSA.
9.8 The Customer gives irrevocable authority to Agrifeeds and its agents to enter any premises occupied by the Customer or on which Goods or other property owned by Agrifeeds are likely to be situated at any reasonable time after default by the Customer, or before default if Agrifeeds believes a default is likely or the Goods or other property is at risk, and to remove and repossess any Goods and any other property subject to a security interest granted by the Customer pursuant to these Terms, in accordance with section 109 of the PSPA. Agrifeeds shall not be liable for any costs, damages, expenses or losses incurred by the Customer or any third party as a result of this action, nor liable in contract or in tort or otherwise in any way whatsoever unless by statute such liability cannot be excluded.
9.9 To secure the Customer’s payment of the Price and performance of all other obligations set out in these Terms, the Customer agrees to grant to Agrifeeds, immediately upon request, a mortgage (within the meaning of the Property Law Act 2007) over any and all land owned by the Customer that has been selected by Agrifeeds (Land). You acknowledge that as soon as a request is made, Agrifeeds will acquire an equitable mortgage over the Land in respect of which Agrifeeds may lodge a caveat, with such equitable mortgage to contain the covenants, conditions, provisions and powers as are usually inserted in an all obligations Auckland District Law Society mortgage.
10 COMPLIANCE
10.1 The Customer will comply with:
(a) any and all applicable laws;
(b) without limiting clause 10.1 (a), all of its obligations under the Health and Safety at Work Act 2015 (HSWA); and
(c) comply with Agrifeeds’ reasonable instructions and policies issued from time to time, including without limitation requirements in respect of the receipt of Goods and/or Services from Agrifeeds.
10.2 The parties acknowledge their respective duties and responsibilities under HSWA, and agree to comply with them.
10.3 The Parties will work cooperatively with each other in respect of any aspects where the parties have overlapping duties or obligations. The parties agree that they will consult with each other regularly to identify hazards and risk of harm at each Workplace (as defined in HWSA), and where hazards or risk of harm has been identified, to each incorporate these into their respective health and safety procedures and protocols to minimise the risk of harm or hazard as appropriate.
10.4 The Customer shall:
(a) ensure the Delivery Point (if applicable) complies with all applicable laws, particularly those relevant to the health and safety of Agrifeeds and its employees and subcontractors who perform Services or Delivery;
(b) in respect of the Delivery Point, identify any hazards that may present a risk to Agrifeeds employees or subcontractors prior to Delivery occurring;
(c) ensure that it, or its Collection Subcontractor, complies with all policies, procedures, instructions and directions issued by Agrifeeds or any owner or operator of the Collection Point or land on which the Collection Point is located, including without limitation in relation to health and safety; and
(d) obtain (at its cost) any necessary permits, licences, consents and approvals required for the Customer to take delivery of the Goods, and to store and use the Goods (if applicable), in accordance with all applicable laws.
11 WARRANTIES
11.1 Farming is an inherently risky endeavour, and is subject to significant factors outside of Agrifeeds control that can significantly adversely affect the benefit of purchasing the Goods and/or Services. As a result, Agrifeeds do not give any warranty, representation, guarantee or condition of sale, that any specific results, outcomes or performance can be achieved or expected from the Goods and/or Services.
11.2 Agrifeeds warrant that the:
(a) Services will be materially performed or provided in accordance with the lesser of Agrifeeds’ standard operating procedures or industry standard practice.
(b) Goods will at the point of Delivery materially comply with the applicable description of the Goods (if any) set out on the Website as at the date the Order is placed, as may be updated from time to time.
11.3 To the extent permitted by applicable law, if the Customer is in trade, or acquiring the Goods and/or Services for business purposes, the parties agree that:
(a) except as expressly set out in these Terms, the Goods and/or Services are provided by Agrifeeds “as is”, without any guarantee, warranty, condition or representations (whether express, implied by law, statute, trade custom or otherwise) including without limitation in relation to quality, merchantability, suitability for purpose, ownership, matching any sample or otherwise, and whether pursuant to the Contracts and Commercial Law Act 2017, other applicable laws or regulations, or otherwise;
(b) the Customer acknowledges that in purchasing the Goods and/or Services, it is relying on its own expertise, skill and judgement and that it is not Agrifeeds;
(c) the implied terms, guarantees, covenants, and conditions in the Consumer Guarantees Act 1993 and sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1993 do not apply, and are excluded; and
(d) notwithstanding clause 11.2, Agrifeeds does not give any warranties in relation to Goods and/or Services that are manufactured or performed by a third party and resold by Agrifeeds to the Customer. Agrifeeds will use its reasonable endeavours to pass on the benefit of any manufacturer warranty to the Customer, if applicable and provide reasonable assistance if the Customer wishes to make a claim against an applicable manufacturer’s warranty.
