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TERMS AND CONDITIONS of TRADE

 

The terms and conditions set out below govern all of the supplies of the Goods from Seales Limited (“Seales”) to the purchaser (“You”). They will replace any terms of conditions contained in any document used by you and purporting to have a contractual effect, and your acceptance of any Goods from Seales indicate your acceptance of these terms and conditions.

 

1. GENERAL: In these conditions:-

“Goods” means all stockfeeds, all crop inputs including seeds, chemicals, fertiliser, turf seeds, tools and or equipment and all agricultural contracting services. Goods also refer to grain drying or storage of grain.

 

  1. PRICE AND ORDERS

  1. Prices of the Goods may be altered without notice.

  2. Seales reserves the right to refuse to accept any order or any part of an order for any reason whatsoever.

 

  1. RISK AND DELIVERY

  1. You are responsible for insurance and risk in the Goods from the time they are received by a carrier for delivery to you or, where you have assumed responsibility for carriage, collected by you or your agent.

  2. You agree to pay all delivery costs unless arranged prior to acceptance of the order.

  3. All claims for shortage or damage to the Goods during delivery must be made to the carrier within 7 days of the date of delivery. Where the Goods appear to be damaged or missing you must contact the carrier and Seales immediately.

  4. Seales will make every effort to ensure delivery of the Goods is on time but will not be liable to you for any loss or damage arising in any way from any delay in delivery. Delay in delivery shall not entitle you to cancel any order.

 

  1. PAYMENT

  1. Unless Seales has agreed to extend credit to you, payment is to be made in cash before supply. Payment by cheque or by any type of bank transfer will not be considered payment until the payment has been fully cleared through the banking system into Seales’s bank account.

  2. Seales will extend credit to you to the credit limit set out in your credit application. Seales may vary the credit limit from time to time. If Seales extends further credit limit beyond the credit limit you may be required to execute further documentation to be approved by the Managing Director.

  3. Where Seales has agreed in writing to extend credit to you, payment is to be made in full by the 20th of the month following the date of purchase.

  4. You agree to pay for the Goods in full without deduction or set-off and to pay goods and services tax and any other government duties, levies or taxes in respect of the Goods.

  5. If payment is not made in full by the due date, Seales is entitled to charge you interest on the unpaid overdue balance at the rate of 7.5% per annum above the current overdraft rate charged by Seales bankers or 18% per annum whichever is the greater, compounding monthly on the unpaid balance owing on the first day of each month until payment in full is received by Seales, and Seales may at its option suspend delivery of further Goods until the account is paid. On default of payment “You” indemnify Seales in total against all costs and claims in respect to this debt, and accept liability for the full cost of recovery of this debt from you by Seales.

  6. Notwithstanding clauses 5(b) and 5(c) above, all payments shall immediately become due to Seales if you refuse to accept delivery of any Goods, become insolvent, commit any act of bankruptcy, or if a receiver, liquidator or statutory manager is appointed over any of your assets to make an arrangement or composition with creditors or if Seales believes on reasonable grounds that you cannot pay for the Goods.

 

  1. PROPERTY

  1. Property in the Goods shall not pass to you until you have paid for the Goods in full.

  2. Until property passes to you, you shall hold any Goods as fiduciary bailee for Seales, and store them in a manner to enable them to be identified and cross referenced to particular invoices.

  3. You authorise Seales or its agent to enter your premises to remove any Goods which are the property of Seales without prejudice to any other of Seales’ rights, and you indemnify Seales against all costs and claims in respect of its exercise or rights under this clause 5.

  4. You authorise Seales or its agent to remove any chattels, plant, machinery or livestock to the equivalent value of any property, product or goods purchased from Seales where you have not kept the property, product or goods as required in Clause 5(a), 5(b), and 5(c) above. Again 5(c) in identifying Seales costs shall be enforceable.

