Definitions
Confidential Information means any and all information relating to Outgro Fertiliser, the Goods or Services supplied by Outgro Fertiliser and any and all information of whatever nature directly or indirectly concerning the activities, business, finances, software, knowhow, data (technical or nontechnical), trade secrets, projects and forecasts, and information relating to systems or processes, marketing information, customer information and any other information and/or Intellectual Property, relating to or owned by the Outgro Fertiliser or any of its related companies or which is obtained directly or indirectly from Outgro Fertiliser or any of its related companies under or in connection with these terms, in each case whether such information is oral, written or embodied in any other physical or electronic form. Customer means the person who orders or purchases Goods and /or Services from Outgro Fertiliser, and where the Customer comprises two or more persons, means those persons jointly and severally.
Services means any services performed by Outgro Fertiliser.
Goods means any goods provided by Outgro Fertiliser.
GST means goods and services tax chargeable, or to which a person may be liable, under the Goods and Services Tax Act 1985. Intellectual Property means any patent, design, trade mark, copyright, knowhow, trade secret, confidential information and any other proprietary right or form of intellectual property (whether protectable by registration or not) in respect of any technology, concept, idea, data, documentation, written material, program or other software (including, without limitation, in source and object codes), specification, formula, drawing, program, design, system, process, business name, trade name, trade mark, service mark, logo, mark, style or other matter or thing, existing or conceived, used, developed or produced by any person or used in relation to such technologies which is not already available in the public domain.
Order means any agreement (written or oral) between Outgro Fertiliser and the Customer for the supply of Goods and/or Services to the Customer.
PPSA means the Personal Properties Securities Act 1999.
Quote means a written offer from Outgro Fertiliser to the Customer to supply Goods and/or Services for a specified price subject to these terms and any additional terms and conditions contained in the relevant Quote.
Outgro Fertiliser means Outgro Fertiliser Limited.
A reference to “Outgro Fertiliser” includes any related company of Outgro Fertiliser (and any trading entity of Outgro Fertiliser) which supplies Goods and/or Services to the Customer.
A reference to a person includes a corporation, association, firm, company, partnership, individual or government or local body.
The terms “after acquired property”, “at risk”, “inventory”, “lease”, “perfected”, “proceeds”, “purchase money security interest”, “rights”, “security interest” and “sell” have the meanings given to them under, or in the context of, the PPSA.
Orders, Pricing, Quotes and Estimates
a. The price of Goods and/or Services is as specified in a Quote or an Order (as applicable), and if no price has been specified, the prices set out in Outgro Fertiliser’s price list (as amended from time to time).
b. Unless otherwise stated in a Quote or an Order:
- prices stated do not include GST; and
- all Goods will be despatched from Outgro Fertiliser’s Dannevirke Airport base.
c. These terms apply to all Goods and /or Services supplied by Outgro Fertiliser including those supplied pursuant to a Quote or an Order. A Customer’s acceptance of a Quote constitutes an agreement to purchase Goods and/or Services on these terms and any additional terms contained in the relevant Quote.
d. A Quote may be withdrawn or varied by Outgro Fertiliser before it has been accepted in writing by the Customer.
e. All Quotes are based on rates and charges in effect at the date of the relevant Quote. Unless specified otherwise in a Quote, any increase in rates or charges (including without limitation subcontracted services, materials and fuel) between the date of the Quote and the date of supply shall result in an equivalent increase in the price included in the relevant Quote.
f. Any estimate as to price or quantity provided to a Customer is not binding on Outgro Fertiliser.
g. Where a Quote includes an estimate of flying time for application services and the actual flying time supplied differs from that estimated, Outgro Fertiliser reserves the right to revise the price payable by the Customer for the Goods and/or Services (as specified in a Quote or an Order) to reflect the actual flying time.
