1.1 “TFS” shall mean The Feed Store Limited, or any agents, employees, successors or assigns thereof.
1.2 “Customer” shall mean the entity or person named on any form provided by the Customer to TFS (or any person acting on behalf of and with the authority of such entity or person) who buys or agrees to buy Goods. If the Customer includes two or more persons, those persons’ liability is joint and several. “Goods” shall mean Goods (including but not limited to future goods, specific goods) supplied by TFS to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and includes Goods described on any invoices provided by TFS to the Customer.
1.3 “Guarantor/s” shall mean the entity or person/s named on any form, contract or agreement provided by the Customer to TFS as the person/s that irrevocably guarantees payment of all moneys, including interest payments, which may at any time be owing to TFS by the Customer, and indemnifies TFS against any loss TFS may suffer in connection with the provision of credit to the Customer.
1.4 “Services” shall mean all services supplied by TFS to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.5 “Supplier” shall mean any third party feed Supplier that has entered into a contractual agreement directly with TFS to supply Goods to TFS, who shall, on receipt of an Order, supply those Goods directly to the Customer.
1.6 “PPSA” shall mean the Personal Properties Securities Act 1999.
1.7 “Price” shall mean the cost of the Goods as determined by TFS and any other amounts owing to TFS by the Customer.
1.8 “Order” means an agreement between TFS and the Customer to supply Goods and /or Services to the Customer.
1.9 “Quote” means a written offer from TFS to the Customer to supply Goods and/or Services for a specified price and subject to these terms and conditions (which shall be paramount) along with any terms and conditions contained in any such offer.
2.1 Headings are inserted for convenience and shall not affect the construction of this contract. The singular includes the plural and vice versa. Persons include incorporated and unincorporated entities. Words referring to one gender include the other.
2.2 If any provision of this contract shall be invalid or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced, or impaired.
2.3 This contract shall be subject to the laws and statutes of New Zealand and subject to the jurisdiction of the court geographically closest to the physical address of TFS.
2.4 TFS may sub-contract any part of this contract. No subcontractor has any authority to agree to any variation of this contract on behalf of TFS.
2.5 TFS may assign or transfer all or any part of its rights or obligations under this agreement without the Customer’s consent or the consent of the Guarantor.
2.6 TFS’s failure or delay in exercising or enforcing any right it has under this contract shall not operate as a waiver of TFS’s rights to exercise or enforce such rights or any other rights in the future.
2.7 TFS may, and the Customer may not, vary or replace this contract and it will be a condition of TFS continuing to supply Goods to the Customer that the Customer agrees to sign any variation or replacement of this contract.
2.8 Any waiver of these terms and conditions by TFS must be made in writing.
2.9 The Customer may not assign all or any of the Customer’s rights or obligations under this contract without the written permission of TFS.
2.10 TFS shall not be bound by any error or omission made by TFS on any invoice, quotation, estimate, or any other document issued by TFS.
2.11 The Customer shall notify TFS of any intention to cease trading or of any change in the Customers name, and/or contact details by giving at least seven (7) days’ notice
in writing prior to any such events taking effect.
3.1 Any instructions received by TFS from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by TFS shall constitute acceptance of this contract.
3.2 TFS will only supply Goods on these terms and conditions unless agreed otherwise in writing.
3.3 These terms and conditions along with invoices, credit application, quotations, estimates, order forms, or any other documents issued by TFS together form the contract and are the full agreement between the parties.
4. Quotations & Orders
4.1 Where a Quotation is given for the Price then:
a) all Quotes are based on rates and charges in effect at the date of the relevant Quote and are binding until (unless otherwise specified) 5pm of the date of the Quote. Any increases in rates and charges (including but not limited to, subcontracted labour, materials and fuel) shall result in an equivalent increase in the Quote; and
b) where Goods are required in addition to the Quote then the Customer agrees to pay the Price in effect at the date of the request for additional Goods; and
c) TFS reserves the right to amend the quotation in the event of circumstances beyond TFS’s control.
