Pro Irrigation - Terms and Conditions of Trade
1.1. “Pro Irrigation” shall mean Pro Irrigation Limited, or any agents or employees thereof.
1.2. “Customer” shall mean the customer (or any person acting on behalf of and with the authority of the customer) as described on any quotations, invoices, or such like.
1.3. “Goods” means all products and materials supplied by Pro Irrigation to the Customer at any time and includes goods described on any invoice, quotation or such like provided to the Customer.
1.4. “Services” shall mean all services supplied by Pro Irrigation to the Customer at any time and includes any advice and recommendations (and where the context permits shall include any supply of Goods as defined above).
1.5. “Price” shall mean the price payable for the provision of Goods and Services as agreed by Pro Irrigation and the Customer.
2.1. Any instructions received by Pro Irrigation from a Customer for the supply of Goods and Services shall constitute a binding contract and the acceptance of the terms and conditions contained herein.
3.1. Where a quotation has been provided by Pro Irrigation, that quotation remains valid for 20 working days and must be accepted by the customer prior to commencement of work. The quotation may be withdrawn at any time before acceptance.
3.2. All quotations are based on costs and charges ruled at the date of the quotation. Any changes in the costs arising from sources beyond the control of Pro Irrigation (for example changes in prices charged by suppliers) shall be borne by the Customer.
3.3. The quotation shall be exclusive of Goods and Service Tax unless specifically stated to the contrary.
- Price and Payment
4.1. The Price shall be indicated on an invoice provided by Pro Irrigation to the Customer, or as quoted in accordance with clause 3.
4.2. Pro Irrigation reserves the right to change the Price in the event of a variation to the quotation. Any variation from the plan of scheduled works or specifications will be charged for and shown as a variation on the invoice.
4.3. Payment of the claimed amount is due and payable for domestic Customers no later than 7 working days after receipt of our invoice, and for commercial Customers no later than the 20th of the month following supply.
4.4. Where work is undertaken over a period exceeding one month, invoices may be issued for progress payments covering work done and costs incurred up to the date of invoice. Such payment claims may include the reasonable value of authorised variations and the value of materials delivered to the site but not yet installed.
4.5. If the Customer disagrees for any reason with the claimed amount, the Customer must respond to Pro Irrigation in writing before payment is due. Overdue invoices shall attract interest at 2.5% per month and will be calculated on a daily basis until payment is made in full. Any expenses incurred by Pro Irrigation in recovering this debt will be added to the Customer’s account, including any Solicitors fees or debt collection agency fees.
- Risk and Ownership
5.1. All risk for the Goods passes on to the Customer on delivery. If any loss arises from theft, destruction or damage from whatever cause following delivery but prior to ownership passing to the Customer, then Pro Irrigation is entitled to receive all insurance proceeds payable for the goods.
5.2. Ownership in the Goods shall not pass from Pro Irrigation to the Customer until the Goods have been paid for in full. Receipt by Pro Irrigation of any form of payment other than cash shall not constitute payment until that form of payment has been honoured, cleared or recognised and until then Pro Irrigation’s ownership rights in the Goods shall continue.
5.3. It is agreed between Pro Irrigation and the Customer that:
1) Where practical the Goods shall be kept separate and identifiable until payment is received.
2) Until such time as ownership of the Goods shall pass to the Customer, Pro Irrigation may give notice in writing to the Customer to return the Goods. Upon such notice being given the rights of the Customer to obtain ownership shall cease.
3) The Customer is only a bailee of the Goods and until such time as Pro Irrigation has received payment in full for the Goods and the Customer shall hold any proceeds from the sale of the Goods on trust for Pro Irrigation.
4) Until such time as ownership of the Goods pass to the Customer if the Goods are converted into other products. The parties agree Pro Irrigation shall be the owner of the end products; and
5) If the Customer fails to return the Goods, then Pro Irrigation may enter upon the land and premises owned, occupied or used by the Customer, or any premises where the Goods are situated and take possession of the goods and Pro Irrigation will not be held liable for any reasonable loss or damage suffered as a result of any action Pro Irrigation under this clause.
- Personal Property Securities Act 1999 (“PPSA”)
6.1. Upon assenting to these Terms of Trade the Customer agrees that these terms constitute security agreement for the purposes of the PPSA and that a security interest is taken in all Goods previously supplied by Pro Irrigation to the Customer (if any) and all Goods that will be supplied in the future.
6.2. The Customer agrees to:
1) Sign any further documents and/or provide any further information (such information to be complete, accurate and up to date in all respects) which Pro Irrigation may reasonably require to register a financing statement or financing change statement on the Personal Properties Securities Register.
2) Indemnify, and upon demand reimburse, Pro Irrigation for all expenses incurred in registering a financing statement or a financing change statement on the Personal Properties Securities Register or releasing any Goods charged thereby.
3) Not register a financing change statement or a change demand without the prior written consent of Pro Irrigation; and
4) Immediately advise Pro Irrigation of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales
6.3. Pro Irrigation and the customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
6.4. The Customer waives its rights as a debtor under sections 16,120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
6.5. Unless otherwise agreed to in writing by Pro Irrigation, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
6.6. The Customer shall unconditionally ratify any action taken by Pro Irrigation under clauses 6.1 to 6.5
7.1. Subject to the conditions of warranty set out in clause 7.2, Pro Irrigation warrants that if any defect in any workmanship of Pro Irrigation becomes apparent and is reported to Pro Irrigation within 12 months of the date of delivery then Pro Irrigation with either (at Pro Irrigation’s sole discretion) replace or remedy the workmanship.
