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Terms of Trade

Contents:

1. Price

2. Payment

3. Risk

4. Delivery

5. Retention of Title

6. Force Majeure

7. Alterations and Additions to Orders for Unmade Goods or Uncompleted Services

8. Cancellations and Deferments of Orders

9. Warranty

10. Specifications

11. Intellectual Property

12. Indemnity and Warranty by the Buyer

13. Other rights of the Seller

14. Errors and Omissions

15. Miscellaneous

In these Terms of Trade:

  • "Seller" means GroundCut Limited trading as GCE2002;
  • "Buyer" means the company or other entity named overleaf as the "Buyer ";
  • "Guarantor" means any third party who assumes liability on behalf of Buyer;
  • "Goods" means any "designs, images, products, documents, Garden sprays, machinery and any other materials" supplied by the Seller to the Buyer and in respect of each order of Goods from the Buyer accepted by the Seller means the Goods described in the invoice issued by the Seller in respect of the relevant order; and
  • "Services" means any "mowing, spraying, ground maintenance, travel or any other activities" carried out by the Seller for the Buyer and in respect of each order of Services from the Buyer accepted by the Seller means the Services described in the invoice issued by the Seller in respect of the relevant order; and
  • "GST" means Goods and Services Tax.
  • All Goods and Services supplied by the Seller are supplied subject to these terms and conditions of trade unless otherwise specifically agreed in writing by the Seller.
  • Any document emanating from the Buyer which is contrary to or inconsistent with any of these conditions shall be inapplicable and of no effect.
  • Seller may amend these terms of trade at any time without notification to any other party.
  • Any description of the Goods or Services that has been given is for identification purposes only and the use of that description does not mean that this Contract is a sale by description.

    These Terms of Trade apply to any order placed by a Buyer with Seller, unless Seller expressly agrees in writing that they do not apply.

1. Price [contents]

(a) The price of the Goods and Services will be the price current on any applicable quotation or the date of dispatch of the Goods or Services and may be altered without notice.

(b) The price of the Goods or Services excludes any amount payable in respect of GST,

(c) All prices quoted are exclusive of Goods and Services tax, customs duty, excise duty and all other governmental impost or a like nature becoming payable because of the sale of the Goods or Services and delivery of the Goods or Services to the Buyer.

(d) The Buyer shall pay for all such taxes, duties and other imposts.

(e) The prices quoted are based on the current cost to Seller of production and delivery of the Goods or Services and the quantities ordered or to be ordered by the Buyer. The Buyer will pay for any increase in cost to Seller resulting from any increase in cost or production or delivery or occasioned by a shortfall in quantities ordered by the Buyer.

2. Payment [contents]

a) Payment of the Goods and Services, plus GST, is to be paid in full within seven (7) days of receipt of invoice unless otherwise agreed in writing by the Seller.

b) The Seller reserves the right to require payment in cash before proceeding or proceeding further with an Order.

c) The Buyer may not deduct or withhold any amount (whether by way of set-off, counterclaim or otherwise) from any money owing to the Seller.

d) If full payment for any Goods or Services is not made to the Seller by the due date, the Buyer must pay, at the Seller's discretion (and without affecting any other right the Seller may have):

i) default interest at a rate equal to 5% above the current base lending rate from time to time set by the Seller's banker, from the date when the payment is due until the date when payment is actually made; and

ii) all expenses and costs (including legal costs as between solicitor and client) incurred by the Seller in obtaining or attempting to obtain a remedy for failure to pay.

e) The Seller may at any time require the Buyer to pay for Goods or Services by bank cheque or (in addition to the Seller's security interest in the Goods or Services) may require the Buyer to procure such guarantees and securities as the Seller considers necessary to secure to the Seller payment for the Goods or Services.

f) Seller may, without limiting any other remedy it may have, either terminate this Contract or suspend deliveries under it if the Buyer fails to pay for any one delivery by the due date. If at any time Seller believes the Buyer's financial status is unsatisfactory, Seller may require payment of the Contract Price in cash in advance, or security for the Contract Price such security to be to Seller's reasonable satisfaction in respect of all future deliveries and for any Goods or Services previously delivered.

3. Risk [contents]

a) Unless otherwise stated, the Buyer bears the risk of any loss or damage to the Goods due to any cause whatsoever after the Seller hands possession and control of the Goods to the Buyer or to a third party for transportation.

4. Delivery [contents]

(a) The Buyer in addition to paying for the Goods shall pay all costs of delivery.

