Terms of Trade | Advanced Grower Products (NZ) Ltd

Definitions
1. “AGP” shall mean Advanced Grower Products (NZ) Limited its successors and assigns or any person acting on behalf of and with the authority of Advanced Grower Products (NZ) Limited.
2. “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by AGP to the Customer.
3. “Guarantor” shall mean that person (or persons) who agrees to be liable for the debts of the Customer on a principal debtor basis.
4. “Goods” shall mean all Goods supplied by AGP to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and includes Goods described on any invoices, quotation, work authorisation or any other forms as provided by AGP to the Customer.
5. “Services” shall mean all services supplied by AGP to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
6. “Price” shall mean the price payable for the Goods as agreed between AGP and the Customer in accordance with clause 3 of this contract.
Acceptance
1. Any instructions received by AGP from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by AGP shall constitute acceptance of the terms and conditions contained herein.
2. Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
3. Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of AGP.
4. The Customer shall give AGP not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by AGP as a result of the Customer’s failure to comply with this clause.
5. Goods are supplied by AGP only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
6. The Customer acknowledges and accepts that the Goods are provided by AGP on the basis that the Goods are used by the Buyer for legitimate and legal horticultural purposes. The Customer agrees to indemnify AGP against any loss damage or claim that may arise as a result of the Customer’s use of the Goods in an illegal manner.
Price And Payment
1. At AGP’s sole discretion the Price shall be either:
  - as indicated on invoices provided by AGP to the Customer in respect of Goods supplied; or
  - AGP’s current price at the date of delivery of the Goods according to AGP’s current Price list; or
  - AGP’s quoted Price (subject to clause 3.2) which shall be binding upon AGP provided that the Customer shall accept AGP’s quotation in writing within thirty (30) days.
2. AGP reserves the right to change the Price in the event of a variation to AGP’s quotation.
3. The Client acknowledges that the Price may increase as a result of variations in foreign currency rates of exchange and/or international freight and insurance charges for foreign sourced components. Any variation from AGP’s quoted Price will be detailed in writing and will be shown as variations on the invoice.
4. Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the delivery.
5. Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Customer and AGP.
6. GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
Delivery Of Goods
1. At AGP’s sole discretion delivery of the Goods shall take place when the Customer takes possession of the Goods at the Customer’s nominated address.
2. At AGP’s sole discretion the costs of delivery are in addition to the Price and for the Customer’s account.
3. The Customer shall make all arrangements necessary to take delivery 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 AGP shall be entitled to charge a reasonable fee for redelivery.
4. AGP may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
5. The failure of AGP to deliver shall not entitle either party to treat this contract as repudiated.
6. AGP shall not be liable for any loss or damage whatsoever due to failure by AGP to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of AGP.
Risk
1. If AGP retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
2. If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, AGP is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by AGP is sufficient evidence of AGP’s rights to receive the insurance proceeds without the need for any person dealing with AGP to make further enquiries.
Customer’s Disclaimer
1. The Customer hereby disclaims any right to rescind, or cancel any contract with AGP or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by AGP and the Customer acknowledges that the Goods are bought relying solely upon the Customer’s skill and judgment.
Title
1. AGP and Customer agree that ownership of the Goods shall not pass until:
  1. the Customer has paid AGP all amounts owing for the particular Goods; and
  2. the Customer has met all other obligations due by the Customer to AGP in respect of all contracts between AGP and the Customer.
2. Receipt by AGP 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 and until then AGP’s ownership or rights in respect of the Goods shall continue.
3. It is further agreed that:
  1. where practicable the Goods shall be kept separate and identifiable until AGP shall have received payment and all other obligations of the Customer are met; and
  2. until such time as ownership of the Goods shall pass from AGP to the Customer AGP may give notice in writing to the Customer to return the Goods or any of them to AGP. Upon such notice being given the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
  3. the Customer is only a bailee of the Goods and until such time as AGP has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to AGP for the Goods, on trust for AGP; and
  4. until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that AGP will be the owner of the end products; and
  5. if the Customer fails to return the Goods to AGP then AGP or AGP’s agent may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Goods are situated and take possession of the Goods, and AGP will not be liable for any reasonable loss or damage suffered as a result of any action by AGP under this clause.
