DENVER STOCK FEEDS LIMITED TERMS & CONDITIONS OF TRADE
GENERAL
1.1 IN CONSIDERATION of the Company agreeing to supply goods to the Customer and of the Company agreeing not to demand payment of the price of such goods purchased by the Customer until the 20th day of the month next succeeding the month during which such goods are purchased (“the due date”) or upon such other time and upon such terms as are agreed upon between the parties in writing, the Customer AGREES to pay the said price and, if payment of such goods is not made on or before the due date, in default to pay liquidated damages by way of interest at the rate or rates of 2.5% per month (subject to change from time to time as determined by the Company and these decisions shall be final and conclusive without notice to the Customer) on the amount of such price or so much thereof as may then be owing from the date of purchase to and including the date on which payment is made.
1.2 Non-payment by the due date or upon such other time as agreed upon is a default that gives a right to enforce in terms of Section 109 of the Personal Property Securities Act1999.
1.3 The rate or rates of interest applicable from time to time will be disclosed on the monthly statement delivered to the Customer’s postal address in the ordinary course of the post and the Customer shall be deemed to have received that statement in the ordinary course of the post. The Customer agrees and undertakes to advise the Company in writing if and as soon as the Customer’s postal address and/or residential or business address or location of business shall change and then to supply to the Company the Customer’s new address from time to time for the purpose of rendering of accounts and delivery of statements.
1.4 This Agreement shall apply to all goods transactions between the Company and the Customer until the Company cancels this agreement, or unless for any particular purchase a separate agreement in writing is made in which case this and the separate agreement shall be read together and where in conflict this agreement shall prevail. The Company may cancel this agreement at any time after 7 days have elapsed from the date of this agreement. Any such cancellation is without prejudice to the Customer’s liability for any debt and liquidated damages owing or to become owing by the Customer.
PRICES
2.1 Prices are subject to change without notice. All orders will be charged at prices prevailing at the time of delivery of the goods. Where prices have been quoted they shall be as per quote, provided the quote has been accepted within 30 days.
3.1 Time shall in no case be of the essence. The Company shall not be responsible for any delay in delivery and the Customer shall not be entitled to cancel the order on account of any such delay. Dates for delivery are given in good faith and not to be treated as a condition of purchase.
PAYMENT
4.1 Payment by the Customer shall be made without deduction and no payments shall be withheld, reduced or deferred on account of any claim, counterclaim, and setoff or otherwise.
4.2 If full payment is not made by the due date then:
- The Customer shall pay liquidated damages on the money owing calculated on the basis of penalty interest on such money at the rate from time to time charged by the Company and set out in Clause 1. These shall be:- calculated from the date of purchase; and shall be considered as accruing from day to day; and shall be compounded to and become part of the principal debt at the end of each month of default; and carry interest in like manner; and shall accrue in the same manner after as well as before judgment.
- The Customer shall also be liable to pay and shall pay all the expenses and legal costs incurred by the Company as a result of the Customer’s default.
4.3 Any payment made in settlement of the money owing and such damages will not be treated as made until the date on which the payment is actually credited to the Customer’s account in the Company’s books in the ordinary course of business, and if made by cheque then until that cheque is honoured and so credited.
LIABILITY
5.1 The Customer shall be bound by all transactions undertaken with the Company (notwithstanding that any person undertaking any transaction does not have actual or ostensible authority to undertake it) unless the Customer shall have notified the Company in writing that the Company may undertake transactions only on the authorisation of certain named persons.
5.2 Where there is more than one Customer the liability and obligations of each are joint and several, and all obligations herein shall bind the Customer and his/her administrators, successors or assigns. Each such Customer authorises the Company to deal with any one of them as binding the others.
5.3 Demands for the amounts due is deemed to be made not later than the 20th day or the issue of the said monthly statements whichever occurs first.
TIME OF PERFORMANCE
6.1 Time shall in no case be of the essence. The Company shall not be responsible for any delay in delivery and the Customer shall not be entitled to cancel the order on account of any such delay. Dates for delivery are given in good faith and not to be treated as a condition of purchase.
RISK AND INSURANCE
7.1 The Customer shall be liable for insuring the Goods and the Goods shall be at the sole risk of the Customer from the time of delivery or collection from the Company’s place or business, or from the point of supply of the Goods.
