1. Definitions in These Terms and Conditions of Trade

“Account” means the Customer’s account with the Vendor.

“Customer” means the person or entity making the application or any person acting with ostensible authority on behalf of the customer.

“Vendor” means Southern Fertiliser Company T/A Uptake

“Goods” means goods supplied by the Vendor to the Customer at any time.

“Services” means services supplied by the Vendor to the Customer at any time.

“Guarantor” means any party executing a Guarantee of the Customer’s Account with the Vendor.

“Order” or “Orders” means the order or orders of the Customer to the Vendor to supply Goods and Services.

2. Orders

Orders will be confirmed with the Vendor; an ‘Uptake Sales Representative’.

3. Acceptance

Each Order shall constitute acceptance by the Customer of these Terms and Conditions of Trade.

4. Prices

Prices are EXCLUSIVE of GST

Prices applicable are to be those ruling at the time of Vendor ‘estimate’ on an ‘ex store’ at owners’ risk basis.

5. Payment

a. Unless otherwise specified, payment for all Goods and Services shall be made no later than: (i) on completion for non-account Customers; (ii) the 20th day of the month following invoice for account Customers.

b. An administration fee will be charged on all overdue amounts in addition to any other charges pursuant to this clause.

c. Interest will accrue on all amounts overdue at the rate of 2.5% per month and will be calculated on a day by day basis until payment is made in full.

d. All costs of or incurred by the Vendor as a result of a default by the Customer including but not limited to administration charges, debt collection costs and legal costs as between solicitor and client shall be payable by the Customer.

e. If the Customer defaults in any payment or commits any act of bankruptcy or any act which would render it liable to be wound up or if a resolution is passed or proceedings are filed for the winding up of the Customer or if a receiver is appointed for all or any assets of the Customer, the Vendor may cancel any Order without prejudice to any other rights it may have and payment for all completed Orders shall immediately become due.

6. Price Variation

Price estimates are based on the Vendor’s current costs of production and, unless otherwise agreed, are subject to amendment on or at any time after acceptance, where such amendment is required in order to meet any rise or fall in such costs.

7. Delivery and Payment

Turnaround is measured in Working Days. With a ten-day period to process an order/s and does not include transportation and application of order/s. The customer will still be obliged to pay in full for the order in respect of the delivery and/or application of product. Where the late delivery is as the result of the action or inaction of a third party, such as a carrier or applicator, the Vendor, expects that payment is required as set out in these terms and conditions.

a. These services rely on the customer not delaying the progress of the order in any way. In the event of a Customer Delay, the customer still be obliged to pay.

b. Where the customer Chooses to collect an order/s and customer’s failure to collect on the day on which the Vendor is contractually obliged to have it ready for collection shall be classed as a Customer Delay. Where the Vendor is obliged to deliver the work to the customer, but the customer provides the Vendor with incomplete or incorrect delivery information or is not available to accept delivery, then provided that the Vendor has used reasonable endeavors to deliver the work to the customer, a failed delivery shall be classed as a Customer Delay.

c. A charge may be made to cover any extra costs involved for delivery to a different address.

d. Should work be suspended at the request of or delayed through any default of the customer for a period of 30 days or more the Vendor shall then be entitled to payment for work already carried out, materials specially ordered and other additional costs including storage.

e. Risk of loss or damage to work completed by the Vendor shall pass to the customer on delivery. Notwithstanding delivery and the passing of risk in the work to the customer, ownership of and title to the work shall not pass to the customer and shall be retained by the Vendor until the Vendor has received payment in full in respect of the work.

8. Claims

Advice of damage, delay or partial loss of goods in transit or of non-delivery must be given in writing to the Vendor and the carrier within three clear days of delivery (or, in the case of non-delivery within 28 days of dispatch of the goods) and any claim in respect thereof must be made in writing to the Vendor and the carrier within seven clear days of delivery (or, in the case of non-delivery, within 42 days of dispatch). All other claims must be made in writing to the Vendor within 28 days of delivery.

The Vendor shall not be liable in respect of any claim unless the aforementioned requirements have been complied with except in any particular case where the customer proves that (i) it was not possible to comply with the requirements and (ii) advice (where required) was given and the claim made as soon as reasonably possible.

9. Liability

a. The Vendor’s liability to the Customer shall be limited to the value of the Order supplied.

b. The Sale of Goods Act 1908, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon the Vendor which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on the Vendor the Vendor’s liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.

c. Except as otherwise provided above the Vendor shall not be liable for any loss or damage of any kind whatsoever, arising from the supply of Goods and Services by the Vendor to the Customer including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Goods and Services provided by the Vendor to the Customer.

d. The Customer shall indemnify the Vendor against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of the Vendor or otherwise, brought by any person in connection with any matter, act, omission, or error by the Vendor its agents or employees in connection with the Goods and Services.

10. Payment Allocation

The Vendor may in its discretion allocate any payment received from the Customer towards any invoice that the Vendor determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer, the Vendor may reallocate any payments previously received and allocated.

In the absence of any payment allocation by the Vendor, payment shall be deemed to be allocated in such manner as preserves the maximum value of the Vendor’s purchase money security interest in the products.

