Terms and Conditions

1. Definitions

1.1  “Company” means PMR Grain Systems Ltd, their successors and assigns or any person acting on behalf of and with the authority of PMR Grain Systems Ltd.

1.2  “Customer” means 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 the Company to the Customer.

1.3  “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.

1.4  “Goods” shall mean Goods supplied by the Company to the Customer (and where the context so permits shall include any supply of Services as defined) and includes Goods described on any invoices, quotation, work authorisation or any other forms as provided by the Company to the Customer.

1.5  “Services” shall mean all services supplied by the Company to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).

1.6  “Price” shall mean the price payable for the Goods as agreed between the Company and the Customer in accordance with clause 3 of these terms and conditions.

1.7  “Order” shall mean an order by the Customer for the supply of Goods and/or Services in such form as the Company may require from time to time, and for the purposes of these terms and conditions, the Customer’s acceptance of the Company’s quotation shall constitute an Order.

1.8  “Account Application” means the Account Application Form completed and signed by the Customer.

2. Acceptance

2.1  These terms and conditions shall apply to the supply of all Goods and/or Services by the Company to the Customer unless agreed otherwise in writing.

2.2  In the vent these terms and conditions are not signed by the Customer at clause 18, the Customer’s signature on the Account Application, any Order and/or any quotation provided by the Company shall constitute acceptance by the Customer of these terms and conditions.

2.3  Each Order accepted by the Company and/or each quotation that is accepted by the Customer shall constitute an Agreement that is subject to these terms and conditions.

3. Price and Payment

3.1  At the Company’s sole discretion the Price shall be either:

(a)  the Company’s quoted Price (subject to clause 3.2) which shall be binding upon the Company provided that the Customer shall accept the Company’s quotation in writing within thirty (15) days; or
(b)  where there is no quoted Price, the Price indicated on the invoices provided by the Company to the Customer in respect of Goods and/or Services supplied.

3.2  Payment for Good or Services shall be made in the following manner: As per the terms on the quote.

3.3  The Company reserves the right to change the Price prior to acceptance.

3.4  If no time is stated on an invoice or any other forms then payment shall be due on the 20th of the month following the date of the invoice.

3.5  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.

4. Delivery of Goods

4.1  Delivery of the Goods shall take place when the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by the Company or the Company’s nominated carrier).

4.2  The costs of delivery are to be arranged by the Company in addition to the Price and are for the Customer’s account.

4.3  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 the Company shall be entitled to charge a reasonable fee for storage.

4.4  Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of these terms and conditions.

4.5  The Customer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:

(a)  such discrepancy in quantity shall not exceed 5%; and
(b)  the price shall be adjusted pro rata to the discrepancy.

4.6  The Company shall not be liable for any loss or damage whatever due to failure by the Company to deliver the Goods (or any of them) promptly or at all. Any dates quoted by the Company for the delivery of goods or commencement, or completion of services are approximate only and shall not form part of the agreement.

5. Risk

5.1  Risk in all Goods supplied shall pass to the Customer on delivery of the Goods to the Customer and any loss, damage or deterioration to the Goods thereafter 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.

6. Spontaneous Combustion

6.1  Notwithstanding any of these terms and conditions, the Company shall not be liable, whether based in negligence or for a primary or fundamental breach of these terms and conditions, to the Customer for any loss or damage whatsoever (including any consequential loss or damage) caused by the Goods spontaneously combusting.

6.2  The Customer shall, notwithstanding any loss or damage to the Goods, remain liable to pay for the Goods.

7. Title

7.1  The Company and Customer agree that ownership of the Goods shall not pass until:

(a)  the Customer has paid the Company all amounts owing for the particular Goods; and
(b)  the Customer has met all other obligations due by the Customer to the Company in respect of all contracts between the Company and the Customer.

7.2  Receipt by the Company 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 the Company’s ownership or rights in respect of the Goods shall continue.

7.3  It is further agreed that:

(a)  where practicable the Goods shall be kept separate and identifiable until the Company shall have received payment and all other obligations of the Customer are met; and
(b)  the Customer shall not use consumable Goods until the Company shall have received payment; and
(c)  until such time as ownership of the Goods shall pass from the Company to the Customer, the Company may give notice in writing to the Customer to return the Goods or any of them to the Company. Upon such notice being given the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
(d)  the Customer is only a bailee of the Goods and until such time as the Company has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods on trust for the Company; and
(e)  until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that the Company will be the owner of the end products; and
(f)  if the Customer fails to return the Goods to the Company then the Company or the Company’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Goods are situated as the invitee of the Customer and take possession of the Goods, and the Company will not be liable for any reasonable loss or damage suffered as a result of any action by the Company under this clause.

8. Personal Property Securities Act 1999 (PPSA)

8.1 The Customer acknowledges and agrees that:

(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Goods previously supplied by the Company to the Customer (if any) and all Goods that will be supplied in the future by the Company to the Customer.

8.2 The Customer undertakes to:

(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Company may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, the Company 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;
(c) not register a financing change statement or change demand without the prior written consent of the Company; and
(d) immediately advise the Company of any material damage in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.

8.3 The Company and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.

8.4 The Customer waives its right as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.

8.5 Unless otherwise agreed to in writing by the Company, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.

8.6 The Customer shall unconditionally ratify any actions taken by the Company under clauses 7.1 to 7.5.

9. Customer’s Disclaimer

9.1  The Customer hereby disclaims any right to rescind, or cancel any contract with the Company or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by the Company.