4.2 TFS, in its sole discretion reserves the right to decline, in whole or part, any Order.
5. Consumer Guarantees Act 1993 & Fair Trading Act 1986
5.1 Where Goods are supplied for the purposes of a business, the Customer agrees that the Consumer Guarantees Act 1993 shall not apply. Where the Customer purchases Goods for re-supply, the Customer’s contract must contain an equivalent provision to this clause.
5.2 Nothing in this contract is intended to have the effect of contracting out of the Consumer Guarantees Act 1993 and the Fair Trading Act 1986 except to the extent permitted by statute.
6.1 TFS may require a deposit of up to one hundred percent (100%) of the Price upon placement of an order for the Goods.
6.2 The Price of the Goods shall be either: a) as shown on TFS’s invoice, or b) stipulated (subject to clause 4) in TFS’s quotation.
6.3 Unless otherwise agreed the Price is exclusive of Goods and Services Tax, and any other applicable taxes, duties, charges and costs which are payable by the Customer in addition to the Price.
7.1 Unless otherwise agreed to in writing by TFS, payment of any invoice shall be due on the 20th day of the month following the date on which an invoice is issued for the Price.
7.2 Payment may be made by cash, cheque, or direct deposit to TFS nominated bank account.
7.3 TFS has the right to apply or appropriate any payment to any account of the Customer. Should the Customer have a number of accounts, then TFS is hereby given the right to combine any account and also set-off any amount between such accounts.
7.4 All payments by the Customer must be made in full and without any deduction or right of set-off or counterclaim. The Customer agrees, however, that any monies that TFS may owe the Customer on any account whatsoever may, at TFS’s option, be set-off against payments due by the Customer to TFS.
7.5 Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
7.6 The Customer must give TFS written notice within 5 working days of receiving an invoice if the Customer believes that the invoice is not correct. The notice must include full details of the error(s) claimed by the Customer. If the Customer has not given TFS valid notice of the error(s) within 5 working days of receiving the invoice, the Customer agrees to treat the invoice as correct, and must pay the amount due on the due date. If an invoice is disputed and that dispute cannot be immediately resolved, TFS can withhold or defer any future delivery of Goods pending resolution or may part-deliver having regard to the undisputed component. Once the dispute is resolved, the Customer must pay TFS within 3 working days the resolved amount due. Time is of the essence in respect of the Customer’s payment obligations to TFS.
7.7 The parties agree that the Customer has a monthly credit limit, as determined by TFS, in its sole discretion. Once the Customer has exceeded this monthly credit limit, the Customer agrees to make payment to TFS at the time of placing an Order and that TFS shall not supply Goods and/or Services as agreed under the Order, until payment has been made by the Customer and received by TFS, as satisfactory.
8.1 Without prejudice to any other rights or remedies that TFS may have against the Customer, the Customer agrees that in the event of default in payment by the Customer then the Customer agrees to pay on demand;
a) all costs (including, but not limited to, collection agency fees, commission, legal fees and any other costs on a solicitor and own client basis) incurred by TFS in recovering any amounts payable by the Customer to TFS; and
b) interest on the amount outstanding at the end of each month in which the Customers account is in arrears at the rate of three and a half percent (3.5%) per month (compounding) with such a rate after as well as before any judgement; and
c) a monthly administration fee of twenty five dollars ($25) by way of damages payable on the last day of each month in which the Customers account is in default; and
d) any costs incurred by TFS for storage of Goods; and
e) any losses or damages which may be incurred by TFS due to non-performance of any relevant contracts held with third party feed Suppliers.
8.2 TFS shall, in its sole discretion, determine whether the Customer is in default of payment. For the avoidance of doubt, the Customer is in default on the day following the date by which the invoice was due for full payment.