11. Errors or Omissions

Clerical errors or omissions, whether in computation or otherwise in the quotation, acknowledgement or invoice shall be subject to correction.

12. Risk

From the time of dispatch to the Customer by the Vendor, risk in all Goods supplied shall pass to the Customer and any loss, damage or deterioration to the Goods shall be borne by the Customer. The Customer shall notwithstanding any loss, damage or deterioration to the Goods remain liable to pay for the Goods.

13. Ownership

a. The Vendor shall retain ownership of all Goods supplied until it receives payment in full of all amounts owing by the Customer for all Orders.

b. The Vendor shall have a right to stop and retrieve the Goods in transit whether or not ownership has passed.

Until payment is made by the Customer, the Customer agrees to:
a. enables the Goods to be readily identifiable as the property of the Vendor;

b. holds the Goods as trustee for the Vendor and will deal with the Goods as agent for and on behalf of the Vendor (but will not hold the Customer out as an agent to any third parties).

14. Recovery of Goods

a. In the event of nonpayment or if payment of the Customer’s Account is overdue the Vendor shall be entitled without prejudice to any right it has at law or in equity to enter the place where the Goods are stored whether at the Customer’s premises or property or the premises or property of a third party for the purpose of recovering and taking possession of the Goods supplied.

b. The Customer warrants to the Vendor that where the Goods are stored on the premises or property of a third party the Customer is acting as agent for the third party and has the full authority of the third party to authorise entry on to the premises or property of the third party for the purpose of recovering the Goods supplied without releasing the Customer from liability.

c. The Vendor will not be responsible for any damage reasonably caused in the course of removal of Goods supplied either in the possession of the Customer or a third party and the Customer indemnifies the Vendor to the full extent in respect of damage caused in the course of removal from the property of a third party.

d. The Vendor may resell the Goods and apply the proceeds towards payment of the Customer’s outstanding Account with the Vendor.

Any shortfall will remain the liability of the Customer. The Customer indemnifies the Vendor for all costs and expenses including legal costs as between solicitor and client which the Vendor may incur in recovering the Goods and any monies owed to it.

15. Cancellation

The Customer shall not be entitled to cancel an Order other than as allowed pursuant to these Terms and Conditions of Trade.

16. Returns

The Customer shall not be entitled to return Goods or cancel an Order other than as allowed pursuant to these Terms and Conditions of Trade and the Vendors prior written consent and any proposed return must be notified within fourteen days of receipt of goods.

Should the Vendor discover there is no defect in the goods supplied, the Vendor will have the right to charge the Customer all costs of delivery, return and handling fee.

17. Liability

a. The Vendor’s liability to the Customer shall be limited to the value of the Order supplied.

b. The Sale of Goods Act 1908, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon the Vendor which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on the Vendor the Vendor’s liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.

c. Except as otherwise provided above the Vendor shall not be liable for any loss or damage of any kind whatsoever, arising from the supply of Goods and Services by the Vendor to the Customer including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Goods and Services provided by the Vendor to the Customer.

d. The Customer shall indemnify the Vendor against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of the Vendor or otherwise, brought by any person in connection with any matter, act, omission, or error by the Vendor its agents or employees in connection with the Goods and Services.

18. Suitability of Goods and Services

The Customer must satisfy itself that the Goods and Services as ordered are fit and suitable for the purpose for which they are required.

The Vendor makes no warranties or representation and expressly negates any implied or expressed condition that the Goods and Services will be suitable for a particular purpose or use for which the Customer may use them.

The Customer accepts all risk and responsibility for consequences arising from the use of the Goods and Services whether singularly or in combination with other Goods and Services.

19. Disputes

a. In the event of any dispute arising between the Vendor and the Customer, such dispute shall in the first instance be referred to mediation for resolution.

b. In the event that resolution by mediation is not achieved to the satisfaction of both parties within 30 days of referral to mediation, either party may then take legal action to resolve the dispute.

c. Nothing in this clause prevents the Vendor from taking legal action to enforce payment of any debt due, nor where required to seek interlocutory or injunctive relief.

20. Changes of General Terms and Conditions

a. The Vendor may at any time refuse an order by the Customer or decline to approve any application by the Customer for any reason whatsoever.

b. The existence of an account by the Customer with the Vendor does not automatically entitle the Customer to credit in the future.

c. Failure by the Vendor to enforce any of the terms and conditions contained in these Terms and Conditions of Trade shall not be deemed to be a waiver of any of the rights or obligations the Vendor has under these Terms and Conditions of Trade.

d. The Vendor may from time to time by written notice to the Customer amend, add to or repeal the trading conditions covered by this Agreement or may substitute any fresh trading conditions and such amendment, addition or substitute trading conditions shall be binding on the Customer fourteen days after the date of delivery of the notice.

21. Governing Law

These Terms and Conditions of Trade will be interpreted in accordance with and governed by the laws of New Zealand and the New Zealand Courts will have exclusive jurisdiction over any dispute in relation to the Goods and Services.

Phone: 07 378 2604
Email: info@uptake.co.nz