Terms of trade
In these conditions unless the context otherwise requires:
- Company/Contractor means AJ & DA Caldwell Ltd T/A Caldwell Contracting.
- Buyer means the person, or company buying the goods from the Company.
- Products and/or services mean the products and/or services being purchased by the Buyer from the Company.
- Person includes a corporation, association, firm, company, partnership or individual.
- Quotation shall mean price on offer for a fixed term.
- Manager is the companies appointed decision maker.
- PPSA means the Personal Property Securities Act 1999.
The Buyer may request a Quotation from the Company setting out the price and quantity of the Goods/Services to be supplied. If the Quotation is acceptable to the Buyer, the Buyer may place an order within an acceptable timeframe. Quotations are valid for 30 days from the date of Quotation.
If any instruction is received by the Company from the Buyer for the supply of products and/or services, it shall constitute acceptance of the terms and conditions contained herein. Upon acceptance of these terms and conditions by the Buyer, the terms and conditions are definitive and binding.
Terms and Conditions -
These terms and conditions and any subsequent terms and conditions issued by the Company shall apply to all orders for the goods and the services made by the Buyer after the date and time at which these conditions are first delivered or sent by email or facsimile to, or otherwise brought to the notice of, any employee, staff member or representative of the Buyer. It shall be the Buyer’s responsibility to ensure that these conditions are promptly brought to the attention of the appropriate staff of the Buyer, and accordingly any order made by the Buyer after the date and time described above in this clause shall be deemed to be an acceptance of these conditions.
The Price shall be as indicated on invoices provided by the Company to the Buyer in respect of products and/ or services supplied; or The Price shall be the Price of the Company’s current Price at the date of delivery of any goods.
Payment, Late Payment, Default of Payment and Consequences of Default of Payment -
The method of payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Buyer and the Company. Subject to any provision to the contrary in the Contract, payment (being cash unless otherwise arranged in advance and confirmed in writing by AJ & DA Caldwell Ltd) shall be received on or before the 20th of the month following the date of the Company’s invoice to the Buyer, which shall be issued promptly on or after delivery of the goods. Where a 7 Day invoice is issued, payment is required within 7 days from date of invoice. Late payment shall incur interest at the rate of 2% per month (default interest rate) (5% per month for Silage/ Harvesting, 5% per month for 7 Day invoices & sub-purchase invoices) calculated on a daily basis.
This shall be payable on any monies outstanding under the Contract from the date payment was due until the date payment is received by the Company, but without prejudice to the Company’s other rights or remedies in respect of the Buyer’s default in failing to make payment on the due date. Without prejudice to any other remedies the Company may have, if at any time the Buyer is in breach of any obligation (including those relating to payment); the Company may suspend or terminate the supply of Goods to the Buyer and any of its other obligations under the terms and conditions. The Company will not be liable to the Buyer for any loss or damage the Buyer suffers because the Company exercised its rights under this clause.
The Buyer consents to the Company’s costs (including legal costs) of and incidental to the enforcement or attempted enforcement of the Company’s rights, remedies and powers under these Terms of Trade.
Credit Information -
The Buyer consents to the Company, any financier or credit-rating agency making enquiries of and obtaining any information about the financial standing and credit worthiness of the Buyer.
In the event that: -
any money payable to the Company becomes overdue, or in the Company’s opinion the Buyer will be unable to meet its payments as they fall due; or the Buyer 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 a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer; then 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 Buyer that remains unperformed in addition to, and without prejudice to any other remedies; and all amounts owing to the Company shall, whether or not due for payment, immediately become payable.
The Contract constitutes a security interest in the goods supplied by the Company to the Buyer for the purposes of the PPSA as security for payment by the Buyer of all amounts due under the Contract, including any future amounts. The Buyer agrees to promptly execute and deliver to the Company all assignments, transfers and other agreements and documents and do anything else which the Company may deem appropriate to perfect the Company’s security interest over the Buyer, or obtain the priority required by the Company or register (and renew registration) a financing statement for a security interest in favour of the Company. To the extent that Part 9 of the PPSA applies, the Buyer agrees that the provisions of sections 114(1)(a), 120, 122, 133 and 134 of the PPSA which are for the Buyer’s benefit, or place any obligations on the Company in the Buyer’s favour, will not apply; and where the Company has rights in addition to those in Part 9 of the PPSA, those rights will continue to apply.
To the extent that Part 9 of the PPSA applies, without limiting anything in the previous paragraph, the Buyer hereby waives its rights under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA, and its rights to receive a copy of a verification statement under section 148 of the PPSA in respect of any financing statement or financing change statement registered by the Company. The Buyer agrees to treat the security interest in the goods as a continuing and subsisting security with priority over a registered general security interest and any unsecured creditors, regardless of whether the goods have become fixtures at any time before payment has been made for them.
Reservation of title -
Ownership and title of the goods remains with The Company until the purchased price and all other monies owing by the Buyer, under the contract or any other contract to The Company, have been paid in full.
Access to Property -
The buyer will ensure that the property is in a safe state for the Contractor to perform the services and will advise the contractor of all relevant information relating to the property. The buyer will, at its cost, provide the contractor with power, water and such other services as are required for the contractor to perform the service.