Payments, Discounts and Rebates
a. Except where Goods and/or Services are charged to an approved Outgro Fertiliser credit account, payment for Goods and/or Services is due, in full, prior to the despatch of such Goods and/or Services by Outgro Fertiliser.
b. Payment for Goods and/or Services charged to an approved Outgro Fertiliser credit account shall be paid by the Customer in full on the 20th of the month following supply of the Goods and/or Services and otherwise in accordance with the terms and conditions applicable to such credit account.
c. The Customer will not setoff any sum on any Outgro Fertiliser invoice against any sum the Customer claims Outgro Fertiliser may owe to the Customer or any amount due that is disputed by the Customer.
d. If payment is not made in full by the Customer by relevant due date for payment Outgro Fertiliser may charge interest on the overdue balance at the rate of 1.5% per month and seek reimbursement from the Customer of all costs incurred by Outgro Fertiliser in connection with seeking recovery of such payments by the Customer.
e. Where the Customer receives a volume based discount on Goods and/or Services and the Customer fails to purchase the relevant total volume of such Goods, Outgro Fertiliser reserves the right to withdraw such discount and require payment of the full price applicable to such Goods and/or Services, as applicable.
Risk, Ownership of Goods, Security Interest
a. Risk of any loss, damage or deterioration of or to the Goods shall be borne by the Customer despatch of the Goods from which time the Goods will be at the Customer’s sole risk notwithstanding that payment for such Goods may not yet have been made in full by the Customer.
b. Title to Goods shall not pass to the Customer until the Goods and any other Goods and/or supplied to the Customer have been paid for in full by the Customer.
c. The Customer grants a security interest to Outgro Fertiliser in each and every part of the Goods as security for payment for that part and of each other part or parts of the Goods and for any other amounts owing by the Customer to Outgro Fertiliser from time to time, and for the performance by the Customer of all the Customer’s other obligations to Outgro Fertiliser from time to time (*”Customers indebtedness and obligations”*). For the purposes of section 36(1)(b) of the PPSA, and to ensure maximum benefit and protection for Outgro Fertiliser by virtue of section 36(1)(b)(iii) of the PPSA, the Customer confirms and agrees that the Customer intends to and does grant Outgro Fertiliser, as security for the Customer’s indebtedness and obligations, a security interest in all of the Customer’s present and after acquired property except only for any such property which is or comprises items or kinds of personal property (*”excepted property”*):
- in or to which Customer has rights; and
- which has not been supplied by Outgro Fertiliser to the Customer,
other than any excepted property which is or compromises proceeds of that present and after acquired property which has been supplied by Outgro Fertiliser to the Customer.
d. The Customer shall do anything that Outgro Fertiliser reasonably requires to ensure Outgro Fertiliser has a perfected security interest in all the Goods and purchase money security interest in each part of the Goods to the extent of the purchase price for that part and Outgro Fertiliser may allocate amounts received from the Customer in any manner Outgro Fertiliser determines, including in any manner required to preserve any purchase money security interest it has in any Goods.
e. The Customer shall reimburse Outgro Fertiliser for all costs and/or expenses incurred or payable by Outgro Fertiliser in relation to registering, maintaining or releasing any financing statement in respect of any security interest under these terms.
f. The Customer waives the right to receive a copy of the verification statement confirming registration of a financing statement or financing change statement relating to the security interest.
g. The Customer:
- agrees that if, at any relevant time, Outgro Fertiliser does not at that time have priority over all other secured parties in respect of any part of the Goods, then the Customer and Outgro Fertiliser will, for the purposes of section 109(1) of the PPSA, be deemed, in accordance with the entitlement to do so under section 107(1) of the PPSA, to have contracted out of that section but specifically on the basis that, as between them and only to the extent of that part of the Goods and the operation and application of the PPSA, that section 109(1) (but amended only by deletion of the words “with priority over all secured parties”) is reinstated and contracted back into; and
- agrees that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to any agreement between the Customer and Outgro Fertiliser, or the security under any agreement between the Customer and Outgro Fertiliser, and waives the Customer’s rights under sections 121, 125, 129, 131 and 132 of the PPSA.
