1. CONTRACT

(1). All agreements whether made in writing or verbally for supply of goods by Ohaeawai Nursery Ltd (hereinafter referred to as “OH”) to any customer shall be subject to these Terms which shall constitute the Contract between OH and the customer. (ii) Failure by OH to insist upon strict performance of these Terms or to exercise any of its rights shall not be deemed to be a waiver of any breach of any term, condition or right. (iii) Where a Customer is breach of any obligation under this contract, OH may, at their discretion, suspend or cancel the performance of its obligations under this contract. (iv) Subject to clause (v) below, in the case of a conflict between these Terms and any contractual provision claimed by a Customer, these Terms shall prevail. (v) No variation of these Terms shall apply unless in writing and signed by OH and the customer. (vi) No agent or representative of OH is authorised to make any representations warranties conditions or agreements not expressly confirmed by OH in writing and OH is not bound by any such unauthorised statements nor can any can any statements be taken to form a contract or part of a contract with OH. (vii) In the case of a signed Order Confirmation form not being returned by the Customer, receipt of the deposit by OH (or such other arrangements approved by OH) shall constitute confirmation of the order by the Customer and the establishment of a legal sales contract. Confirmation of an order by a Customer shall of all purposes be deemed to be acceptance of these terms, and every contract between the parties shall be deemed to incorporate these Terms. (viii) OH has the right to refuse any order at OH’s discretion.

2. PRICE

(i) The price specified as the price of the goods at the date of the contract is calculated on the then-current cost of labour, materials, insurance, levies, charges and rates. (ii) Where the cost to any such item to OH increased between the date of the contract and the date of delivery of the goods, the price may be increased at OH’s absolute discretion to include the amount by which such increase in costs shall be apportioned to the supply of the Customer together with such further increment as may be necessary to preserve OH’s gross profit margin on the increased amount of the contract. (iii) All prices quoted are for collection from OH’s nurseries at Ohaeawai. (iv) Additional services (which may include but are not limited to freight, Chemical dipping or spraying against pathogens where requested or advisable, virus or PSA testing, cool storage, processing amended or cancelled orders, transferring orders between Customers at Customers request etc. are chargeable in addition to the quoted price.

3. GOODS & SERVICE TAX (GST)

All prices quoted do not include GST. GST (if any) is payable by the Customer in addition to the purchase price quoted. Inland Revenue Department regulations require that the full GST content or any order must be paid at the time the initial deposit invoice is due.

4. PAYMENT

(i) A non-refundable deposit of 30% of the Order Value or such other percentage as required by OH at OH’s sole discretion shall be paid by the due date specified in the Deposit Invoice. No order shall be produced or supplied unless the deposit has been paid unless OH agrees otherwise. (ii) The balance of the purchase price shall be paid on delivery of the goods or on the Customer being notified that the goods are ready fo delivery or collection (whichever is the earlier) or by the due date specified on OH’s final invoice. Payments shall be without deduction or set-off. (iii) Penalty interest may be charged at the rate of 2.5% per month compounding (such rate being reviewable without notice) on any monies not paid in accordance with sub-clauses I and ii of the paragraph, from the due date for payment until the date of actual payment. (iv) Oh may refuse to deliver or to release for delivery any goods on a deferred payments basis. (v) OH reserves the right to withhold delivery of the goods until full payment for the goods has been received, or to request full pre-payment before starting production of any order. If OH at any time deems the credit of the Customer to be unsatisfactory, OH may require security for payment (which may include a Letter Of Credit / and or a post-dated cheque) and may suspend performance of OH’s obligations under the provision of the contract until the provision of sufficient security. All cost and expenses incurred by OH due to such suspension and recommencement of obligations shall be payable by the Customer on demand. (vi) The Customer shall pay or reimburse OH all cost and expenses in recovering or attempting to recover any amount overdue for payment including legal costs on a solicitor/client basis and/ or debt collection agency charges, including the solicitor/client costs of obtaining judgment against the Customer in a disputed matter. Such costs and expenses shall bear interest at the rate of 1.5% per month compounding from the date incurred until the date upon which the Customer pays or reimburses OH for the same. (vii) OH may at OH’s discretion apply any payment made by a Customer to any debt on that Customers account ledger.

5. RIGHTS OF CANCELLATION FOR NON-PAYMENT OF DEPOSIT

If the deposit referred to in clause 4 is not paid by the due date OH may at OH’s discretion transfer the goods to another Customers order and/or cancel the contract.

