Transpread International Limited – Terms & Conditions of Trade

1.       Definitions

1.1     “Selle means  Transpread  International  Limited,  its  successors  and assigns or any person acting on behalf of and with the authority of Trasnpread International Limited.

1.2     “Custome means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.

1.3     “Goods”  means  all  Goods  or  Services  supplied  by  the  Seller  to  the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).

1.4     “Price” means the Price payable for the Goods as agreed between the Seller and the Customer in accordance with clause 5 below.

2.       Consumer Guarantees Act 1993

2.1     If  the  Customer  is  acquiring  Goods  for  the  purposes  of  a  trade  or business the   Custome acknowledge tha th provisions  o the Consumer Guarantees Act 1993 do not apply to the supply of Goods by the Seller to the Customer.

3.       Acceptance

3.1     The Customer is taken to have exclusively accepted and is immediately bound,  jointly  and  severally,  by  these  termand  conditionif  the Customer places an order for or accepts delivery of the Goods.

3.2     These  terms  and  conditionmay  only  be  amended  with  the  Seller’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and the Seller.

4.       Change in Control

4.1     The Customer shall give the Seller not less than fourteen (14) days prior written notice oany proposed change of  ownership othe Customer and/or  any  other  change  in  the  Customer’details  (including  but  not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by the Seller as a result of the Customer’s failure to comply with this clause.

5.       Price and Payment

5.1     At the Seller’s sole discretion the Price shall be either:

(a) as indicated on any invoice provided by the Seller to the Customer; or

(b) according to the Seller’s current price list as at the date of delivery of the Goods; or

(c) the Seller’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.

5.2     The Seller reserves the right to change the Price:

(a) if  variation  to  the  Goods  which  are  to  be  supplied  is requested  (including  any  applicable  designor specifications); or

(b) in the event of increases to the Seller in the cost of labour or

materials, or fluctuations in currency exchange rates, which are beyond the Seller’s control.

5.3     At the Seller’s sole discretion a non-refundable deposit may be required.

5.4     Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by the Seller, which may be:

(a) on delivery of the Goods;

(b) before delivery of the Goods;

(c) by  way  of  instalments  in  accordance  with  the  Seller’s  payment schedule;

(d) for certain approved Customer’s, due twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;

(e) the date specified on any invoice or other form as being the date for payment; or

(f)  failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by the Seller.

5.5     Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to 3% of the Price), or by any other method as agreed to between the Customer and the Seller.

5.6     Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to the Seller an amount equal to any GST the Seller must pay for any supply by the Seller under this or any other agreement fothe sale of  the Goods.  The Customemust  pay GST, without deduction or set off of any other amounts, at the same time and on  the  same  basis as  the  Customer  pays  the  Price.  In  addition  the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

6.       Delivery of Goods

6.1     Delivery Delivery”) of the Goods is taken to occur at the time that:

(a) the Customer or the Customer’s nominated carrier takes possession of the Goods at the Seller’s address; or

(b) Dispatch from the Sellers address

6.2     At the Seller’s sole discretion, the cost of delivery is in addition to the Price.

6.3     The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then the Seller shall be entitled to charge a reasonable fee for redelivery and/or storage.

6.4     Any time or date given by the Seller to the Customer is an estimate only. The Customer must still accept delivery of the Goods even if late and the Seller will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.

7.       Risk

7.1     Risk of  damage to or loss of  the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.

7.2     If any of the Goods are damaged or destroyed following delivery but prior

to ownership passing to the Customer, the Seller is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.

7.3     If the Customer requests the Seller to leave Goods outside the Seller’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk. 

8.       Title

8.1     The Seller and the Customer agree that ownership of the Goods shall not pass until:

(a) the Customer has paid the Seller all amounts owing to the Seller; and

(b) the Customer has met all of its other obligations to the Seller.

8.2     Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.

8.3     It is further agreed that:

(a) until ownership of the Goods passes to the Customer in accordance with clause 8.1 that the Customer is only a bailee of the Goods and must return the Goods to the Seller on request.

(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for the Seller and must pay to the Seller the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.

(c) th Custome mus no sell dispose o otherwis part   with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for the Seller and must pay or deliver the proceeds to the Seller on demand.

(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Seller and must sell, dispose of or return the resulting product to the Seller as it so directs.

(e) the Customer irrevocably authorises the Seller to enter any premises where the Seller believes the Goods are kept and recover possession of the Goods.

(f)  the Seller may recover possession of any Goods in transit whether or not delivery has occurred.

(g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Seller.