(b) Where the Seller agrees to arrange delivery of the Goods to the Buyer's store or a site designated by the Buyer:

a. delivery will be considered to have been made when the Goods arrive at the Buyer's store or designated site;

b. if the Buyer fails or refuses to accept delivery at an agreed delivery time, delivery will be considered to have been effected in any event;

c. all claims for Goods damaged in transit must be made in writing and delivered to the Seller within seven days of delivery of the Goods;

d. the Buyer is responsible for ensuring, at its own cost, that all agreed delivery sites have unloading facilities together with labour and/or mechanical means to unload the Goods promptly, suitable access and area for unloading and suitable storage for the Goods.

e. Where the Buyer is to arrange for the Goods to be picked up from the Seller's premises:

i. delivery will be deemed to have been made when the Goods are available for collection by the Buyer;

ii. the Buyer or its authorised representative must sign the delivery docket before any Goods are collected by the Buyer.

f. All delivery dates quoted are estimates only and Seller shall not be liable for any failure to deliver, or for any delay in delivery, arising from any cause beyond Seller's control. The Buyer shall not be relieved of any obligation to accept or pay for the goods because of any delay in delivery or despatch.

g. Seller may deliver by instalments and each instalment shall be deemed to be sold under a separate Contract. If Seller fails to deliver an instalment the Buyer shall not be entitled to rescind or repudiate the Contract in respect of that instalment.

h. All claims for short or defective delivery must be made in writing and delivered to the Seller within fourteen days of delivery of the Goods. The Buyer may not cancel any order for short or defective delivery.

i. If the Buyer fails, or refuses to take delivery of any Goods at an agreed delivery time, or if an agreed delivery site does not have the unloading facilities, access or storage referred to in clause 4(b) (d), the Seller may charge the Buyer (without limiting any other rights the Seller may have) for any expenses or additional costs incurred by the Seller as a result.

5. Retention of Title [contents]

a) The goods delivered by Seller to the Buyer shall remain the sole and absolute property of Seller as legal and equitable owner until:

i) all amounts owing by the Buyer to the Seller in respect of the Goods have been paid;

ii) all other obligations of the Buyer to the Seller in respect of the Goods have been met.

iii) If payment is not made within a reasonable period, Seller may enter the premises of the Buyer, or the premises of a third party as the Buyer's invitee, and repossess the goods supplied. Repossession of the goods in this manner does not operate as a discharge from liability for any balance of account owing after credit has been given for the repossessed goods. Except as provided in this provision, the goods shall be at the Buyer's risk from the time of delivery to the Buyer.



b) Until ownership of the Goods passes, the Buyer:

i) must keep full and complete records of the Goods;

ii) must return the Goods immediately if requested to do so by the Seller following non-payment of any amount owing by the Buyer to the Seller or non-fulfilment of any other obligation of the Buyer to the Seller, without limiting any other right the Seller may have;

iii) give the Seller the right to inspect the Goods or any part of them at all reasonable times;

iv) must not change its name, address or contact details without providing the Seller with at least 30 days prior written notice;

v) waives its rights to:

1) receive a copy of any verification statement;

2) receive a copy of any financing change statement;

vi) If the Goods are for the Buyer's business use, the Buyer agrees, to the extent Part 9 of the Personal Property Securities Act 1999 ("PPSA ") applies, that it will have no rights under Part 9 of the PPSA. For example, but without limitation, the Buyer agrees not to:

1) receive any notice that the Seller intends to sell the Goods or take over the Goods on enforcement of the Seller's security interest;

2) give a notice of objection of the Seller taking over the Goods in satisfaction of any obligation owed by the Buyer to the Seller;

3) receive a statement of account on sale of the Goods;

4) recover any surplus on the sale of the Goods,

vii) must not give to the Seller a written demand or allow any other person to give the Seller a written demand or register or allow any other person to register a financing change statement under the PPSA.

c) The Buyer acknowledges that it has received value as at the date of first delivery of the Goods and has not agreed to postpone the time for attachment of the security interest granted under these terms and conditions.

6. Force Majeure [contents]

a) Seller may suspend or cancel deliveries without liability in the event of an Act of God, war, riot, fire, explosion, accident, flood, sabotage, inability to obtain fuel, power, raw materials, labour, containers or transportation facilities, governmental laws, regulations, orders or action, breakage or failure of machinery or apparatus, national defence requirements or any other event beyond the reasonable control of Seller or in the event of labour trouble, strike, lockout or injunction (whether or not such labour event is within the reasonable control of Seller).