 

  1. CHARGE

(a) You and any Guarantor(s) grant to Seales a charge over all of your and the Guarantor(s) present and after acquired personal property and all of your and/or Guarantor(s) present and future rights in relation to any personal property, as security for payment or delivery of all amounts of any nature which you or the Guarantor(s) (whether alone or joint or jointly or severally with any other person), is or may at any time become liable (whether actually or contingently) to pay or deliver to Seales (whether alone or joint or jointly severally with any other person).

(b) You acknowledge that clause 5 and 6(a) create a security interest (“Security Interest”) (as that term is defined in the Personal Property Securities Act 1999) (“PPSA”) in the Goods. You will at Seales’ request promptly execute any documents, provide all necessary information and do anything else required by Seales to ensure that the Security Interest constitutes a Perfected Security Interest (as that term is defined in the PPSA) including executing any variations to this agreement reasonably requested by Seales.

(c) You and the Guarantor(s) agree that:

(i) to the extent permitted by law, section 114(1)(a), 133 and 134 of the PPSA will not apply and

(ii) to the extent permitted by law none of the rights referred to in sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA will be afforded to You and the Guarantor(s).

  1. where Seales has rights in addition to those in part 9 of the PPSA those rights will continue to apply.

 

  1. CONSUMER GUARANTEES ACT (“CGA”)

  1. The provisions of the CGA shall not apply to any supply of Goods to you, and the conditions, warranties and guarantees set out in the sale of Goods Act 1908 or implied by common law will not apply and are excluded from these terms and conditions (unless unable to be excluded by reasons of law).

  2. Where you purchase any Goods from Seales for resupply as, or incorporation into goods or services ordinarily acquired for personal household, domestic or commercial use or consumption (“Consumer Goods”) you warrant that:

  1. If you supply the Consumer Goods directly to an end user/consumer you will do so using terms and conditions of supply which exclude liability for any claims under the CGA and

  2. If your customer acquires the Goods for resupply you will ensure that your customer and each person in the distribution chain will exclude liability in its contract for supply for any claims under the CGA.

But in each case only where the end user/consumer acquires the Consumer Goods for business purposes. You agree to indemnify Seales against failure by you, your customers or any person in the distribution chain to properly contract out of liability to business end users/consumers under the CGA.

  1. In the event of conflict between these terms and conditions and the CGA, then the provisions of the CGA shall prevail and any such conflict shall be deemed not be an attempt to contact out of the CGA.

  2. It is a condition of the sale of all Goods that CGA will not apply to any goods acquired for a business purpose

 

  1. LIMITATION OF LIABILITY

  1. Seales’ liability to you shall be limited to the value of any Goods supplied, and Seales and its employees, contractors and agents, will not be liable to you for loss or damage of any kind however that loss or damage is caused or arises. This exclusion of liability includes, but is not limited to costs, consequential loss, loss of profits and damage caused by or arising from delays in manufacturing or delivery, unreasonable use, negligence (including a failure to do something which should have been done or to prevent something from happening) or a foreign substance being found in or on the Goods which Seales was not aware of.

  2. You acknowledge that Seales shall be under no obligation to ensure that any foreign substance is in or on the Goods.

 

  1. INDEMNITY

You will indemnify Seales against all costs (including legal costs on a solicitor and own client basis), expenses, losses, damages or claims arising in any way where you have failed to comply with any one of these terms, as modified from time to time.

 

  1. FORCE MAJEURE

Neither Seales nor you shall be liable for any delay in performing their obligations under these terms and conditions caused in whole or in part by force majeure which shall include (but not be limited to) any act of God, natural disaster, flood or earthquake, strike, lockout, fire, war, civil commotion, inability to obtain Goods or any other cause beyond their reasonable control.

 

10. VARIATION

Seales reserves the right to modify and vary these terms and conditions at any time.

 

11. NON WAIVER

If Seales fails to enforce any terms or to exercise its rights under these terms and conditions at any time, Seales has not waived those rights.

 

  1. SERVERABILITY

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

 

  1. LAW

These terms and conditions are governed by the laws of New Zealand and any dispute under them shall be subject to the jurisdiction of the Courts of New Zealand.