Exclusion Of Liability
a. All technical advice provided by Outgro Fertiliser is given in good faith but without warranty.
b. The total liability of Outgro Fertiliser for any loss arising from any defect or noncompliance of any Goods and/or Services or any other breach by Outgro Fertiliser of its obligations under or in connection with any Quote, Order or supply to the Customer will not in any circumstances exceed the price paid by the Customer for the Goods and/or Services in respect of which liability arises.
c. Outgro Fertiliser will not be liable for any loss of profits or any consequential, indirect or special damage or damage or injury of any kind suffered by the Customer or any of the Customer’s employees, contractors or representatives.
d. The Customer will indemnify Outgro Fertiliser against:
- any claim by the Customer’s employees, contractors, representatives or other persons in respect of any loss, damage or injury arising from any defect in or noncompliance of any Goods and/or Services or in respect to any other matter whatsoever; and
- any liability or cost incurred by Outgro Fertiliser as a result of any breach by the Customer of any provision of these terms or an Order or any unauthorised use of the Goods.
e. To the fullest extent permissible at law:
- any warranties, conditions, representations or guarantees whether implied by statute, common law or custom of the trade or otherwise, including implied warranties, guarantees or conditions of merchantability and/or fitness for a particular purposes, are excluded.
- Outgro Fertiliser shall have no liability to the Customer or any Customer employee or representative for anything, other than a breach by Outgro Fertiliser of an express provision of these terms.
f. Where the Customer purchases Goods and/or Services for a particular purpose, it is the Customer’s sole responsibility to ensure that the Goods and/or Services, as applicable, will be suitable for that purpose.
g. The Customer agrees that nothing in these terms or any Quote or Order is intended to have the effect of contracting out of the provisions of the Consumer Guarantees Act 1993 (*”CGA”*) except to the extent permitted by the CGA and all provisions of any agreement between the parties shall be modified to the extent necessary to give effect to that intention.
Copyright
The contents of www.outgro.co.nz and any other written or electronic material supplied by Outgro Fertiliser are the copyright of Outgro Fertiliser.
No part of the contents of www.outgro.co.nz or any other written or electronic material supplied by Outgro Fertiliser may be distributed or copied for any commercial purpose nor can the material or any part of it be incorporated in any other work or publication (whether in hard copy, electronic or any other form) without the prior written consent of Outgro Fertiliser.
No part of the contents of www.outgro.co.nz any other written or electronic material supplied by Outgro Fertiliser may be resold, published, copied, reproduced, transmitted or stored (including in any other website or other electronic form) except that the Customer may print or download to their hard drive, extracts from www.outgro.co.nz only for its own use.
The Customer acknowledges that the logos of Outgro Fertiliser are the property and copyright of Outgro Fertiliser and agrees that it will not publish, copy, reproduce, transmit or store such logos without the prior written consent of Outgro Fertiliser.
Returns
a. Goods may only be returned to Outgro Fertiliser with Outgro Fertiliser’s prior written consent and any proposed return must be notified to Outgro Fertiliser within fourteen days of receipt of the Goods. All returns to Outgro Fertiliser shall be undertaken by the Customer at the Customer’s sole risk and expense.
b. Should Outgro Fertiliser determine (acting reasonably) that there is no material defect in the Goods returned to it, Outgro Fertiliser will have the right to charge the Customer all costs and expenses associated with the return of the relevant Goods to the Customer.
Weather
All application services are weather permitting at are at the sole discretion of Outgro Fertiliser. Outgro Fertiliser shall have no liability to the Customer for any decision made under this clause 8. Should weather cause the postponement or cancellation of any application services, no charges for the cancelled application will be incurred by the Customer.
Application Of Goods
Outgro Fertiliser may subcontract a third party to apply the Goods.