7. Alterations and Additions to Orders for Unmade Goods or Uncompleted Services [contents]

a) Alterations and additions to orders for Goods or Services that the Seller has not been begun to prepare at the time notice of the desired alteration or addition is received, may be accepted or rejected at the sole discretion of the Seller. The Seller has the right, where it chooses to accept and perform the alteration or amendments desired, to amend the previously agreed terms of production to allow for any increased costs to be incurred and longer production times required as a result of the amendment or alteration.

b) Where a Buyer wishes to alter or amend an existing order where the Goods or Services are already in production, the Seller may at its sole discretion choose whether to accept or reject the proposed alteration or amendments. If the Seller chooses to reject the amendments or alterations the Buyer may cancel the order in accordance with clause 8. The Seller has the right, where it chooses to accept and perform the alteration or amendments desired, to amend the previously agreed terms of production to allow for any increased costs to be incurred and longer production times required as a result of the amendment or alteration.

8. Cancellations and Deferments of Orders [contents]

a) Cancellation of any order may be made at any time prior to delivery subject to the following terms:

i) where the Goods or Services are in the production process or the production process is complete, the Buyer shall pay such amount up to the full sale value of the Goods or Services, less the scrap value of any materials, as the Seller shall stipulate;

ii) where production of the Goods or Services has not begun, but the Seller has incurred costs in sourcing resources or producing materials, the Buyer shall reimburse all such costs to the Seller less the resale value of the materials as the Seller shall stipulate.

b) There is no penalty for cancellation of an order for Goods wholly supplied from inventory when such cancellation is given on 14 days notice. If less than 14 days notice is given, the Seller may charge the Buyer (without limiting any other right the Seller may have) for any expenses or additional costs incurred by the Seller as a result.

c) A deferment of an order may be accepted or declined by the Seller in its absolute discretion. If accepted, the price of the Goods or Services so deferred shall be the price as at the date of acceptance of the deferment by the Seller or at the date of the actual delivery of the Goods or Services, whichever is the greater. In addition the Buyer shall, if required by the Seller, pay interest to the Seller on the outstanding price that is determined as aforesaid at the rate referred to in clause 2(d) (i) for the period from the end of the original estimated delivery week until the date of actual delivery.

9. Warranty [contents]

a) All warranties, descriptions, representations or conditions whether implied by law, trade, custom or otherwise, and all other liability of the Seller, whether in tort (including negligence), contract or otherwise is, expressly excluded to the fullest extent permitted by law.

b) Any warranties, descriptions, representations or conditions expressed or implied by the Fair Trading Act 1986 will not come within the exclusion in clause 9(a),

c) Insofar as the Seller may be liable notwithstanding clause 9(a), to the extent permitted by law and (subject to clause 9(d), the total liability of the Seller whether in tort (including negligence), contract or otherwise for any loss, damage or injury arising directly or indirectly from any defect in or non-compliance of any Goods or Services or any other breach of the Seller's obligations is limited to the lesser of:

i) the price of the Goods or Services complained of;

ii) the cost of repairing or replacing the defective Goods; or

iii) the actual loss or damage suffered by the Buyer.

d) Except where statute expressly requires otherwise (and subject to clause 9(f), the Seller is not liable in any event for any loss of profits, consequential, indirect or special damage, loss or injury of any kind suffered by the Buyer or any other person.

e) Subject to clause 9(f), while the Seller will make every effect to ensure the accuracy of any advice, recommendation, information, assistance or service provided by the Seller in relation to the Goods or Services or their use or application, the Seller does not accept any liability or responsibility in respect of any advice, recommendation, information, assistance or service.

f) If the Buyer is a "consumer" under the Consumer Guarantees Act 1993 (Act), the Act will not apply where the Buyer acquires or holds itself out as acquiring the Goods or Services for the purposes of a business.

g) Where the Buyer is acquiring the Goods or Services for the purpose of re-supplying them in trade, the Buyer will:

i) include a provision in its terms of sale to the effect that the Act will not apply where a purchaser acquires or holds itself out as acquiring the Goods or Services for the purposes of a business;

ii) notify its purchasers of the effect of clause 9(g) (i); and

iii) indemnify the Seller for and against any liabilities, losses, damages, claims, costs or expenses of whatever kind and nature incurred by the Seller as a result of the Buyer failing to take the action required under this clause 9(g) (i) .