11.4 Agrifeeds shall not be liable for any loss or damage incurred by the Customer or any third party as a result of:
(a) Agrifeeds carrying out, or attempting to carry out, the Customer’s, or any Customer’s employees, contractors or agents, specific instructions or directions; or
(b) the Customer failing to give Agrifeeds specific instructions in respect of the Services that would have, or would be reasonably likely to have, avoided or mitigated such loss or damage.
11.5 The person accepting these Terms on behalf of the Customer, and the person placing Orders on behalf of the Customer, warrants that they are authorised to do so by the Customer.
11.6 The Customer acknowledges that Agrifeeds Agents are not authorised to make or provide any representation or warranty in relation to the Goods and/or Services, and that Agrifeeds are not bound by, or liable in respect of, any breach of any representation or warranty made by an Agrifeeds Agent.
12 WARRANTY CLAIMS
12.1 The Customer shall inspect the Goods immediately on Delivery. The Customer has seven Working Days from the date of Delivery to notify Agrifeeds in writing in respect of any damage to or defect in respect of the Goods provided. Failure to do so within this timeframe will deem the Goods to be accepted by the Customer.
12.2 Where the Customer consider the Goods and/or Services supplied by Agrifeeds to be in breach of any of the warranties in clause 11.2 or are subject to any other claim by the Customer, the Customer shall notify Agrifeeds in writing of the detail of such breach or claim, including providing proof of purchase, photos and any relevant information regarding the breach or claim (Warranty Claim Notice).
12.3 On Agrifeeds’ receipt of the Warranty Claim Notice, Agrifeeds may investigate and shall determine, in its sole discretion, whether the warranty in clause 11.2 or any other rights have been breached. In the event of breach, Agrifeeds shall either, as determined by Agrifeeds in its sole discretion, repair, replace, reperform, credit or refund the purchase price actually paid by the Customer for the breaching Goods and/or Services, and such shall be the Customers exclusive remedy in respect of the breach. Where Agrifeeds provides a repair, replace, credit or refund remedy in relation to Goods, Agrifeeds or its nominated subcontractor may (at Agrifeeds election) either collect the breaching Goods, or require the Customer to responsibly dump or destroy the Goods and Agrifeeds shall reimburse the Customer for any reasonable unrelated third party costs incurred in relation to such dumping or destruction. For the avoidance of doubt, Agrifeeds may resell any Goods that it collects from the Customer.
13 INDEMNIFICATION AND LIMITATION OF LIABILITY
13.1 The Customer agrees to indemnify Agrifeeds against all liabilities, costs (including full costs between solicitor and client), losses, claims, expenses and demands incurred by Agrifeeds or any third party arising out of or incidental to:
(a) the supply of the Goods and/or Services,
(b) Agrifeeds carrying out or attempting to carry out, the Customer’s, or any Customer’s employees, contractors or agents, specific instructions or directions;
(c) the Customer’s non-compliance with or breach of these Terms; and
(d) any third party claims arising out of or incidental to the supply of and/or use of the Goods and/or Services,
except where such liabilities, costs, claims and demands are the direct result of the gross negligence of Agrifeeds.
13.2 For the avoidance of doubt, and without limiting the loss that may be claimed from the Customer pursuant to clause 13.1, if Agrifeeds cancels any Order due to the default of the Customer, the Customer shall be liable to pay to Agrifeeds the amount of any difference between the Order price and the resale price (where the former is greater than the latter), or if the goods cannot be conveniently resold within a reasonable period of time, the Customer will be liable for the full value of the cancelled Order.
13.3 Agrifeeds will not be liable to the Customer for any indirect loss, consequential loss, fines, loss of profit, loss of bargain, loss of business opportunity or exemplary damages suffered by the Customer or any other person, arising out of or flowing from these Terms or the supply or performance of Goods and/or Services, whether contemplated by these Terms or an Order, or not, and whether actionable in contract, tort (including negligence), equity, statute or otherwise. In addition to the above, Agrifeeds shall not be liable to the Customer or any third party to the extent that any loss or damage was caused or contributed to by the Customer’s negligence, or that of the Customer’s employees, representatives, agents or third parties, or where such loss or damage results from Agrifeeds exercising any one or more of its rights or remedies described in these Terms.
