Terms of Supply of Goods and Services to NZAgbiz Limited

The following terms and conditions (“Terms for Supply”) apply to all goods and services supplied to NZAgbiz Limited, its successor, or to NZAgbiz in its capacity as an agent for any principal (“NZAgbiz”) by you, the undersigned (“the Vendor”). “We” or “us” means NZAgbiz Limited, and where NZAgbiz is being supplied a product as an agent on behalf of a principal “we” or “us” includes that principal. In these Terms for Supply, “goods and services” means any goods or services that have been ordered or purchased by us.

1.Application

(a) These Terms for Supply apply to all orders by NZAgbiz for goods and services made after the date of this Agreement.

(b) These Terms for Supply take priority over any express or implied terms of trade or other provision if there is any conflict.

(c) NZAgbiz may, however, vary these Terms of Supply (but not retrospectively) for all or any future supplies by notice to the Vendor.

(d) No other terms apply unless:

i. they must apply by law; or

ii. they are agreed to by NZAgbiz in writing.

2. Orders

An NZAgbiz SAP order number must be provided for all orders.

3. Delivery

(a) Goods will not be accepted unless ordered by NZAgbiz on the agreed order form.

(b) The Vendor will deliver all Orders:

i. at the prices agreed with NZAgbiz (including freight, if applicable);

ii. to the address nominated by NZAgbiz with the Order;

(c) Time is of the essence in fulfilment of each Order.

(d) Delivery must be completed in each case by the time agreed to between the parties and if no time is agreed, then within a reasonable time.

(e) NZAgbiz may, at its option, and without limitation of any of its other rights, cancel any unfulfilled part of the Order if delivery is not made within the time specified. NZAgbiz is not required to accept partial or incomplete delivery. Acceptance of any part of an Order shall not bind NZAgbiz to accept future shipments.

4. Price

(a) The Vendor must sell the goods and services to NZAgbiz on its best terms of sale. The Vendor’s “terms of sale” include:

i. the price of the goods and services;

ii. any rebates or discounts allowed;

iii. any promotional support given;

iv. anything else that effectively reduces a customer’s overall costs. The Vendor’s “best terms” means terms at least as good as those offered to any other customer by the Vendor after taking into account:

v. sales volumes; and

vi. other similar factors.

(b) The Vendor must fully compensate NZAgbiz for any losses NZAgbiz incurs as the result of the Vendor failing to comply with this clause.

5. Variations

(a) If the Vendor wants to change any of the prices of the goods or services, the Vendor must first:

i. consult with NZAgbiz in good faith; and

ii. then give NZAgbiz written notice one calendar month prior of any proposed price change.

(b) Updated price lists must be supplied to NZAgbiz one calendar month prior before the effective date of any price increase.

(c) NZAgbiz may vary an Order at any time prior to delivery by written notice to the Vendor.

(d) If a variation by NZAgbiz causes an increase or decrease in the cost or time required for the Vendor’s performance, as soon as practicable the parties shall agree an equitable adjustment.

6. Payment

(a) NZAgbiz shall have no obligation to pay any amount prior to receipt of a correct invoice specifying the SAP Order number.

(b) NZAgbiz shall not be required to pay any part of an invoice that is disputed, until such dispute is resolved.

(c) Subject to clauses (a) and (b) above all payments will be made electronically into your bank account on the 20th of the month following the Invoice date unless:

ii. the parties agree otherwise.

iii. To ensure on time payment NZAgbiz requires the invoice to be received no later than the last day of the same month as supply.

(e) NZAgbiz may set off any amount that is or may become payable by it to the Vendor against any amount that is or may become payable by the Vendor to NZAgbiz.

7. Ownership & Risk

(a) Clear title to goods will pass to NZAgbiz on the earlier of delivery or any payment for those goods, except where the goods are subject to an acceptance test, in which case title will pass to NZAgbiz on the earlier of acceptance by NZAgbiz (as notified to Vendor in writing) or any payment for those goods.

(b) The goods remain at the Vendor’s risk until completion of delivery to and, where applicable, acceptance by NZAgbiz.

8. Quality

(a) The Vendor warrants that, if supplying goods:

i. the goods will satisfy the requirements of NZAgbiz and will be fit for the expected use and purpose required by NZAgbiz ; and

ii. the goods will conform as to design, quality, quantity, configuration, description and samples (if any) provided to NZAgbiz ; and

iii. the goods will be appropriately packaged, packed and securely stored until completion of delivery to minimise damage, deterioration and theft; and

iv. the goods will be free from any defect (including any latent defect) in design, materials and workmanship; and

v. the ownership, possession, use or resale of the goods will not infringe the proprietary or other intellectual property right or interest of any person; and

vi. if applicable, the goods will be properly installed and integrated into relevant NZAgbiz systems and property and will be compatible with, and will not damage, such systems and property; and

vii. all information provided, or to be provided, to NZAgbiz by the Vendor is accurate, complete and true.