10. Specifications [contents]

a) The Seller's invoices shall be conclusive evidence of any classification numbers, measurements, weights or volumes of the Goods or Services delivered, shipped or transported.

b) All Goods or Services are sold subject to:

i) the Seller's normal tolerances, variations and limitations in respect of dimension, weight, straightness, mechanical properties, surface and internal conditions, chemical composition and quality; and

ii) diversions from such tolerances, variations and limitations consistent with practical testing and inspection methods.

c) Information regarding specifications, colours, weights, measurements, powers, capacities, performance and other data generally relating to the Seller's Goods and Services contained in advertisements, catalogues, price lists, illustrations or other similar matter submitted to the Buyer by the Seller whilst given in good faith must be regarded only as approximate and intended to present to the Buyer a general guide, the accuracy of which the Buyer must test for itself. The Buyer shall be deemed to rely upon its own judgement as to the nature and quality of the Seller's Goods or Services and the suitability for Buyer's purpose and not upon any representation made by the Seller, Seller's servants or agents orally or in writing (including any advertisement).

d) Following advice to the Buyer, the Seller reserves the right to substitute items of a similar quality and performance and to alter or modify Goods or Services where necessary.

11. Intellectual Property [contents]

a) Unless otherwise agreed in writing, All intellectual property (including but not limited to such things as any information, designs, images, techniques or methods) procured or produced by Seller shall remain the property of Seller or any Supplier entitled to it, and neither Seller nor its Suppliers transfer any right, title or interest in the intellectual property to Buyer.

b) If any information, design, image, technique or method is supplied by the Buyer or produced or obtained exclusively for the Buyer, it will be used to supply only the Buyer for whom they were manufactured or any third party only with that Buyer's written authority PROVIDED HOWEVER that nothing contained in these terms and conditions shall prevent the Seller from supplying any third party at its request and without reference to the Buyer with any Goods or Services that encompasses such information, designs, images, techniques or methods which are identical or similar to those supplied by the Buyer.

c) Buyer must not use any trademarks that are the property of Seller or its Suppliers, or any similar words or marks, or any combination of words or images that include any of those trademarks or any similar words or marks, except to the extent authorised by Seller in writing.

d) Buyer agrees to utilise the Goods or Services only under the trademarks under which they are supplied by Seller, and under no circumstances shall Buyer apply any of the Sellers trademarks to any product which is not a genuine branded product supplied to Buyer by Seller.

e) Buyer will not cause or permit anything that may interfere with, damage or endanger the trademarks or other intellectual property rights of Seller or its Suppliers, or assist or allow others to do so.

f) Buyer must advise Seller immediately when Buyer becomes aware of any unauthorised use or attempted use by any person of the trademarks or other intellectual property rights of Seller or it's Suppliers.

g) If Buyer's account with Seller is terminated, Buyer must immediately discontinue use of any of the trademarks that are the property of Seller in any sign, advertising or product and thereafter buyer shall not use those trademarks directly or indirectly in connection with Buyer's business.

h) Buyer agrees to ensure that all Confidential Information given by Seller to buyer are made available to Buyer's employees only on the basis that those employees at all times maintain strict confidentiality.

i) This clause shall survive the termination of the Agreement.

12. Indemnity and Warranty by the Buyer [contents]

a) The Buyer shall indemnify and keep the Seller indemnified from and against any loss, liability, claim, suit and costs relating to the production and/or design of the Goods and packages or containers relating to the Goods if the Goods, packages or containers are required by the Buyer to be made in accordance with the Buyer's design or specification.

b) The Buyer warrants, having made reasonable enquiries that:

i) Any Goods or Services which have been supplied or are proposed to be supplied to the Buyer and which has been endorsed by the Buyer;

ii) Goods or Services produced at Buyers request shall not infringe upon the rights of any third party (whether copyright, registered design, patent, trademark, confidential information or otherwise) or breach any applicable law.

c) In the event of any claim, action, suit, demand, order for costs (including legal expenses on a solicitor and client basis) or damages or an account of profits referable to the rights and/or laws referred to in paragraph (b) of this clause 12, being made or brought against the Seller, the Buyer shall indemnify and keep the Seller indemnified from and against the same.

d) Should the Seller:

i) have reason to believe the Buyer is in breach of its warranty in paragraph (b); or

ii) become aware of circumstances whereby the Seller can claim under the indemnities in paragraphs (a) or (c) of this clause 12, the Seller may (without having to give notice thereof to the Buyer) cancel or suspend all further manufacture and deliveries of the Goods or Services or signage.

e) Seller makes no representation of any kind expressed or implied that the Goods or Services sold under this Contract or the use of such Goods or Services, or articles made from the Goods or Services, either alone or in conjunction with other substances will not infringe any patent or trademark rights. The Buyer will notify Seller immediately of any claim or suit involving the Buyer in which any such infringement is alleged and if Seller considers itself to be affected it shall be entitled completely to control the defence or compromise of any such allegation or infringement.