13.4 In the event that, Agrifeeds is found liable for any loss or damage incurred by the Customer or other third party in relation to the Goods and/or Services or these Terms, including the loss or damages set out in 13.3 above, such liability will be limited to the Price paid or to be paid by the Customer to Agrifeeds for the Goods and/or Services to which the liability relates, and is inclusive of all claims made against Agrifeeds arising from the same event or series of related or connected events.
14 INTELLECTUAL PROPERTY
14.1 The Customer agrees and acknowledges that Agrifeeds is the owner or licensee of all intellectual property rights related to the Goods and/or Services. The Customer shall not, except to the extent agreed by Agrifeeds in writing, or as expressly provided for under these Terms:
(a) use, distribute, duplicate, modify or reverse engineer the intellectual property of Agrifeeds or a third party in respect of the Goods and/or Services;
(b) tamper with or remove any markings, trade marks, patent numbers, registration numbers or other indication of the source of origin of any Goods or descriptions required by law which are placed by Agrifeeds, or Agrifeeds’ suppliers or licensors, on the Goods or Services;
(c) claim any rights, title or interests in or to the intellectual property in the Goods and/or Services;
(d) damage or otherwise endanger Agrifeeds’, or any of Agrifeeds’ suppliers or licensors’, intellectual property rights in the Goods and/or Services; or
(e) use the intellectual property or Goods and/or Services other than as is reasonably intended by Agrifeeds or expressly specified in any applicable Terms of Use.
15 RESALE
15.1 A Customer shall not resell any Goods and/or Services, unless otherwise agreed by Agrifeeds in writing. Agrifeeds’ agreement may be subject to conditions, which the Customer must comply with.
16 CONFIDENTIALITY
16.1 All intellectual property and other information belonging to Agrifeeds which by designation or by its nature is intended to be treated as confidential will be confidential information for the purposes of these Terms. To avoid doubt, confidential information includes but is not limited to the Prices, profit margins, and the identity of Agrifeeds’ suppliers. Except as otherwise specified in these Terms, or as otherwise required under law, the Customer will not without prior written consent of Agrifeeds use such confidential information for any purpose other than as reasonably intended by these Terms, or disclose any confidential information to any third party. The confidentiality obligations under this provision survive the termination of these Terms.
17 PERSONAL INFORMATION
17.1 The Customer agrees that Agrifeeds may collect, use, store and disclose the Customer’s and the Customer’s officers and employees’ personal information as set out in these Terms (including without limitation clause 3.3) and as set out in Agrifeeds’ privacy policy, as may be updated from time to time. If the Customer is an individual, the Customer has rights under the Privacy Act 1993 (or its successor legislation) to access any personal information that Agrifeeds holds and to request the correction of such personal information.
18 DISPUTE RESOLUTION
18.1 In the event of any dispute between the parties in relation to this Agreement, the parties shall first seek to resolve such dispute by promptly giving notice of such dispute to the other party (Dispute Notice) and cooperatively endeavouring to resolve such dispute. If the dispute remains unresolved 10 Working Days after the date that the other party received the Dispute Notice, the parties shall then seek a resolution through the use of mediation prior to seeking resolution through Arbitration. Arbitration shall be conducted by a sole arbitrator, in Hamilton, in accordance with the Arbitration Act 1996 and the AMINZ Arbitration Rules current at the time of commencement of the arbitration.
19 TERMINATION
19.1 If the Customer fails to pay any monies when due, becomes insolvent, bankrupt, enters into liquidation, receivership, voluntary administration, is wound up or struck off, or Agrifeeds forms the view that the Customer is unable to pay its debts as they fall due, exceeds a credit limit, or otherwise breaches these Terms, Agrifeeds may (without prejudice to any other rights or remedies available to it) no earlier than ten Working Days of notifying the Customer to remedy the breach, and the Customer failing to remedy the breach within such period, suspend delivery of any or all of the Goods and/or Services in respect of any Order, refuse to fill or cancel any Orders, suspend or cancel the Customer’s credit account, or terminate these Terms, by providing notice in writing to the Customer.
19.2 Where Agrifeeds cancels any Order, the Customer is not released from liability in respect of that Order.
19.3 Agrifeeds may without limitation resell any Goods subject to a cancelled Order.
19.4 On termination of these Terms:
(a) any undelivered Order shall be deemed to be cancelled, unless otherwise agreed by Agrifeeds;
(b) any credit account the Customer holds with Agrifeeds shall be closed, and Agrifeeds shall issue a statement setting out all amounts invoiced but that remain unpaid;
(c) the due date for payment for all unpaid invoices shall be accelerated, and the Customer shall immediately pay the amount set out in the statement to Agrifeeds;
(d) the Customer shall immediately return all of Agrifeeds, or Agrifeeds’ licensors, property that is in the Customer’s possession or control, including without limitation any Goods, equipment, tools or materials; and
(e) immediately cease use of Agrifeeds’ confidential information and intellectual property.