(b) The Vendor warrants that:

i. the service will be performed promptly with due diligence, care and skill, and by appropriately trained, qualified, experienced and supervised persons;

ii. the service will satisfy the requirements of NZAgbiz, and meet all specifications stipulated by NZAgbiz in the Order;

iii. clear title to anything supplied as part of the service in the purchase Order will pass to NZAgbiz ;

iv. if applicable, anything supplied as part of the service will be properly installed and integrated into relevant NZAgbiz systems and property and will be compatible with, and will not damage, such systems and property;

v. the ownership, possession, use or resale by NZAgbiz of any result of the service will not infringe any proprietary or other intellectual property right or interest of any person;

vi. all information provided, or to be provided, to NZAgbiz by the Vendor is accurate, complete and true;

vii. the Vendor does not have any right, property, interest, or obligation in direct or indirect conflict with its obligations under any Order.

(c) These warranties are additional to any other warranties and guarantees given by the Vendor or implied by custom or law.

9. Deterioration of Goods

(a) Any goods which:

i. deteriorate, or

ii. have unacceptably short use by dates, or

iii. are for some other reason unlikely to be saleable, will not be paid for by NZAgbiz and must be taken back by the Vendor at its own cost.

(b) NZAgbiz may, however, dispose of these goods as it thinks fit, after first consulting in good faith with the Vendor, if:

i. it is not practicable to keep them or,

ii. if the Vendor fails to uplift them within a reasonable time.

10. Liability for Claims

(a) The Vendor indemnifies NZAgbiz against all claims or losses (including legal costs):

i. incurred by NZAgbiz in connection with the Orders,

ii. except to the extent that the claims or losses arise as the result of any negligent act or omission by NZAgbiz.

(b) The Vendor will indemnify NZAgbiz (including its officers, employees and agents) for any and all damage, loss and / or cost suffered or incurred by NZAgbiz arising in connection with any breach of the terms of an Order by the Vendor or through the negligent or wrongful act or omission of the Vendor.

(c) The Vendor will reimburse NZAgbiz for the cost of defending or settling any claim for which NZAgbiz could have liability caused or contributed to by any infringement of intellectual property rights or brought about by the Vendor’s actions or omissions.

(d) The Vendor will fully co-operate with NZAgbiz if requested to do so in relation to any claim or threatened claim.

(e) Except to the extent of direct damage or loss to the Vendor caused by a breach of the Terms for Supply by NZAgbiz , or by the negligent or wrongful act or omissions of NZAgbiz, NZAgbiz has no liability for any direct, indirect or special loss suffered (including, but not limited to, any loss of profits or savings) or costs incurred by the Vendor or any other person.

(f) NZAgbiz’s liability (if any) to the Vendor or anyone claiming through the Vendor will be limited to $5,000.00 per claim. This limitation of liability does not apply to payments due by to the Vendor for goods and services supplied.

11. Termination

(a) NZAgbiz may immediately, and without limiting any of its other rights against the Vendor, terminate any Order if the Vendor:

i. becomes insolvent or bankrupt or goes into receivership, statutory management or liquidation; or

ii. becomes unable to pay its debts as they become due or is presumed to be unable to pay its debts under section 287 of the Companies Act 1993; or

iii. ceases to carry on business; or

iv. makes a general assignment for the benefit of its creditors, has an administrator appointed or enters a scheme of arrangement; or

v. breaches any of the warranties in clause 8 above; or

vi. fails to comply with a term of an Order relating to delivery.

(b) On termination of any Order in accordance with this clause, each party will return to the other all property (including any intellectual property) and information belonging to that other party where such property and information was provided or created under that Order.

(c) Either party may terminate these Terms for Supply by 60 working days prior written notice to the other.

(d) NZAgbiz may cancel any Order if the Vendor is in default of any terms and fails to remedy the breach or default within seven (7) days of receiving notice from NZAgbiz of the breach or default.

(e) Termination will not affect the rights and obligations of either party, which have arisen before termination.

12. Dispute

(a) If a dispute arises between the Vendor and NZAgbiz :

i. the parties must first discuss the dispute and, in good faith, try and settle it; and

ii. if the parties cannot resolve the dispute, they must then refer it to mediation by a person appointed by LEADR or its successor before taking any other action.

(b) This clause will not apply to an application by either party for urgent interlocutory relief.

13. Waiver

(a) If RD1 delays or does not exercise any of its rights or remedies under these Terms for Supply or otherwise at law, that will not be a waiver of the right or remedy.

(b) Any waiver or consent NZAgbiz gives must be in writing and will be effective only in the specific instance and for the specific purpose for which it is given.

14. Severability

If part of these Terms for Supply is deemed to be invalid, illegal or unenforceable, the remaining provisions will remain in full force and effect.

15. Governing Law

The Terms for Supply will be governed by New Zealand law and the Vendor agrees to submit to the non-exclusive jurisdiction of the New Zealand Courts.

Effective June 2014