If the buyer requires the services to be varied then the parties will in good faith meet and negotiate the variation to the services along with any consequential amendments to the price, term or any other provisions of this agreement. If the contractor’s costs fluctuate materially before or during the provisions of the services then the contractor may increase the price.
Events beyond the Contractor’s control -
The contractor is not liable to the buyer for any delay or failure to provide the services or for any loss or damage from such delay or failure to the extent that it was caused, in whole or in part, by an act of God, war, terrorism, civil disobedience, riots, strikes, industrial stoppage or unrest, fire, volcanic eruption, earthquake, shortage of suitable labour, materials or equipment or any other event beyond the contractors control.
Subcontracting & relationship between the parties -
The contractor may engage such subcontractors or agents as it considers fit to perform part or all of the services. The contractor is an independent contractor. Nothing in this agreement constitutes either party a partner, agent, employee or joint venturer of the other party.
Contractor’s Liability limited-
To the maximum extent permitted by law, the Contractor’s liability to the buyer is limited. In the event that it is determined that the contractor is liable to the buyer then the parties agree that the contractor’s maximum liability to the buyer will not exceed 50% of the price.
If any dispute arises between the parties, the parties will try and resolve the dispute by mediation before resorting to litigation or arbitration.
Silage Harvesting Terms and Conditions.
1. Silage forage shall be traded on a DM basis. Crop yields (wet weights) shall be assessed using certified weighbridges and the DM% shall be determined by Woodlands Research Station (AgResearch Ltd).
2. The purchaser acknowledges that in the event of total or partial loss of crop yield due to acts of nature (drought, frost, floods etc,) or any other factors outside the control of the seller, the seller shall not be liable to the purchaser for an inability to supply under this contract or for any production losses which may be suffered by the purchaser. In any such circumstances the seller shall as soon as practical inform the purchaser. In the event of total crop loss the seller/contractor (delete as applicable) shall repay the deposit to the purchaser in full.
3. The Silage forage will generally be delivered in whole truck loads and the required tonnage will be as close as practicable to that agreed upon. The total DM of silage forage delivered will be calculated using a field estimated DM% and therefore the actual amount delivered could vary from the agreed tonnage. The actual DM and therefore the calculated charged tonnage will be determined by DM% testing by (AgResearch Ltd, Woodlands, or other independent laboratory). As soon as reasonably practicable after the results of the laboratory tests are available the contractor shall provide the copies of the weighbridge and laboratory DM reports to the purchaser and seller, and shall issue a final invoice to the purchaser (“the invoice date”).
4. The party who is specified on page 1 of this contract for receiving payment (Seller and/or Contractor - “The receiving party”) from the purchaser shall account to the other party the amounts due to the other party within 5 working days of receipt by the receiving party of payment by the purchaser. In the event of total loss of crop as specified in clause 2 the seller shall not be liable to the contractor for any amounts under this contract or for the loss of the contracting work contemplated by this contract.
5. The seller is responsible for growing the crop to recommended best management practice guidelines, and the contractor is responsible for all harvesting operations including cartage, stacking and estimating the DM content of the silage forage at the time of harvest (unless otherwise agreed by all parties).
6. The contractor shall notify the purchaser of the pending arrival of silage forage by giving not less than two working days notice of anticipated harvest.
7. Following the harvest date notification the purchaser shall have the silage storage system ready for the arrival of the silage forage. The contractor reserves the right to charge for any extra costs to the contractor where the contractor’s reasonable opinion the silage storage system is not ready for the arrival of the silage forage. The purchaser may be asked to provide adequate labour to help with covering of the stack.
8. The purchaser shall notify each machine operator of any hazards in the area that they are working, prior to the commencement of work.
9. The purchaser shall ensure there is sufficient access for trucks (and trailer units – if applicable) to turn and tip off in the stack area which must also be free of obstructions and overhead wires. The contractor reserves the right to charge for any extra costs of trucking where in the contractors reasonable opinion there is inadequate access and/or substandard ground conditions.
10. When requested, the purchaser shall agree to complete an application for credit form provided by the receiving party and this contract shall be subject to such application for credit being acceptable to the receiving party. If the application for credit is not acceptable to the receiving party, the receiving party may terminate this contract and shall return any deposit paid by the purchaser to the purchaser and in such circumstance no party shall have any claim against the other.
11. The purchaser shall pay all deposits and final payments within the dates or times specified in the contract. If any payment hereunder is not made by the purchaser on the dates specified in this contract the purchaser must pay penalty interest at the rate of 5% above the base lending rate from time to time of the sellers bank on the amount owing hereunder from the due date until the date on which payment is made. The purchaser also agrees to the Contractor’s (AJ & DA Caldwell Ltd) Terms and Conditions of Trade.
12. If any payments of the deposits specified in this contract and/or final payment are not received on the due date the receiving party may serve notice on the purchase of such non-payment and if payment is not received in full within 5 days of such notice the receiving party has the right to cancel this contract. In such case the receiving party shall be entitled to retain all of the moneys that the receiving party has received from the purchaser under this contract but as between the sell and the contract the receiving party shall pay to the other party any moneys received from the purchaser that are due to the other party under the terms of this contract.
13. This contract shall be governed by and construed in accordance with the laws of New Zealand. The parties submit to the exclusive jurisdiction of the courts of New Zealand in relation to any legal action suit proceeding or other matter arising out of or in connection to this contract.