8.3 TFS may at any time, by notice to the Customer, declare all or any part of the money’s owing to TFS to be due and payable immediately, upon demand or at a later date as TFS may specify;
8.4 TFS may at TFS’s sole discretion stop further performance of this contract, require payment in cash before further performance of this contract, debit any other account the Customer may have to pay the sum owing, retain any deposit paid by the Customer (which shall be forfeited by the Customer) or terminate this contract without notice to the Customer upon the happening of any of the following events:
a) the Customer makes default in payment due under this contract or in payment of any moneys due by the Customer to TFS on any account whatsoever; or
b) the Customer is insolvent or takes any proceedings to reschedule any indebtedness; or
c) in TFS’s opinion the Customer is unable to pay indebtedness as it falls due; or
d) a receiver or manager is appointed to any property of the Customer.
8.5 In the event that TFS terminates this contract under clause 8.4 then TFS is also entitled to recover any losses or damages which may be incurred by TFS due to non-performance of any relevant contracts held with third party feed Suppliers.
8.6 In the event of default (as determined by TFS), by a Customer who has provided a Guarantor, TFS may, at its sole discretion, demand payment from the Guarantor, of all money’s owing to TFS by the Customer, and recover any loss TFS may or will suffer in connection with the provision of credit to the Customer. For the avoidance of doubt, TFS may take proceedings against the Guarantor before taking proceedings against the Customer.
9. Privacy Act
9.1 The Customer and/or any Guarantor under this Agreement, acknowledges that personal information collected or held by TFS is provided and may be held, used and disclosed for the following purposes:
a) administering, whether directly or indirectly, TFS’s contracts and enforcing TFS’s right thereunder; and
b) marketing Goods provided by TFS; and
c) ascertaining at any time the Customer’s and/or Guarantor’s creditworthiness and obtaining at any time credit reports, character references or credit statements; and
d) enabling TFS to notify any credit agency of any application for credit or default on any obligation of the Customer and/or the Guarantor to TFS and enabling TFS to provide such personal information to any credit agency so such credit agency can maintain correct records; and
e) enabling the Customer and/or Guarantor to communicate with TFS for any purpose.
9.2 Where the Customer and/or Guarantors are an individual the authorities under clause 9.1 are authorities or consents for the purposes of the Privacy Act 1993.
9.3 The Customer has the right under the Privacy Act 1993 to obtain access to and to request correction of any personal information concerning it held by TFS.
9.4 The Customer and Guarantor must notify TFS of any change in circumstance that may affect the accuracy of the information provided by them to TFS.
10.1 At TFS’s sole discretion, delivery of the Goods shall be deemed to be completed when:
a) TFS, or TFS’s agent, gives possession of the Goods directly to the Customer, or
b) possession of the Goods is given to a carrier, courier or other bailee for the purpose of transmission to the Customer.
10.2 Unless otherwise stated the costs of delivery shall be ex store and paid by the Customer in addition to the Price.
10.3 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 such discrepancy in quantity shall not exceed the lesser of twelve (12) metric tones or five percent (5%) of the amount ordered.
10.4 Where the Customer does not take delivery of the Goods by the delivery date specified, the Customer shall:
a) pay a redelivery fee; and
b) pay storage costs for the Goods until such time as the Customer accepts the Goods.
10.5 The time agreed for delivery (if any) shall not be an essential term of this agreement unless the parties agree otherwise in writing to make time of the essence.
10.6 In the event that TFS’s third party feed Suppliers are unable to supply feed to TFS, the parties agree that delivery shall be postponed until the third party feed Suppliers can resupply TFS. If delivery is expected to be postponed for longer than 5 working days, TFS shall reissue the invoice to the Customer extending the payment due date by the length of postponement. This clause shall apply without prejudice to TFS and shall not, in any way affect TFS’s rights, remedies and limitation of liability, under this agreement with the Customer.
11. Defects and Shortages
11.1 Any claim by the Customer as to incorrect performance or breach of this contract must be made to TFS in writing within five (5) working days of delivery (time being of the essence) of the Goods otherwise TFS shall be entitled to presume that the Goods have been delivered in good order and without defect or shortage in quantity.