6. RISK AND INSURANCE

(i) Where goods are to be collected, the Customer must collect the goods within 7 days of OH notifying the Customer that the goods are ready for collection. Where goods are stored on the Customers behalf or at the Customers request, or where goods are to be collected, Risk to the goods passes to the customer on the expiry of 7 days after OH has notified that the goods are ready for delivery or collection. It is the Customers responsibility to insure the goods after the 7 day period. (ii) Where goods are dispatched to the Customer such goods shall be insured by OH (at the customers cost) against loss or damage during transit. Claims for loss or damage in transit must be advised to OH within 7 days of the expected date of receipt (where goods are lost) or the date of receipt (where goods are damaged). (iv) In the case of loss or damage to the goods prior to risk passing to the customer, the proceeds of OH’s insurance policy shall be payable to OH and shall be applied as follows: (a) in the cause of complete in transit where the Customer has paid the purchase price in full, OH will pay the proceeds of insurance to the customer. (b) In the case of partial destruction of the goods in transit where the customer has paid part of the purchase price, the liability of the Customer to pay the balance of the purchase price shall be determined by the insurance company’s assessment of the percentage of damage to the consignment applied to the total purchase price, such that the customer will remain liable to pay OH the value of the proportion of the goods assessed by the insurance company as undamaged. Where the part payment by the Customer is less than the value of the undamaged portion of the goods (“the undamaged value”) the Customer will pay the balance of the undamaged value to OH. If the customer has prior to delivery paid more than the undamaged value OH will repay the Customer the difference between the payment made by the Customer and the undamaged value. If the customer fails to advise OH of loss, damage or deterioration of goods in transit such as to obviate OH’s ability to claim under OH’s insurance, then the Customer shall bear the loss. (v) Notwithstanding any of the provisions of this clause, OH may deduct from any insurance payment to the Customer any sum owed to OH by the Customer under any other order or contract.

7. OWNERSHIP

(i) Legal title to all goods produced and/or supplied by OH shall remain with OH until Oh has been paid the full price of the goods together with any outstanding charges if applicable. The Customer acknowledges that until it has paid the full price of any goods it shall possess the goods only as a bailee for OH. (ii) The Customer shall store the goods in accordance with good Kiwifruit cultural practices in a secure pest and disease free environment and where the goods are Kiwifruit vines which have been planted out, shall mark them or otherwise adequately identify them as having been supplied by OH and shall take all measures to prevent infection of the plants by PSA-V (Pseudomonas syringae pv. Actinidiae) disease.(iii) Following any default by the Customer in payment for the goods, OH may at any time enter upon the premises, including locked or enclosed, or on any land where the goods have been stored or planted and repossess the goods. The customer hereby irrevocably gives OH, it agents and servants leave and a licence , without the necessity of giving notice , to enter on and into any such premises of land occupied by the Customer to search for and any of the goods supplied to the customer. The right to repossess the goods shall include the right to uproot plants that have been planted out and OH shall be under no liability to compensate The customer for any damage or loss arising howsoever from the exercising by OH of its rights under this clause where the customer is in default, where Oh has acted in good faith and/or where the Customer has failed to adequately identify the plants supplied by OH and/or where the Customer has refused to identify the plants having been requested to do so by OH. (iv) The Customer shall be liable for all losses, expenses and liabilities (including but not limited to cost on a solicitor/client basis) incurred by OH in attempting to exercise or in exercising its aforementioned remedies and the Customer hereby agrees to fully indemnify OH in respect of all such losses, costs, expenses and liabilities. (v) the Customer agrees that OH shall have the right and liberty to complete and have registered a Mortgage or Lien over any property owned by the Customer to secure monies owed by the Customer, and the Customer hereby irrevocably appoints OH as the attorney of the customer for the purpose of Mortgage or Lien over any property owned by the Customer to secure monies by the Customer, and the Customer hereby irrevocably appoints OH as the attorney of the customer for the purpose of executing such Mortgage or Lien. The Customer acknowledges that OH may register a Caveat in support of this agreement to mortgage or exercise of Lien. (vi) Where goods ( for example budwood or rootstocks) are reconstituted into another product OH shall have the right with complete assistance from the Customer to trace the goods to their ultimate destination in the event of non-payment and to recover their price plus any associated charges from the ultimate holder of the goods or OH’s Customer as OH see fit. The obligation is upon OH’s Customer to disclose these Terms to subsequent buyers in the event of the resale of the goods prior to title passing from OH to OH’s Customer. Until title passes from OH, the Customer is in no way released from their obligations and duties under these terms. If the goods or any part of the goods are on sold by the Customer prior to payment to OH, the Customer shall receive the proceeds of sale in trust and on account for OH and shall pay the said proceeds in reduction of the Customers indebtedness to OH.