9.2  The Customer acknowledges that the Goods are fit and suitable for the Customer’s purposes and are bought relying solely upon the Customer’s skill and judgment.

10. Defects

10.1  The Customer shall inspect the Goods on delivery and shall within 24 hours of delivery (time being of the essence) notify the Company of any alleged defect, shortage in quantity or damage or failure to comply with the description or quote. The Customer shall afford the Company an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer fails to comply with these provisions, the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Company

has agreed in writing that the Customer is entitled to reject, the Company’s liability is limited to either (at the Company’s discretion) replacing the Goods or paying compensation not exceeding the purchase price for the Goods.

11. Returns

11.1  Returns will only be accepted provided that:

(a)  the Customer has complied with the provisions of clause 9.1; and
(b)  the Company has agreed in writing to accept the return of the Goods; and
(c)  the Goods are returned at the Customer’s cost within ten (10) days of the delivery date; and
(d)  the Company will not be liable for Goods which have not been stored or used in a proper manner; and
(e)  the Goods are returned in the condition in which they were delivered.

11.2  The Company may (in its discretion) accept the return of the Goods for credit, but this may incur a handling fee of ten percent (10%) of the value of the returned Goods, plus any freight.

12. Warranties and Company’s liability

12.1  Unless otherwise specified, the Company gives no warranty, express or implied, as to the quality, description or fitness for any particular purpose of the Goods and/or Services.

12.2  Notwithstanding anything else in these terms and conditions, the Company will never be liable in connection with any Goods supplied or not supplied or the purported exercise of the Company’s rights under these terms and conditions for any:

(a)  Loss of income, profits, savings or goodwill or for any indirect or consequential loss or special or exemplary damages;
(b)  Amount exceeding the purchase price paid for the Goods; or(c) Amount not claimed within 7 days of the liability arising.

12.3  If the Company cannot provide the agreed quantity of Goods for any reason outside its reasonable control, the Company is not liable for that shortfall and the Customer must take delivery or and pay for the lesser quantity the Company is able to supply.

13. Consumer Guarantees Act 1993

13.1  If the Customer is acquiring Goods for the purposes of trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by the Company to the Customer.

14. Default and Consequences of Default

14.1  Interest on overdue invoices shall accrue from the date when payment becomes due a monthly charge of 2% of total of invoice which will compound each month thereafter.

14.2  If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Company from and against all costs and disbursements incurred by the Company in pursuing the debt including legal costs on the solicitor and own client basis and the Company’s collection agency costs.

14.3  Without prejudice to any other remedies the Company may have, if at any time the Customer is in breach of any obligation (including those relating to payment); the Company may suspend or terminate the supply of Goods and/or Services to the Customer and any of its other obligations under these terms and conditions. The Company will not be liable to the Customer for any loss or damage the Customer suffers because the Company has exercised its rights under this clause.

14.4  If any account remains overdue after thirty (30) days then an amount of the greater of $20.00 or 10.00% of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable.

14.5  Without prejudice to the Company’s other remedies at law the Company shall be entitled to cancel all or any part of any Order of the Customer which remains unfulfilled and all amounts owing to the Company shall, whether or not due for payment, become immediately payable in the event that:

(a)  any money payable to the Company becomes overdue, or in the Company’s opinion the Customer will be unable to meet its payment as they fall due; or
(b)  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
(c)  a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

14.6  The Customer hereby agrees to pay all of the Company’s legal costs of and incidental to the enforcement of these terms and conditions including but not limited to costs incurred on a Solicitor client basis.

15. Cancellation

15.1  The Company may cancel any Agreement to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered and/or the supply of Services by giving written notice to the Customer. On giving such notice the Company shall repay to the Customer any sums paid in respect of the Price. The Company shall not be liable for any loss or damage whatever arising from such cancellation.

15.2  In the event that the Customer cancels delivery of Goods and/or the supply of Services the Customer shall be liable for any loss incurred by the Company (including, but not limited to, any loss of profits) up to the time of cancellation.

16. Privacy Act 1993

16.1  The Customer and the Guarantor/s (if separate to the Customer) authorises the Company to:

(a)  collect, retain and use any information about the Customer, to assess the Customer’s creditworthiness;
(b)  disclose information about the Customer, whether collected by the Company from the Customer directly or obtained by the Company 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.

16.2  Where the Customer and/or Guarantors are an individual the authorities under 16.1 are authorities or consents for the purposes of the Privacy Act 1993.

16.3  The Customer and/or Guarantors shall have the right to request the Company for a copy of the information about the Customer and/or Guarantors retained by the Company and the right to request the Company to correct any incorrect information about the Customer and/or Guarantors held by the Company.

17. General

17.1  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.

17.2  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.

17.3  The Company shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Company of these terms and conditions.

17.4  In the event of any breach of these terms and conditions by the Company the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods and/or the supply of Services.

17.5  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 the Company.

17.6  The Company may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.

17.7  The Company 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 the Company notifies the Customer of such change.

17.8  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.

17.9  The failure by the Company to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Company’s right to subsequently enforce that provision.

17.10  The parties agree that:

(a)  The execution and transmission of an email copy of any Order to the other shall constitute a valid and binding offer or acceptance (as the case may be); and
(b)  The production of an email copy or copies of an Order Form and these terms and conditions shall be deemed to be sufficient to satisfy the requirements of Section 2 of the Contracts Enforcement Act 1956.