11.2 In the event TFS, in its sole discretion, agrees with the Customer that the Goods that have been delivered are defective or there is a shortage in quantity, TFS shall promptly inform the Supplier of the Goods as to the defect or shortage in quantity, and shall, at the request of the Customer, assign any rights and remedies available to TFS against the Supplier to the Customer. However, TFS shall not be responsible for pursuing any rights or remedies against the Supplier on behalf of the Customer, and TFS shall not be liable to the Customer, or any other person, for any loss or damage resulting from the defected Goods or shortage in quantity.
12.1 In the event that any Goods are not manufactured by TFS then the Customer shall only have the benefit of the warranty (if any) provided by the manufacturer.
12.2 To the extent permitted by statute TFS excludes all other representations, warranties (whether express or implied) and liabilities whether in contract, tort, under any other legal principle, or otherwise.
13.1 Risk in the Goods shall pass from TFS to the Customer upon delivery of the Goods.
13.2 The Customer shall keep the Goods insured against fire, accident, theft and other risk as TFS may require in the names of TFS and the Customer for their respective rights and interests as well as providing for payment of policy proceeds to TFS until such time as payment is made in full and title in the Goods has passed to the Customer. Upon request by TFS the Customer shall provide a copy of the certificate of insurance noting TFS’s interest.
14.1 Property and ownership in the Goods will not pass to the Customer, but will remain with TFS, until payment in full of the Price.
14.2 Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such instrument is paid in full.
14.3 The Customer shall, at the request of TFS, assign payment of proceeds directly from the Customer’s debtor to TFS (including, but not limited to, milk cheque payments) for any amounts outstanding following the sale of Goods whether intermingled or not.
14.4 Until property in the Goods passes to the Customer:
a) the Customer shall hold the Goods as fiduciary bailee and agent for TFS; and
b) TFS shall have a right of lien over any Goods, whether or not those Goods have been paid for by the Customer. Such rights shall be additional to TFS’s rights referred to herein; and
c) TFS shall be entitled to enter upon the Customer’s premises to inspect the Goods; and
d) the Goods shall be stored separately and in a manner to enable them to be identified and cross-referenced to particular invoices issued by TFS to the Customer; and
e) the Customer acknowledges that if it mixes the Goods with other products or items such that the Goods are no longer separately identifiable then the Customer and TFS shall be owners in common of the new product or item; and
f) the proceeds for the sale of any Goods shall be kept in a separate account and held in trust to the sole benefit of TFS; and
g) if the Customer is in default of payment then the Customer shall deliver the Goods to TFS upon demand and in the event the Customer does not comply with such a demand then TFS shall be entitled to enter upon the Customer’s premises at any time and do all things necessary in order to take possession of the Goods. The Customer shall be liable for all costs of whatsoever nature associated with the exercise of TFS’s rights under this clause.
15.1 The Customer acknowledges that this contract creates a security interest in the Customer’s all present and after acquired inventory of Goods and, for avoidance of doubt, any intermingled Goods, or the proceeds of the sale of the Goods which TFS may register on the Personal Property Security Register. The Customer will, if requested by TFS, sign any documents, provide all necessary information and do anything else required by TFS to ensure that the security interest is a perfected purchase money security interest.
15.2 Until payment of the Price has been made in full the Customer acknowledges and agrees that in relation to Goods that are inventory, the Customer will not allow any non-purchase money security interest to arise in respect of the Goods unless TFS has perfected TFS’s purchase money security interest prior to the Customer taking possession of the Goods.
15.3 On being requested by TFS, the Customer shall promptly do all things (including signing any document) and provide all information necessary to enable TFS to perfect and maintain the perfection of any and each security interest granted to TFS by the Customer (including by registration of a Financing Statement.)
15.4 TFS and the Customer agree that nothing in sections 114(1)(a), 117(1)(c), 120, 122, 133 and 134 of the PPSA shall apply to these terms and conditions.
15.5 The Customer waives its rights as a debtor under sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
15.6 Unless otherwise agreed to in writing by TFS, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
15.7 To the extent permitted by law, the parties agree that if the Customer defaults in payment, or defaults under any condition or obligation to TFS under this agreement each security interest created in favour of TFS will become immediately enforceable.