8. REPRESENTATIONS AND WARRANTIES

8.1 OH shall not be bound to any person or entity for representations, warranty or description as to fitness, health, freedom from disease, suitability or otherwise unless made by OH in writing at time of contract.

8.2 The parties acknowledge that there is no certainty that the goods supplied are totally virus or disease free or free from any permanent disorder (especially in relation to Pseudomonas syringae pv. Actinidiae) and its entire sub species and Armillaria novae-zelandiae and all other wood fungi. Accordingly, any representation or warranty provided by OH will extend only to the fact that OH will take reasonable steps to ensure that all sources of grafted vines, budwood and rootstock are of merchantable quality and the goods have been grown or produced in accordance with god nursery practices. Responsibility to replace plants shall not extend to the replacement of vines planted out which later die or are found to suffer from viral disorders, disease, or other deficiencies that OH has no practical means of preventing as follow planting, horticultural conditions and practices that could affect the viral and disease status of the goods supplied.

8.3 Whilst OH takes care to ensure all grafted vines, budwood and rootstock propagating materials sold are true to variety name and description. Any express or implied conditions, statement or warranty arising by statute or common law are hereby excluded unless expressly agreed between the parties in writing at the time of order.

8.4 OH neither guarantees nor warrants that the grafted vine, budwood, root stock or other Kiwifruit material (‘the goods’) supplied will following delivery, grow in all circumstances, situations and conditions. However, OH subject to the above does warrant that the goods as at the time of delivery, are capable of growing successfully provided that normal industry accepted planting and growing best practice for dormant field grown vines, transplanting of potted plants are followed and documented (refer to OH’s Recommendation for the care, handling and transplanting of young Kiwifruit Vines). OH strongly advises against long term cool storage of Kiwifruit vines.

8.5 Notwithstanding any of the foregoing where, budwood or root stock material has been originally provided by the Customer, OH accept no responsibility in relation to the viral or disease status or true to type of that material.

9. GOODS INCORRECTLY SUPPLIED.

Goods incorrectly supplied which do not represent a suitable alternative to the variety ordered in the event of a shortfall) are returnable at OH’s expense and will be replaced with the correct variety (subject to availability) or a suitable alternative variety agreed to by the parties or credited in full provided OH is advised in writing and the goods returned in the original condition as supplied, within seven days of original delivery.

10. DESCRIPTION AND MATERIAL DEFECT.

10.1 Where any plants supplied by OH are mutually established to (a) be not true to their label description or (b) have a material defect due to poor propagation or care in the nursery, OH shall at OH’s option either supply replacement plants free of charge (subject to availability of varietal material), reimburse the Customer the value of the goods, or apply the value of the goods as a credit against future supply or against outstanding debts. OH has the right to retake possession of the goods wrongly supplied at OH’s discretion.

10.2 In the case 0f 10.1 (a) above OH must be notified in writing of such suspected wrong variety by 31st of March immediately following the date of delivery. Where plants are of the wrong variety notified to OH after March 31st. OH may at their discretion consider paying the cost of top grafting in the field of the correct variety by a third party contracted to the Customer. There shall be no on OH to carry out top grafting in the field themselves. Such cost shall not exceed the original value of the vines at delivery.

10.3 In the case of 10.1 (b) above OH must be notified of such material defect within 30 days of the date of despatch of the goods. Planting out of any vines supplied by OH or reconstitution into another product, storage in excess of 30 days after the date of dispatch, by the Customer or his/her agents shall be deemed as full acceptance by the Customer of the viability and fitness of the goods. For the purpose of this clause a “materially Defective” plant is one identified, within the sooner of 30 days of date of dispatch or planting out whichever is the sooner, as having failed to meet all of the following quality criteria: (a) Having a minimum of two buds on the scion; (b) showing healthy green xylem above the bud when the scion is cut laterally; (c) a well callused graft union; (d) a minimum cane diameter of 6mm measured at a point 30mm above the first Primary root; (e) a root system sufficient to sustain the vine. In any event, no claims for reimbursement or replacement will be considered while any monies that are owed to OH by the Customer remain unpaid and /or where the Customer has not met all obligations under these Terms. Samples of “materially defective” goods positively identified as having been supplied by OH must be available for OH’s inspection according to OH’s directions within 30 days of the date of dispatch from OH’s premises to support any claim for replacement or reimbursement pursuant to these provisions.