7.2. The conditions applicable to the warranty provided in clause 7.1 are:
- a) The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through the failure on the part of the Customer to properly maintain any Goods, to follow any instructions or guidelines given by Pro Irrigation, use of the Goods otherwise than any application specified on a quote or such like, the continued use of the Goods after any defect becomes apparent from wear and tear or an accident.
- b) The warranty shall cease, and Pro Irrigation shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired or altered without Pro Irrigations consent.
- c) In respect of all claims Pro Irrigation shall not be liable to compensate for any delay in either replacing or remedying the workmanship
7.3. For Goods not manufactured by Pro Irrigation, the warranty shall be the current warranty provided by the manufacturer of the Goods.
7.4. In the case of second-hand Goods, the Customer acknowledges that he/she had full opportunity to inspect the same and that he accepts the same with all faults and that no warranty is given by Pro Irrigation as to the quality or suitability for purpose and any implied warranty is expressly excluded.
- Intellectual Property
8.1. Where Pro Irrigation has designed, drawn or written plans for the Customer, then the copyright in those designs and documents shall remain vested in Pro Irrigation, and shall only be used by the Customer at Pro Irrigation’s discretion.
8.2. The Customer warrants that all designs or instructions to Pro Irrigation will not cause Pro Irrigation to infringe any patent, registered design, or trademark in the execution of the Customer’s orders and the Customer agrees to indemnify Pro Irrigation against any action taken by third party against Pro Irrigation in respect of any such infringement.
- Consumer Guarantees Act
9.1. If the Customer is acquiring Goods for the purpose of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act does not apply to the supply of Goods by Pro irrigation to the Customer.
10.1. Pro Irrigation may cancel any contract to which these terms of trade apply by giving written notice to the Customer. On giving such notice Pro Irrigation shall repay to the Customer any amount paid in respect to the price. Pro Irrigation shall not be liable for any loss or damage arising from such cancellation.
10.2. In the event that the Customer cancels delivery of the Goods the Customer shall be liable for any loss incurred by Pro Irrigation (including but not limited to the loss of profits) up to the time of the cancellation.
- Privacy Act
11.1. The Customer authorises Pro Irrigation to collect, retain and use any information about the Customer, for the purpose of assessing the Customer’s credit worthiness, enforcing any rights under this contract or marketing and Goods and Services provided by Pro Irrigation to the Customer.
11.2. The Customer authorises Pro Irrigation to disclose any information obtained to any person for the purposes set out in clause 10.1
11.3. Where the Customer is a natural person the authorities under clauses 10.1 and 10.2 are authorities or consents for the purpose of the Privacy Act 1993
12.1. Pro Irrigation’s liability shall be limited to the value of the Goods and Services provided.
12.2. The Consumer Guarantees Act 1993, the Fair-Trading Act 1986 and other statues may imply warranties or other conditions or impose obligations on Pro Irrigation which cannot by law be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on Pro Irrigation, Pro Irrigation’s liability shall where it is allowed, be excluded, or only apply to the minimal extent required by the relevant statute.
12.3. Except as otherwise provided, Pro Irrigation shall not be liable for any loss or damage of any kind whatsoever arising from the provision of Goods and Services to the Customer including consequential loss whether suffered or incurred by the Customer or another person whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss arises directly or indirectly from Goods and Services provided to Pro Irrigation to the Customer.
12.4. The Customer shall indemnify Pro Irrigation against all claims and loss of any kind whatsoever however caused or arising as a result of the negligence of Pro Irrigation or otherwise, brought by any person in connection with any matter, act, omission or error by Pro Irrigation in connecting with the Goods and Services.
13.1. In the event of a dispute arising between Pro Irrigation and the Customer, such dispute shall in the first instance be referred to mediation for a resolution.
13.2. In the event that a resolution cannot be reached at mediation within 30 days of referral to mediation, either party may take legal action to resolve the dispute.
13.3. Nothing in this clause prevents Pro Irrigation from taking legal action to enforce payment of a debt due, nor where required to seek interlocutory or injunctive relief.
14.1. The Customer shall be solely responsible for obtaining any necessary consent under and for compliance with all legislation, regulation or rules having the force of law in connection with the installation, operation and provision of the Goods and Services
14.2. Pro Irrigation shall be entitled to rely on the accuracy and shall not be obliged to check any plans specifications and other information supplied by the Customer. Pro Irrigation shall bear no responsibility for goods supplied in compliance to those plans and specifications.
14.3. Neither Pro Irrigation nor the Customer will be liable to the other for any breach of this agreement by any extraordinary occurrences which are beyond the reasonable control of the party in question.
14.4. The Construction Contract Act 2002 applies where applicable.
14.5. These Terms of Trade constitute the entre agreement and supersede and extinguish all prior agreements between Pro Irrigation and the customer.
14.6. These Terms 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 in relation to any dispute.