16. Force Majeure
TFS will not be liable for any loss, damage, injury, late delivery or non-delivery due to any cause or circumstances beyond TFS’s control. Without limiting the generality of the foregoing, such cause or circumstances may include but is not limited to non-availability of or late departure or non-delivery by or late delivery by shipping or any other freight, act of government, strikes, lockouts, fire, accidents, act of war , flood, riots, civil commotion, malicious mischiefs or theft.
17. Limitation of Liabilities
17.1 The Customer acknowledges and understands that TFS is unable to guarantee supply of all or any of the Goods to be supplied and that TFS shall not be liable to the Customer, or to any other person, for any loss or damage caused by any delay in delivery however that delay is caused.
17.2 TFS shall not be liable to the Customer, or to any other person, for any loss or damage arising directly or indirectly from the Goods or their use.
17.3 TFS shall not be liable to the Customer, or to any other person, for any loss or damage arising from a defect in the Goods supplied. If requested, TFS shall assign any rights against the Supplier of the defective product, directly to the Customer.
17.4 TFS shall not be liable for any consequential, indirect or special damages or loss of any kind suffered by the Customer or any other person caused by any breach by TFS of any of TFS’s obligations under this contract.
17.5 To the extent permitted by statute if TFS is ever liable to the Customer, or any other person, and TFS cannot rely on the exclusions or representations, warranties, or liabilities set out in these terms and conditions then TFS’s liability is in all cases limited to the Price of the Goods.
17.6 Neither party shall be deemed in default of this contract to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any Act of God, war, terrorism, fire, natural disaster, accident, act of government, strikes, unavailability of material, or any other cause beyond the reasonable control of such party.
17.7 The Customer acknowledges that the Goods are bought relying solely upon the Customer’s skill and judgement and not as a result of any inducement, representation or promise made by TFS.
18.1 To end the contract, the Customer must give TFS a signed notice stating that the Customer is ending the contract under this clause and giving the details of why the contract is being ended.
18.2 If a contract is ended under this clause, TFS is entitled to recover the Price for any Goods ordered but not yet delivered as well as any losses or damages which may be incurred by TFS due to non-performance of any relevant contracts held with third party feed Suppliers as at the date the contract is ended.
19.1 All copyright, patent and intellectual property of any designs, drawings, specifications, sketches, or samples provided by TFS shall remain the property of TFS and shall only be used by the Customer for the use for which they were intended or supplied.
19.2 Where TFS has followed a design or instruction furnished by, or given by the Customer, then the Customer shall indemnify TFS against all damages, penalties, costs and expenses of TFS or in respect of which TFS may become liable through any work required to be done in accordance with such instructions involving an infringement of a patent, trademark, registered design or common law right.
20.1 For disputes arising between the parties under this contract where the Price is within the limits of the jurisdiction of the Disputes Tribunal the Customer expressly acknowledges and agrees that this contract may be taken as agreement that both parties consent for the dispute to be referred to the Disputes Tribunal for resolution.
20.2 For disputes arising between the parties under this contract where the Price exceeds the limits of the jurisdiction of the Disputes Tribunal the parties agree that before referring the dispute to a third party a period of no less than four (4) weeks shall pass to allow both parties time to attempt to negotiate or mediate an agreement. Failing an agreement acceptable to both parties being formed such disputes will be referred to a single arbitrator to be mutually agreed upon by the parties (or failing such agreement as appointed by the Arbitrators Institute of New Zealand council). Any determination of such arbitrator shall be final and binding on the parties and not subject to review.
21.1 TFS 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 TFS notifies the Customer of such change.
21.2 If there is any inconsistency between these terms and conditions and any order submitted by the Customer, or any other arrangement between the parties, these terms and conditions shall prevail, unless otherwise agreed in writing by the parties.
21.3 The Customer shall not approach any third party feed Supplier for direct discounts, use the name of TFS, or reveal TFS’s trading terms and conditions in any attempt to obtain personal discounts from businesses not associated with TFS.