(h) the Seller may commence proceedings to recover the Price of the Goodsold notwithstanding that  ownership of  the  Goods has not passed to the Customer.

9.       Personal Property Securities Act 1999 (“PPSA”)

9.1     Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:

(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and

(b) a security interest is taken in all Goods previously supplied by the Seller to the Customer (if any) and all Goods that will be supplied in the future by the Seller to the Customer.

9.2     The Customer undertakes to:

(a) sign anfurther  documents and/oprovide any further  information (such information to be complete, accurate and up-to-date in all respects) which the Seller may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;

(b) indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;

(c) not  register  a  financing  change  statement  or  a  changdemand without the prior written consent of the Seller; and

(d) immediately advise the Seller of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.

9.3     The Seller and the Customer agree that nothing in sections 114(1)(a), 133

and 134 of the PPSA shall apply to these terms and conditions.

9.4     The Customer waives its rights as a debtor under sections 116, 120(2),

121, 125, 126, 127, 129, 131 and 132 of the PPSA.

9.5     Unless otherwise agreed to in writing by the Seller, the Customer waives

its right to receive a verification statement in accordance with section 148 of the PPSA.

9.6     The Customer shall unconditionally ratify any actions taken by the Seller under clauses 9.1 to 9.5.

10.     Security and Charge

10. In consideration of the Seller agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land,  realtor otheassets capable of  being charged,  owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

10. The Customer indemnifies the Seller from and against all the Seller’s

costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Seller’s rights under this clause.

10. The Customer irrevocably appoints the Seller and each director of the Seller  as  the  Customer’s  true  and  lawful  attorney/s  to  perform  all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Customer’s behalf.

11.     Defects

11.1   The  Customer  shall  inspect  the  Goods  on  delivery  and  shall  within fourteen (14) days of delivery (time being of the essence) notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote.   The Customer shall afford the Seller an opportunity  tinspect  the  Goods  within  a  reasonable  timfollowing delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Seller has agreed in writing that the Customer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods or repairing the Goods.

11. The return of Goods will only be accepted provided that:

(a) the Customer has complied with the provisions of clause 11.1; and

(b) the Seller has agreed in writing to accept the return of the Goods; and

(c) the Goods are returned at the Customer’s cost within fourteen (14)

days of the delivery date; and

(d) the Seller will not be liable for Goods which have not been stored or

used in a proper manner; and

(e) the Goods are returned in the condition in which they were delivered

and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.

11. The Seller may (in its discretion) accept the return of Goods for credit, but this may incur a reasonable handling fee, plus any freight. Subject toclauses 11.1 and 11.2, the Seller will under no circumstances accept the return   o non-stocklis items o Goods  made   to   the   Customer’s specifications, for credit.

12.     Warranty

12.1   Subject to the conditions of warranty set out in clause 12.2, the Seller warrants that if any defect in any workmanship of the Seller becomes apparent and is reported to the Seller within twelve (12) months of the date of delivery (time being of the essence) then the Seller will either (at the Seller’s sole discretion) replace or remedy the workmanship.

12. The conditions applicable to the warranty given by clause 12.1 are:

(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:

(i)  failure on the part of the Customer to properly maintain the Goods; or

(ii)  failure on the part of the Customer to follow any instructions or guidelines provided by the Seller; or

(iii) any use of the Goods otherwise than for any application specified on a quote or order form; or

(iv) the  continued  use  of  the  Goods  after  any  defect  becomes apparent or would have become apparent to a reasonably prudent operator or user; or

(v) fair wear and tear, any accident or act of God.

(b) thwarranty  shall  ceasanthe  Seller  shall  thereafteino circumstances be liable under the terms of the warranty if:

(i the workmanship is repaired, altered or overhauled without the

Seller’s consent;

(ii)  any identification number(s) included in, or on, the Goods have been altered or removed.

(c) in respect of all claims the Seller shall not be liable to compensate the Customer  for  any  delay  in  either  replacing  or  remedying  the workmanship or in properly assessing the Customer’s claim. (d) the warranty is non-transferable.

12. For Goods not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller shall  not  be  bound  by  nor  be  responsible  for  any  term,  condition, representation  or  warranty  other  than  that  which  is  given  by  the manufacturer of the Goods.

12. In the case of second hand Goods, the Customer acknowledges that he has had full opportunity to inspect the same and that he accepts the same with all faults and that no warranty is given by the Seller as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Seller shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.

13.     Intellectual Property

13. Where the Seller has designed, manufactured or modified Goods for the Customer, then the copyright in any designs, drawings and documents shall remain the property of the Seller.