20 MISCELLANEOUS
20.1 Previous terms: These Terms replace any previous terms and conditions in effect between Agrifeeds and the Customer prior to the Effective Date that relate to the purchase of Goods and Services (Previous Terms). For the avoidance of doubt, any security, including without limitation security interest, guarantees, and equitable mortgages, provided by the Customer in the Previous Terms shall continue to apply for the benefit of Agrifeeds.
20.2 Agrifeeds Agent Terms: The parties agree that any other terms and conditions in effect between the Customer and the Agrifeeds Agent shall not apply as between the Customer and Agrifeeds, in respect of the purchase of Goods and/or Services from Agrifeeds. Agrifeeds acknowledges that an Agrifeeds Agent may offer credit accounts in respect of purchases of Goods and Services pursuant to the Agrifeeds Agent’s terms and conditions, but this is not credit offered by Agrifeeds.
20.3 Conflict: Should these Terms conflict with any other terms and conditions that apply in relation to this Agreement, including without limitation the Terms of Use, a Purchase Contract or terms of use of the Website, these Terms shall prevail.
20.4 Governing Law: These Terms shall be governed by the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand.
20.5 Communications: The Customer agrees that Agrifeeds may provide all general communications, including the provision of invoices and statements, to the Customer’s nominated email address, and a physical copy is not required to be posted. In addition the Customer consents to Agrifeeds providing electronic commercial electronic messages to the Customer, unless the Customer opts out by notifying Agrifeeds in writing or using an unsubscribe feature or function.
20.6 Notices: Notices will be sufficiently given if posted or successfully transmitted by email to the intended recipient at their last known address, which in the case of Agrifeeds is accounts@Agrifeeds.co.nz. The Customer will notify Agrifeeds in writing of any changes to the Customer’s contact details.
20.7 Variation: Agrifeeds may vary these Terms at any time for future Orders, by obtaining the Customers written consent, providing notice in writing to the Customer, or posting the varied terms on its Website. The Customer’s continued ordering of Goods and/or Services after the effective date of such varied terms will be deemed to be the Customer’s acceptance of the varied terms. If the Customer does not accept the varied terms, the Customer may cease placing any further Orders, or terminate these Terms by providing notice in writing to Agrifeeds within 30 days after the date that the varied terms come into effect. On Agrifeeds receipt of such termination notice, the varied terms shall not apply, and these Terms shall terminate once all Delivery has occurred in respect of the last Order accepted by Agrifeeds prior to receipt of such termination notice.
20.8 Assignment: The Customer shall not assign or otherwise transfer or encumber its rights or obligations under these Terms except with the prior written consent of Agrifeeds. Agrifeeds can at any time assign or otherwise transfer, encumber or subcontract any of its rights and obligations under these Terms to a third party.
20.9 Force majeure: Agrifeeds shall not be liable for delay or failure in the performance of any of its obligations imposed by these Terms, if the delay or failure arises from an event or circumstance beyond Agrifeeds’ reasonable control including, but without limitation, weather (including, without limitation, rain (or lack thereof), wind or fog), fire, flood, tsunami, storm, tempest, earthquake or other act of God, nature, contamination, war or government, any civil disturbance, or any labour disruption, or any other cause reasonably beyond Agrifeeds’ control.
20.10 Joint and Several: If the Customer is two or more people, those people are bound to comply with these Terms on a joint and several basis.
20.11 Waiver: A party will not have waived or be deemed to have waived any provision of these Terms unless the waiver is in writing and signed by that party.
20.12 Survivorship: Termination of these Terms for any reason will not affect such rights and obligations of the parties as are intended to survive the termination.
20.13 No relationship: These Terms does not create any relationship of partnership, employment, agency or joint venture between the parties.
20.14 Severability: Should any part or provision of these Terms be held unenforceable or in conflict with any applicable laws or regulations, the invalid or unenforceable part or provision will be replaced with a provision which accomplishes, to such extent as possible, the original business purpose of the part or provision in a valid and enforceable manner, and the remainder of the Terms will be binding on the parties.
20.15 Entire Agreement: These Terms, and any documents agreed in these Terms to apply between the parties, constitute the sole understanding of the parties and supersedes all prior understandings, written or oral, which will be of no further force or effect.
20.16 A party may sign these Terms by way of the application of that party’s electronic signature in accordance with Part 4 of the Contract and Commercial Law Act 2017.