Terms of Trade
1. General
1.1 If there is any conflict between an order submitted by you and these terms and conditions, these terms and conditions prevail unless otherwise expressly agreed in writing and signed by or on behalf of SPN Nursery Ltd (in these Terms of Trade called "the company”).
1.2 Any previous terms and conditions agreed to by you and the company are overridden by the terms and conditions contained herein.
2. Payments
2.1 Unless otherwise agreed in writing all payments must be made to the company within 30 days of either the receipt of your shipment or the receipt of your invoice from the company, whichever comes first.
2.2 Interest at 24% per annum calculated on a daily basis is payable on any late payment (both before and after the date of any judgment) from the date payment was due until the date payment is received in full by the company. You are also liable to pay all expenses and legal costs of the company (calculated as between solicitor and client) in relation to obtaining remedy of the failure to comply.
2.3 The company may refuse to deliver any goods if there are any outstanding monies owing to the company by you.
2.4 The remedy provided in subclause 2.2 is without prejudice to the company's other rights in respect of non-payment or late payment.
2.5 You are not entitled to withhold payment or to make any deductions from the purchase price whether by way of set off, counterclaim or other legal or equitable claim without the prior written consent of the company.
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3. Price
3.1 The price agreed for the purchase and delivery of any goods is based upon rates and costs as at the date of delivery of those goods. The price at the time of order or confirmation of order may be increased by any factors affecting the cost of supply, production and/or delivery of the goods due to circumstances beyond the reasonable control of the company.
3.2 Unless expressly included, goods and services tax and other taxes and duties assessed or levied in connection with the supply and delivery of the goods are not included in the price and are your responsibility, or, where payment of such taxes or duties is the responsibility at law of the company, the price will be increased by the amount of such taxes or duties.
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4. Risk
4.1 Risk of any loss, damage or deterioration of or to the goods passes to you from the date of delivery of the goods.
4.2 Neither the company nor any of its employees or agents warrant or guarantee the accuracy or completeness of any information provided to you. You undertake that all matters relevant to the supply of goods hereunder are to your own satisfaction and in doing so you acknowledge that you have relied on your own skill, inspection and judgement.
4.3 You acknowledge that in deciding to purchase the goods hereunder you have not relied on any statement made by the company or its employees and/or agents and in doing so you assume the risk of mistake in relation to the information provided.
5. Delay
5.1 If any time for delivery of goods is agreed such time is approximate only and is not deemed of the essence.
5.2 The company is not liable for any delay in performing or any failure to perform any obligation imposed on it where such delay or failure is caused by any cause beyond the company's reasonable control.
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6. Delivery
6.1 Delivery is to be made at the place specified by agreement or, in the absence of any such place, delivery is to be made to your premises. If you fail or refuse or indicate that you will fail or refuse to take or accept delivery, then the goods are deemed to have been delivered when the company was willing to deliver them.
6.2 Whether or not the company is to deliver the goods and without prejudice to any other rights and remedies which it may have, the company may charge you all expenses incurred by it if you fail to take delivery under clause 6.1
6.3 The cost of the delivery of the goods will be met by you unless otherwise specified, and will appear as a separate item on the company's invoice to you.
6.4 There is no right for you to fail or refuse to accept delay of the goods or reject the goods for any reason, but this provision is without prejudice to your rights under clauses 8 and 9 hereof.
7. Dimensions and Specifications
7.1 Dimensions and specifications contained or referred to in any agreement or in any publications maintained or issued by the company are estimates only. Unless otherwise expressly agreed in writing it is not a condition of any agreement that the goods will correspond precisely with such dimensions and specifications and customary tolerances or reasonable tolerances will be allowed.
8. Insurance
8.1 Goods exported from New Zealand are insured under the Company's open marine policy with the Company's insurer. The company, the company's insurer and the company's freight forwarder must all be notified both verbally and in writing by you of any claim, within 48 hours of delivery of the goods.
9. Personal Property Securities Act 1999 (New Zealand) ("PPSA")
9.1 You for yourself and any relevant third party (collectively "you") agree to, at your own cost, do anything which the company considers necessary or desirable to better secure to the company any collateral within the meaning of the PPSA which secures, or personal property within the meaning of the PPSA which is intended to secure, any payment of monies owed by you to the company (collectively "collateral").
9.2 You will ensure that any security interest within the meaning of the PPSA held or taken by the company is perfected under the PPSA and has first ranking or such other priority as agreed between the company and you.
13.3 To the extent permitted by law, you agree in respect of any arrangement between you and the company that:
(a) those provisions of the PPSA which are for the benefit of you or which place obligations on the company shall only apply to the extent that either they are mandatory or the company agrees to
(b) Where the company has rights under the PPSA those rights shall continue to apply; and
(c) You waive all rights to:
(i) object to anything done or not done by the company in reliance or purported reliance on the company's rights
(i) Receive a copy of the verification statement confirming registration of a financing statement or a financing change statement relating to the security interest created hereunder.
13.4 You agree that you will not:
(a) Do or omit to do or allow to be done or omitted to be done anything which might in the opinion of the company adversely affect any collateral or security interest or charge hereunder.
(b) Allow any collateral to become an accession to any property which is not collateral or to be affixed to any land.
(c) Change your place of incorporation (if you are a company) or relocate the principal place of your business.
(d) Move any of the collateral outside the country of delivery, except for inventory sold or leased in the ordinary course of business.
(e) Allow any accounts receivable to be subject to any right of set-off or combination of accounts (other than rights that are rights solely the operation of law).
(f) Deduct or withhold any amount payable to the company (whether by set-off, counter claim or otherwise) or attach any restrictions or conditions of any payment to the company.
(g) Sell all or part of your business or substantially alter the nature of your business from that which is carried on at the date of your credit application to the company.
(h) Sell or purchase, or lease (whether as lessor or lessee) any collateral which is inventory, nor collect accounts receivable which are the proceeds of any such inventory, other than in the ordinary course of business.
13.5 You agree to indemnify the company against any loss, costs (including, by way of example only, costs as between solicitor and own client), claims or expenses suffered by or threatened to the company and which may arise in relation to compliance by the company with any of its obligations under the PPSA, or resulting directly or indirectly from any breach or threatened breach by you of any of your obligations herein.
14. Force Majeure
The company shall not be liable for any failure by the company beyond its reasonable control.
15. Severability
Where any provision of these terms and conditions is rendered void, unenforceable, or otherwise ineffective by operation of law or other wise, that shall not effect the enforceability or effectiveness of any other provision in these terms and conditions.
16. Entire Agreement, Variation and Non-Waiver
16.1 These terms and conditions constitute the entire agreement in relation to the sale of goods and no modification or waiver thereof shall be valid unless expressly made in writing and signed by an authorised officer of the company and you.
16.2 Failure by the company to enforce any of the terms and conditions contained herein shall not be deemed to be a waiver of any of the rights or obligations the company has hereunder.
16.3 If any provision herein 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.
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17. Arbitration
Any dispute or difference arising as to the interpretation of these terms of trade or as to any matter arising hereunder shall be submitted to and settled by arbitration in accordance with the Arbitration Act 1996 (New Zealand) or its replacement(s).
18. Company Name
SPN is the trading name of Madison Industries Limited.
19. Governing Law
These terms of trade are governed by and are to be construed in accordance with the law of New Zealand, and the parties irrevocably submit to the exclusive jurisdiction of the Courts of New Zealand.