Personal Property Securities Act 1999 (“PPSA”)
1. Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:
  1. these terms and conditions constitute a security agreement for the purposes of the PPSA; and
  2. a security interest is taken in all Goods previously supplied by AGP to the Customer (if any) and all Goods that will be supplied in the future by AGP to the Customer.
2. The Customer undertakes to:
  1. sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which AGP may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
  2. indemnify, and upon demand reimburse, AGP 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;
  3. not register a financing change statement or a change demand without the prior written consent of AGP; and (d) immediately advise AGP 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.
3. AGP and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
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.
5. Unless otherwise agreed to in writing by AGP, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
6. The Customer shall unconditionally ratify any actions taken by AGP under clauses 8.1 to 8.5.
Security And Charge
1. Despite anything to the contrary contained herein or any other rights which AGP may have howsoever:
  1. where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/ or several interest in the said land, realty or any other asset to AGP or AGP’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that AGP (or AGP’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
  2. should AGP elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify AGP from and against all AGP’s costs and disbursements including legal costs on a solicitor and own client basis.
  3. the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint AGP or AGP’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 9.1.
Defects
1. The Customer shall inspect the Goods on delivery and shall immediately notify AGP of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford AGP an opportunity to inspect the Goods within twenty four (24) hours of 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 AGP has agreed in writing that the Customer is entitled to reject, AGP’s liability is limited to either (at AGP’s discretion) replacing the Goods or repairing the Goods.
2. Goods will not be accepted for return other than in accordance with 10.1 above.
Consumer Guarantees Act 1993
1. If the Customer is acquiring Goods for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by AGP to the Customer.
Default & Consequences Of Default
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 AGP’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
2. In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by AGP.
3. If the Customer defaults in payment of any invoice when due, the Customer shall indemnify AGP from and against all costs and disbursements incurred by AGP in pursuing the debt including legal costs on a solicitor and own client basis and AGP’s collection agency costs.
4. Without prejudice to any other remedies AGP may have, if at any time the Customer is in breach of any obligation (including those relating to payment) AGP may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. AGP will not be liable to the Customer for any loss or damage the Customer suffers because AGP has exercised its rights under this clause.
5. If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
6. Without prejudice to AGP’s other remedies at law AGP shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to AGP shall, whether or not due for payment, become immediately payable in the event that:
  1. any money payable to AGP becomes overdue, or in AGP’s opinion the Customer will be unable to meet its payments as they fall due; or
  2. the Customer becomes insolvent, 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
  3. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer
Cancellation
1. AGP may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice AGP shall repay to the Customer any sums paid in respect of the Price. AGP shall not be liable for any loss or damage whatsoever arising from such cancellation.
2. In the event that the Customer cancels delivery of the Goods the Customer shall be liable for any loss incurred by AGP (including, but not limited to, any loss of profits) up to the time of cancellation.
Privacy Act 1993
1. The Customer and the Guarantor/s (if separate to the Customer) authorises AGP to:
  1. collect, retain and use any information about the Customer and/or Guarantors, for the purpose of assessing the Customer’s and/or Guarantors creditworthiness or marketing products and services to the Customer and/or Guarantors; and
  2. disclose information about the Customer and/or Guarantors, whether collected by AGP from the Customer and/or Guarantors directly or obtained by AGP from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer and/or Guarantors.
2. Where the Customer and/or Guarantors are an individual the authorities under clause 14.1 are authorities or consents for the purposes of the Privacy Act 1993.
3. The Customer and/or Guarantors shall have the right to request AGP for a copy of the information about the Customer and/or Guarantors retained by AGP and the right to request AGP to correct any incorrect information about the Customer and/or Guarantors held by AGP.
General
1. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
2. 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.
3. AGP 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 AGP of these terms and conditions.
4. In the event of any breach of this contract by AGP the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
5. 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 AGP nor to withhold payment of any invoice because part of that invoice is in dispute.
6. AGP may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
7. AGP reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which AGP notifies the Customer of such change.
8. The provisions of the Contractual Remedies Act 1979 shall apply to this contract as if section 15(d) of the Act which states that nothing in the Act shall affect the Sale of Goods Act 1908, were omitted from the Contractual Remedies Act 1979.
9. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
10. The failure by AGP to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect AGP’s right to subsequently enforce that provision.

Brochures & Guides