10.4 It is the Customers obligation to inspect all goods upon receipt and to satisfy themselves as to their viability, fitness, freedom from material defect merchantability and correct labelling (as per any associated delivery documentation) prior to planting. Inspection should not extend to the point of destruction of the goods as such action will invalidate any right to redress or claim. All vines planted will be deemed to have been inspected and to have met the Customers satisfaction.

10.5 The replacement at discounted or nil charges of any vine failures or losses at or after planting will be at OH’s sole discretion if the aforementioned requirements are not met and OH shall be under no obligation whatsoever to accept liability for or replace losses due to any cause once vines have been planted and beyond these terms of reference as storage, planting and growing conditions, husbandry techniques and management practices used by the Customer are beyond OH’s control. OH’s liability shall in no event extend beyond replacing materially defective plants.

11. SECONDS

No warranty whatsoever is given in respect to goods supplied specifically as “seconds” or supplied at no charge. The Customer accepts that vines supplied as “seconds” do not meet the normal quality criteria (as per clause 10.3 (a) to (e) ) and that it is the Customers responsibility to inspect and satisfy themselves as to the quality of the goods and suitability for the purpose for which the Customer requires the goods within 7 days from receipt[t of the goods and prior to planting out. If considered unacceptable, the goods must be returned to OH in the original and good condition within 10 days of receipt of the goods.

12. ONSALE

If the Customer on-sells or otherwise disposes of ownership or possession of any goods supplied by OH all claims, liability or responsibility in respect to those goods shall be deemed to have been waived. It is the Customers duty and obligation to disclose this condition to any third party to whom the goods ars thus disposed, and any claims in respect of those goods shall be directed to the Customer. Failure to notify the aforesaid third party shall not relieve the Customer of their contractual obligations to that party or to OH, nor place OH under any obligation to the third p[arty.

13. SHORT DELIVERY

(1) OH shall not be obliged to accept any claim for short delivery of a consignment unless lodged with OH by the Customer within 7 days of the sooner of either (a) the Customer receiving the goods or (b) the Customer being notified by OH of OH‘s having dispatched the goods, together with an allowance for carrier’s notified transit times. (ii) Where an order has not been fully deliverable in the year of delivery due to unexpected nursery/grading losses or other factors, the shortfalls will not be automatically carried over to the next available production year unless this has first been discussed and understood by both parties to the Contract. (III) OH shall not be liable for under any circumstances for consequential loss of damages due to short-delivery of an order.

14. DELIVERY AND COLLECTION.

(i) OH will arrange delivery of the goods unless the Customer otherwise or OH specifically requests the customer to collect the goods. (ii) Where goods are to be collected, all goods must be collected by the Customer within 7 days of OH notifying the Customer that the same are ready for collection. (iii) Should a Customer fail to collect or arrange for delivery of Goods within this period Oh may at OH’s discretion give the Customer a further 7 days verbal or written notice calling upon the Customer to collect the goods failing which OH may sell the goods elsewhere. (iv) Storage charges may apply from the date of original notification. Any goods stored on a Customers behalf are invoiceable at the time the goods were prepared for delivery / collection or placed in storage. (v) In the event OH incurs a loss upon resale following notice having been given that the goods are ready for collection, the Customer shall pay OH the amount of such loss upon demand. (vI) Orders may be delivered by instalments and each instalment may be independently invoiceable. Failure or inability by OH to deliver an order in its entirety or in a single consignment shall not entitle the Customer to repudiate the order or withhold payment of invoices. (vii) Unless OH has resold the goods in accordance with these Terms, the Customer shall be obliged to pay for them strictly in accordance with the provisions of these Terms and Conditions. (viii) The goods shall be allocated to Customers on a per-order basis unless OH judge that special circumstances justify allocation on a pro-rata basis or any other basis as determined from time to time by OH.