SECURITY INTEREST AND PERSONAL PROPERTY SECURITIES ACT
8.1The Customer gives the Company a security interest in all of the Customer’s present and after acquired property in goods or materials.
(i) sign any further documents and/or provide any further information (which information the Customer warrants to be complete, accurate and up-to-date in all respects) which the Company may reasonably require to enable registration of a financing statement or financing change statement on the Personal Property Securities Register (“PPSR).
(ii) not register a financing statement as defined in section 135 of the PPSA or make a demand to alter the financing statement pursuant to section 162 of the PPSA in respect of the Goods without the prior consent of the Company.
(iii) give the Company not less than 14 days prior written notice of any proposed change in the Customer’s name and/or other changes in the Customer’s details (including but not limited to changes in the Customer’s address, facsimile number, email address, trading name or business practice).
(iv) be responsible for the full costs incurred by the Company (including actual legal fees and disbursements on a solicitor and client basis) in obtaining an order pursuant to section 167 of the PPSA.
(v) The Customer waives any rights it may have under sections 116,119, 120(2), 121, 125,126,127,129,131 and 132 of the PPSA upon enforcement.
(d) Pursuant to section 148 of the PPSA, unless otherwise agreed to in writing by the Company, the Customer waives the right to receive the verification statement in respect of any financing statement relating to the security interest.
(e) To the maximum extent permitted by law, the Customer waives its rights and with the Company’s agreement, contracts out of its rights under sections referred to in sections 107(2), 8(e) and (g) to (l) of the PPSA.
(f) The Customer agrees that nothing in section 113, 114 (1) (a), 117 (1) (c), 133 and 134 of the PPSA shall apply to these terms, and with the Company’s agreement, contracts out of such sections.
(g) The Customer and the Company agree that section 109(1) of the PPSA is contracted out of in respect of particular Goods if and only for as long as the Company is not the secured party with priority over all other secured parties in respect of those Goods.
(h) The Customer agrees that immediately on request by the Company the Customer will procure from any persons considered by the Company to be relevant to its security position such agreement and waivers as the Company may at any time require.
RECOVERY
9.1 The Company will keep a record of the transactions with the Customer by way of the said monthly statements. If the Customer disputes any such record of the transaction then written notice of that dispute must be given to the Company during the month succeeding that in which the transaction took place. Except from any proper correction made by the Company each monthly statement shall be taken as a complete and correct record and if the Company takes any action to recover the amount or amounts due by the Customer that action shall be for the whole of the transactions and therefore the total recorded in the current monthly statement from time to time, and the Company shall not be obliged to take that action for each individual transaction for which payment of the price and any liquidated damages has not been made.
9.2 In the event of non-payment or if any payment to the Customer’s account is overdue, the Company shall be entitled (without prejudice to any right it has in law or equity) to enter the place where the goods are stored, whether the Customer’s premises or the premises of a third party for the purposes of recovering and taking possession of the goods. The Company shall not be responsible for any damage reasonably caused in the course of recovery of goods supplied, whether in the possession of the Customer or a third party and the Customer indemnifies the Company in respect of any damage caused by removing the goods from the premises of a third party.
TITLE – OWNERSHIP
supplied or financed by the Company and goods to which such goods have been attached or incorporated.
(a) The Customer hereby acknowledges that these Terms and Conditions of Trade constitute a security agreement which creates a security interest in favour of the Company in all Goods previously supplied by the Company to the Customer (if any) and all after-acquired Goods supplied by the Company (or for the Customer’s account) to secure the payment from time to time and at a time, including future advances. The Customer agrees to grant a “Purchase Money Security Interest” to the Company, as that term is defined in the PPSA.
(b) The Customer acknowledges and agrees that by assenting to these terms the Customer grants a security interest (by virtue of the retention of title clause in the Terms and Conditions of Trade) to the Company and all Goods previously supplied by the Company to the Customer (if any) and all after-acquired Goods supplied by the Company to its Customer (or for the Customer’s account) and these terms shall apply notwithstanding anything express or implied to the contrary contained in the Customer’s purchase order.