13.2   The Customer warrants that all designs, specifications or instructions given to the Seller will not cause the Seller to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Seller against any action taken by a third party against the Seller in respect of any such infringement.

13. The Customer agrees that the Seller may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, photographs, digital media or Goods which the Seller has created for the Customer.

14.     Default and Consequences of Default

14.1   Interest  on  overdue  invoices  shall  accrue  daily  from  the  date  when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Seller’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

14. If the Customer owes the Seller any money the Customer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Seller’s collection agency costs, and bank dishonour fees).

14. Without prejudice to any other remedies the Seller may have, if at any

time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions the Seller may suspend or terminate the supply of Goods to the Customer. The Seller will not be liable to the Customer foanlosor  damage the Customesuffers because the Seller has exercised its rights under this clause.

14. Without prejudice to the Seller’s other remedies at law the Seller shall be

entitled to cancel all or any part oany order of the Customer which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable if:

(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Customer will be unable to make a payment when it falls due;

(b) the  Customer  becomeinsolvent,  convenes  a  meeting  with  its creditors or proposes or enters into an arrangement with creditors, or

makes an assignment for the benefit of its creditors; or

(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

15.     Cancellation

15.1   The Seller may cancel any contract to which these terms and conditions apply or  cancel  delivery of  Goods at  antime before the Goods are delivered by giving written notice to the Customer. On giving such notice the Seller shall repay to the Customer any money paid by the Customer for the Goods. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation.

15. In the event that the Customer cancels delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by the Seller as a direct result of the cancellation (including, but not limited to, any loss of profits).

15. Cancellation of orders for Goods made to the Customer’s specifications,

or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

16.     Unpaid Seller’s Rights

16.1   Where  the  Customer  has  left  any  item  with  the  Seller  for  repair, modification, exchange, or for the Seller to perform any other service in relation to the item, is left with the Seller at the Customer’s sole risk. It shall be the Customer’s responsibility to ensure such items are insured adequately, or at all. Furthermore, where the Seller has not received or been tendered the whole of any moneys owing to it by the Customer, the Seller shall have, until all moneys owing to the Seller are paid:

(a) a lien on the item; and

(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.

16. The  lien  of  the  Seller  shall  continue  despite  the  commencement  of

proceedings, or judgment for any moneys owing to the Seller having been obtained against the Customer.

17.     Customer’s Disclaimer

17.1   The  Customer  hereby  disclaims  any  right  to  rescind,  or  cancel  any contract with the Seller or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by the Seller and the Customer acknowledges that the Goods are bought relying solely upon the Customer’s skill and judgment.

18.     Privacy Act 1993

18. The Customer authorises the Seller or the Seller’s agent to:

(a) access, collect, retain and use any information about the Customer;

(i)  (including  any  overdue  finebalance  information  held  by  the Ministry of Justice) for the purpose of assessing the Customer’s creditworthiness; or

(ii)  for  the  purpose  of  marketing  products  and  services  to  the Customer.

(b) disclose information about the Customer, whether collected by the

Seller from the Customer directly or obtained by the Seller from any other  source,  to  any  other  credit  provideor  any  credit  reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.

18. Where the Customer is an individual the authorities under clause 18.1 are authorities or consents for the purposes of the Privacy Act 1993.

18.3   The Customer shall have the right to request the Seller for a copy of the information about the Customer retained by the Seller and the right to request the Seller to correct any incorrect information about the Customer held by the Seller.

19.     General

19.1   The failure by the Seller to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect  the  Seller’s rightsubsequently  enforce that  provision.  If  any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity,  existence,  legalitand enforceabilitof  the remaining provisions shall not be affected, prejudiced or impaired.

19. These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.

19.3   The Seller shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit)

suffered by the Customer arising out of a breach by the Seller of these terms and conditions (alternatively the Seller’s liability shall be limited to damages which under no circumstances shall exceed the Price of the

Goods).

19.4   The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Seller nor to withhold payment of any invoice because part of that invoice is in dispute.

19.5   The Seller may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.

19.6   The  Customer  agrees  that  the  Seller  may  amend  these  terms  and conditions at any time. If the Seller makes a change to these terms and conditions, then that change will take effect from the date on which the Seller notifies the Customer of such change. The Customer will be taken

to have accepted such changes if the Customer makes a further request for the Seller to provide Goods to the Customer.

19. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

19. The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.

        

TRANSPREAD COMMITMENT

Give the end user of fertilizer

Give the owner of the equipment

Give the operator