15. CANCELLED AND TRANSFERRED ORDERS

(i) Where OH specifically produces an order or procures an order or basic production materials (scion or stockwood etc.) for the Customer which is then cancelled by the Customer in part or in Full, The Customer shall be required to pay OH the full value of the cancelled portion of the order or value of the materials procured, due to the extra work and cost involved in producing or procuring that order or materials. (ii) If a secondary buyer for the cancelled goods is found buy the Customer or OH and OH incur a loss upon resale, The customer shall pay to OH the amount of such loss upon demand. (iiI) Where a deposit has been paid by a Customer on an order that is then transferred to a secondary buyer by the Customer before OH have been paid in full for the order, no de[posit shall be refunded until OH have received full payment for the order. (iv) Notwithstanding anything in this or any other clause, any cancelled order may be subject to a 10% restocking charge.

16. FORCE MAJEURE.

(i) OH shall not be liable for any delay or non-delivery of goods or non-performance of any contractual obligations due to matters beyond OH’s control or for which OH is not responsible including the default of any supplier or carrier, or adverse man made, natural and/or weather conditions restricting OH’s ability to harvest the nursery or process or deliver orders, graft or plant failure, or any act of government, or any edict of Kiwifruit Vine Health Inc. (KVH), stoppage of labour, strikes or commotions from any related or unrelated cause, or for failure howsoever caused by any supplier customer trading partner or any other entity. (ii) Where an order or consignment has been totally or partially damaged or destroyed in or prior to transit and the damage or destruction is paid by OH’s insurance cover, OH’s obligation to the Customer shall be limited to such sum as shall have been received by OH for from OH’s insurer in respect of such damage and be due to the Customer in terms of Clause 6 hereof.

17. TIME OF ESSENCE

Time shall strictly be of the essence for all obligations of the Customer pursuant to these Terms and conditions.

18. LIMITATION OF LIABILITY

(i) OH’s liability in any event (whether under these Terms and Conditions or otherwise howsoever) shall be limited to the replacement of any goods, whether grafted or dormant vines, budwood, stockwood, seedlings, seed, or other kiwifruit material and/or services supplied, or at the option of OH, to a refund of the of the sale price. (ii) OH shall not be liable in any circumstances for any loss of profits or any consequential, indirect or special loss, damage or injury of any kind whatsoever suffered by the Customer arising directly or indirectly from any breach of any of OH’s obligations arising from or in connection with the contract or from any non-performance or cancellation of the contract or from negligence on the part of OH, its servants or agents or contractors nor shall OH be liable for any loss damage or injury caused to the Customer, its servants, agents, contractors, visitors, tenants, trespassers or other persons whomsoever. The Customer will indemnify OH against any claim by the foregoing persons in respect of any loss, damage or injury arising as aforesaid. (iii) OH shall not be liable in any circumstances for any loss of profit or any consequential, indirect or special loss, damage or injury of any kind whatsoever arising directly or indirectly in relation to the fitness for use, fitness for normal rigors of transportation (in an insulated container or otherwise) , including any inherent vices of goods being transported, merchantable quality of goods or lack of correspondence with a sample or description, or arising from the failure of the Customer to satisfy itself that the goods are of the description, quality and character ordered by the Customer and required for the Customers purposes. (iv) If the contract is frustrated and/or the goods under the contract cannot be delivered for any reason whatsoever, it is expressly agreed that all expenses incurred by OH in connection with the said contract are to be set-off against any refund payable by OH to the Customer, and that the balance, if any, of OH’s expenses in connection with the said contract where they are in excess of the set-off, is to be paid to OH by the Customer. (V) Save as expressly provided in the contract, all expenses and implied conditions, statements or warranties, whether statutory or otherwise, are expressly excluded. (vi) No clause herein shall be construed as limiting any other clause. Where there is a conflict between clauses, the contract shall be construed to allow the widest limitation of liability in favour of OH. (vii) This Clause 18 shall survive termination of the contract between the parties, whether caused by breach, cancellation or effluxion of time.

19. SEVERANCE OF UNENFORCEABLE TERMS

If any of these Terms and Conditions is or becomes invalid or unenforceable, that part will be deemed to be severed and such invalidity or enforceability will not affect the remainder of these Terms and Conditions, which remain in force and effect permitted by law, subject to any modifications made by the severance or the invalid or unenforceable part.

20. GOVERNING LAW

The contract between the parties shall be governed by the law of New Zealand.

21. DEFINITIONS

For the purpose of these Terms and Conditions the word “OH” refers to Ohaeawai Nursery Ltd and “Customer” refers to the person or entity or any agent thereof with whom OH enters into a contract to sell goods.

2016 © Copyright Ohaeawai Nursery Ltd Terms of Trade.