13. Other rights of the Seller [contents]

a) If any amount payable by the Buyer to the Seller is overdue or the Buyer fails to meet any other obligation to the Seller (whether in relation to the sale of Goods or Services or otherwise) or if any distress or execution shall be levied on any of the Buyer's property or if the Buyer shall become insolvent, have a receiver appointed in respect of all or some of its assets, make or offer to make any arrangement or composition with creditors or commit any act of bankruptcy or become bankrupt or (if the Buyer is a limited liability company) if any resolution or appointment of a liquidator to wind up its business is presented or passed or a receiver is appointed of such Seller's undertaking, property or assets or any part thereof or the ownership or effective control of the Buyer is transferred or, in the Seller's opinion, the nature of the Buyer's business is materially altered then:

i) the Seller may cancel any outstanding order with the Buyer or all or any part of any contract with the Buyer which remains unperformed in addition to and without prejudice to its other remedies and;

ii) any amounts outstanding with the Seller shall, whether or not due for payment, immediately become due and payable.

iii) the Seller may reclaim any Goods or Services in the Buyer's possession or control and dispose of them for Seller's own benefit and for that purpose the Seller may, without notice, enter directly or by its agents on any premises where it believes Goods or Services may be stored, without in any way being liable to any person. The rights of the Seller under this paragraph shall be exercisable without prejudice to all other rights and remedies of the Seller in consequence of the default or defaults.

14. Errors and Omissions [contents]

a) The Seller is not bound by any error or omission on any quotation, invoice, order form or other document or statement issued by the Seller

15. Miscellaneous [contents]

a) These terms and conditions shall be governed in accordance with the laws of New Zealand and the parties agree to submit to the exclusive jurisdiction of the Courts of New Zealand. This Contract constitutes the full understanding of the parties and is a complete and exclusive statement of the terms of their agreement with respect to its subject matter. Except as provided in this Contract and agreed in writing, no conditions, understanding or agreement purporting to modify or vary the terms of this Contract shall be binding on Seller.

b) If Seller fails to enforce any terms or to exercise its rights under these terms of trade at any time, Seller has not waived those rights.

c) If any provision of these terms of trade 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 of trade.

d) If at any time the Seller does not enforce any of these terms or grants the Buyer time or other indulgence, the Seller shall not be construed as having waived that term or condition or its rights to later enforce that or any other term or condition.

e) Testing and inspection, other than that normally undertaken by the Seller, when specified by the Buyer or its agents shall take place at the Seller's premises and the results of such testing and inspection shall be final and binding on the parties. The Buyer shall pay a standard charge for such testing and inspection.

f) The Buyer is responsible for disposing, at its own cost, of all materials used in the packaging or delivery of Goods or Services supplied by the Seller.

g) The Buyer is to execute documents and do such further acts as may be required by the Seller to register the Seller's security interest under the PPSA or for any other purpose whatsoever.

h) This Contract is personal to the Buyer. The Buyer shall not assign its rights or delegate its performance under the Contract without the consent in writing of Seller.

i) Seller may at its own discretion and without notice to the Buyer subcontract the whole or any part of the production of the Goods or Services sold or services rendered under this Contract.

j) No waiver by Seller with respect to any breach or default or any right or remedy shall be deemed to constitute a continuing waiver or any other breach or default or any other right or remedy unless the same be expressed in writing and signed on behalf of Seller.

k) The Buyer acknowledges and accepts that Seller may, at its sole discretion, collect information about the Buyer for the purposes of credit approval.

l) In consideration of Seller entering into this Contract the Guarantor hereby unconditionally and irrevocably guarantees to Seller the due and punctual performance and observance by the Buyer of its obligations under this Contract and notwithstanding any other provision in this Contract this guarantee shall not be affected by the granting of time or other indulgence on the part of Seller.

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Groundcut Limited