Cancellation Policy
a. Outgro Fertiliser may cancel any Order or Quote at any time prior to commencement of the Services and/or dispatch of the Goods (as applicable) by giving written notice to the Customer of such cancellation. On giving such notice Outgro Fertiliser shall promptly repay to the Customer any sums paid by the Customer in respect of the relevant Goods and/or Services. Outgro Fertiliser shall not be liable for any loss or damage whatsoever arising from such cancellation.
b. If the Customer cancels any Order up until 7 days of delivery of the relevant Goods and/or Services to the Customer Outgro Fertiliser reserves the right to charge a cancellation fee of an amount up to 10% of the total value of the relevant Order. If an Order is cancelled within the 7 day period prior to delivery of the Goods and/or Services Outgro Fertiliser reserves the right to charge a cancellation fee equal to the full contract price of the relevant Goods and/or Services.
Confidentiality and Intellectual Property
a. All Intellectual Property rights in the Goods or arising out of or in connection with the performance of the Services are and shall remain the sole property of Outgro Fertiliser.
b. To the extent any Confidential Information is provided by Outgro Fertiliser to the Customer, the Customer shall keep that information confidential and shall not disclose such information to any person.
Warranties
a. Quotations are prepared in accordance with information provided to Outgro Fertiliser by the Customer and Outgro Fertiliser will not be liable nor will it be bound by a Quote or an Order where:
- the information provided by the Customer is inaccurate or information relevant to the provision of the Quote and/or Order (as determined by Outgro Fertiliser) has been omitted; and/or
- the Customer makes any variations to an Order which result in the proposed Services being different from that quoted for.
Hours Of Operation
Outgro Fertiliser will conduct all operations and applications during daylight hours only.
Disputes
In the event of a dispute between Outgro Fertiliser and the Customer, the following shall apply:
a. The parties shall immediately refer the dispute to an independent person experienced in the area in dispute at their joint cost to decide the dispute as an expert; and shall abide by his or her decision.
b. If the Customer fails to agree on an expert within 21 days of being called upon to do so by Outgro Fertiliser (time being of the essence) the Customer shall be deemed to have accepted Outgro Fertiliser’s nominated expert.
Force Majeure
No claim or liability will arise against Outgro Fertiliser under these terms or any Order or Quote, if and to the extent that Outgro Fertiliser’s failure or omission to carry out or observe any provisions of these Terms or any Order or Quote arises by reason of Force Majeure. “Force Majeure” means any event outside the reasonable control of Outgro Fertiliser and includes, without limitation, fires or other casualties or accidents, power outages, acts of God, strikes and lockouts, severe weather conditions, delay in supply or materials or unavailability of materials, war or other violence, or the introduction of any law, order, regulation, demand or requirement of any governmental agency.
Variation of Terms
Outgro Fertiliser may, in its sole discretion, vary these terms from time to time.
Governing Law
These terms shall in all respects be governed by New Zealand law.
Miscellaneous
a. Outgro Fertiliser’s failure or delay to exercise or enforce any right it has under these terms shall not operate as a waiver of Outgro Fertiliser’s right to exercise or enforce such right or any other right in the future.
b. Any provision of these terms that is held to be invalid or unenforceable for any reason shall be severed from, and shall not affect the remaining provisions of, these terms.
c. The Customer authorises Outgro Fertiliser to contact any credit agency, referee or any other source in order to check, exchange or provide information in relation to the Customer and the Customer authorises each such source to provide to Outgro Fertiliser any information about the Customer. If the Customer is a natural person the Privacy Act 1993 entitles the Customer to have access to personal information held by Outgro Fertiliser about the Customer and to request such information.
d. The Customer shall not assign or purport to assign (whether in whole or in part) its rights or interests under these terms or any Order without the prior written consent of Outgro Fertiliser.
e. The Customer acknowledges that it has received a copy of these terms and in particular that each Order constitutes a “security agreement” for the purposes of the PPSA, and that Outgro Fertiliser may register a financing statement.
Acceptance of Terms of Trade
The Customer agrees to be bound by these terms when they accept any Quote or estimate provided by Outgro Fertiliser and acknowledge and agree that these terms shall form part of any Order.