(c) The Customer undertakes to:
WAIVER
10.1 The Company shall not be taken to have waived the term of this Agreement unless such waiver is in writing and signed by the chief executive or local branch manager of the Company. Any such waiver shall apply to and operate only in the particular transaction, dealing or matter in respect of which it is given.
ASSIGNMENT
11.1 The Company is entitled at any time to assign to any other person all or any part of any amount owing to the Company. Any such assignee shall be entitled to claim full rights of set-off or counterclaim against the Customer, its chargeholders or successors in respect of the debt or part thereof assigned.
ARBITRATION
12.1 Any difference or dispute arising out of this Agreement shall be settled by an arbitrator to be appointed by the parties and failing agreement upon such a person then an arbitrator shall be appointed by the president for the time being of the Manawatu District Law Society or the nominee of that President. The appointment of an arbitrator shall be deemed to be a submission to arbitration in accordance with the provision of the Arbitration Act 1996.
GUARANTOR
13.1 The Guarantor irrevocably and unconditionally in all circumstances without exception guarantees payment by the Customer of all amounts due by the Customer to the Company and unconditionally and irrevocably and in all circumstances indemnifies the Company from any loss, cost, or expense incurred by the Company as a consequence of any default on behalf of the Customer or the Guarantor pursuant to this Account Application and Terms of Trade.
PRIVACY ACT
14. The Customer authorizes the Company or its agent or duly authorised credit reporter to
(i) access, collect, retain and use any information about the Customer, for the purpose of assessing the Customer’s credit worthiness and/or for the purpose of marketing products and services to the Customer.
(ii) disclose information about the Customer, whether collected by the Company from the Customer directly or obtained by the Company from another source to any other credit provider or any credit reporting agency for the purpose of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.
(iii) where the Customer is an individual the authorities under this clause are authorities or consents for the purpose of the Privacy Act 1993.
(iv) the Customer shall have the right to request the Company for a copy of the information about the Customer retained by the Company and the right to request the Company to correct any incorrect information about the Customer held by the Company.
CONSUMER GUARANTEES ACT 1993 (The “1993 Act”)
15. Nothing in these terms is intended to have the effect of contracting out of the provisions of the 1993 Act except to the extent permitted by that Act. Where it is mandatory that the 1993 Act applies, these terms are modified to the extent which is necessary to give effect to that intention. No warranty or condition shall be implied against the Supplier under any statute, at common law or otherwise(except under any mandatory law) and no representation, express condition, warranty variation of these terms shall be binding on the Supplier unless it is in writing and signed by a duly authorised officer of the Supplier.
OTHER ACTS
16. The Sale of Goods Act 1908, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon the Company which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms, imposed on the Company the Company’s liability where it is allowed be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.
SUITABILITY AND NO CREDITS FOR RETURNED GOODS
17.1. No goods shall be returned unless the Supplier has specifically agreed with the Customer in writing to this effect in advance.
17.2 The Customer must satisfy itself that the Goods as ordered are fit and suitable for the purpose for which they are required. The Company makes no warranties or representation and expressly negates any implied or expressed condition that the Goods will be suitable for a particular purpose or use for which the Customer may use them. The Customer accepts all risks and responsibility for consequences arising from the use of the Goods, whether singularly or in combination with the other Goods.
FORCE MAJEURE
18. Neither the Supplier nor the Customer will be liable to the other for any breach of this Agreement by any extraordinary occurrences which are beyond the reasonable control of the party in question.
CLAIMS
19. Defective goods or goods which do not comply with the contract shall at the Supplier’s discretion be replaced, or the price refunded. Any right that the Customer may have to reject non-conforming or defective goods shall only be effective if the Customer notifies the Supplier in writing within ten working days following delivery and the Supplier is given the opportunity to inspect the goods. The Supplier accepts no liability for any Claim by the Customer or any other person including without limitation any Claim relating to or arising from:-
- Any conditions, warranties, descriptions, representations, conditions as to fitness or suitability for any purpose. Merchantability or otherwise express or implied by law, trade custom or otherwise; or
- Any representation, warranty, or agreement made by an agent or representative, which are not expressly confirmed by the Supplier in writing, and the Customer agrees to indemnify the Supplier against any such Claim.
In any event, the Supplier’s liability under any Claim shall not exceed the price of the goods.
VALIDITY
20. If any provision of this contract shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
