1.1 “Kiwi Cattlestops” means Kiwi Cattlestops NZ Limited, its successors and assigns or any person acting on behalf of and with the authority of Kiwi Cattlestops NZ Limited.
1.2 “Customer” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
1.3 “Goods” means all Goods or Services supplied by Kiwi Cattlestops to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Goods as agreed between Kiwi Cattlestops and the Customer in accordance with clause 4 below.
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with Kiwi Cattlestops’ consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and Kiwi Cattlestops.
2.3 Where Kiwi Cattlestops gives advice, recommendations, information, assistance or service to the Client or the Clients agent, regarding the Goods or Services then it is given in good faith and Kiwi Cattlestops shall not be liable in any way whatsoever for any damages, losses or costs however arising resulting from the Client relying on the same.
2.4 Kiwi Cattlestops shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, the Contractor accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
3. Change in Control
3.1 The Customer shall give Kiwi Cattlestops not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by Kiwi Cattlestops as a result of the Customer’s failure to comply with this clause.
4. Price and Payment
4.1 At Kiwi Cattlestops’ sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Kiwi Cattlestops to the Customer; or
(b) the Price as at the date of delivery of the Goods according to Kiwi Cattlestops’ current price list; or
(c) Kiwi Cattlestops’ quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
4.2 Kiwi Cattlestops reserves the right to change the Price if a variation to Kiwi Cattlestops’ quotation is requested.
4.3 At Kiwi Cattlestops’ sole discretion a non-refundable deposit may be required.
4.4 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by Kiwi Cattlestops, which may be:
(a) before delivery of the Goods;
(b) for certain approved Customer’s, due twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by Kiwi Cattlestops.
4.5 Payment may be made by cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Customer and Kiwi Cattlestops.
4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to Kiwi Cattlestops an amount equal to any GST Kiwi Cattlestops must pay for any supply by Kiwi Cattlestops under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
5. Delivery of Goods
5.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Goods at Kiwi Cattlestops’ nominated depot; or
(b) Kiwi Cattlestops (or Kiwi Cattlestops’ nominated carrier) delivers the Goods to Kiwi Cattlestops’ nominated depot.
5.2 At Kiwi Cattlestops’ sole discretion the cost of delivery is in addition to the Price.
5.3 The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then Kiwi Cattlestops shall be entitled to charge a reasonable fee for redelivery and/or storage.
5.4 Any time or date given by Kiwi Cattlestops to the Customer is an estimate only. The Customer must still accept delivery of the Goods even if late and Kiwi Cattlestops will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.
6.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, Kiwi Cattlestops is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Kiwi Cattlestops is sufficient evidence of Kiwi Cattlestops’ rights to receive the insurance proceeds without the need for any person dealing with Kiwi Cattlestops to make further enquiries.
6.3 If the Customer requests Kiwi Cattlestops to leave Goods outside Kiwi Cattlestops’ premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
7.1 Kiwi Cattlestops and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid Kiwi Cattlestops all amounts owing to Kiwi Cattlestops; and
(b) the Customer has met all of its other obligations to Kiwi Cattlestops. 7.2 Receipt by Kiwi Cattlestops of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
7.3 It is further agreed that:
(a) until ownership of the Goods passes to the Customer in accordance with clause 7.1 that the Customer is only a bailee of the Goods and must return the Goods to Kiwi Cattlestops on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for Kiwi Cattlestops and must pay to Kiwi Cattlestops the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for Kiwi Cattlestops and must pay or deliver the proceeds to Kiwi Cattlestops on demand.
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of Kiwi Cattlestops and must sell, dispose of or return the resulting product to Kiwi Cattlestops as it so directs.
(e) the Customer irrevocably authorises Kiwi Cattlestops to enter any premises where Kiwi Cattlestops believes the Goods are kept and recover possession of the Goods.
(f) Kiwi Cattlestops may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Kiwi Cattlestops.
(h) Kiwi Cattlestops may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
8. Personal Property Securities Act 1999 (“PPSA”)
8.1 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Goods previously supplied by Kiwi Cattlestops to the Customer (if any) and all Goods that will be supplied in the future by Kiwi Cattlestops to the Customer.
8.2 The Customer undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Kiwi Cattlestops may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, Kiwi Cattlestops for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
(c) not register a financing change statement or a change demand without the prior written consent of Kiwi Cattlestops; and
(d) immediately advise Kiwi Cattlestops 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.
8.3 Kiwi Cattlestops and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
8.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
8.5 Unless otherwise agreed to in writing by Kiwi Cattlestops, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
8.6 The Customer shall unconditionally ratify any actions taken by Kiwi Cattlestops under clauses 8.1 to 8.5.
9. Security and Charge
9.1 In consideration of Kiwi Cattlestops agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
9.2 The Customer indemnifies Kiwi Cattlestops from and against all Kiwi Cattlestops’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Kiwi Cattlestops’ rights under this clause.
9.3 The Customer irrevocably appoints Kiwi Cattlestops and each director of Kiwi Cattlestops as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 9 including, but not limited to, signing any document on the Customer’s behalf.
10. Customer’s Disclaimer
10.1 The Customer hereby disclaims any right to rescind, or cancel any contract with Kiwi Cattlestops or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by Kiwi Cattlestops and the Customer acknowledges that the Goods are bought relying solely upon the Customer’s skill and judgment.
11.1 The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify Kiwi Cattlestops of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford Kiwi Cattlestops an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Kiwi Cattlestops has agreed in writing that the Customer is entitled to reject, Kiwi Cattlestops’ liability is limited to either (at Kiwi Cattlestops’ discretion) replacing the Goods or repairing the Goods.
12.1 Returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 11.1; and
(b) Kiwi Cattlestops has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Customer’s cost within ten (10) days of the delivery date; and
(d) Kiwi Cattlestops will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
12.2 Kiwi Cattlestops may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of twenty-five percent (25%) of the value of the returned Goods plus any freight.
12.3 Non-stocklist items or Goods made to the Customer’s specifications are under no circumstances acceptable for credit or return.
13.1 Subject to the conditions of warranty set out in clause 13.2 Kiwi Cattlestops warrants that if any defect in any workmanship of Kiwi Cattlestops becomes apparent and is reported to Kiwi Cattlestops within five (5) months of the date of delivery (time being of the essence) then Kiwi Cattlestops will either (at Kiwi Cattlestops’ sole discretion) replace or remedy the workmanship.
13.2 The conditions applicable to the warranty given by clause 13.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Customer to properly maintain any Goods; or
(ii) failure on the part of the Customer to follow any instructions or guidelines provided by Kiwi Cattlestops; or
(iii) any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and Kiwi Cattlestops shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without Kiwi Cattlestops’ consent.
(c) in respect of all claims Kiwi Cattlestops shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.
13.3 For Goods not manufactured by Kiwi Cattlestops, the warranty shall be the current warranty provided by the manufacturer of the Goods. Kiwi Cattlestops shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
14. Consumer Guarantees Act 1993
14.1 If the Customer is acquiring Goods for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by Kiwi Cattlestops to the Customer.
15. Intellectual Property
15.1 Where Kiwi Cattlestops has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of Kiwi Cattlestops.
15.2 The Customer warrants that all designs, specifications or instructions given to Kiwi Cattlestops will not cause Kiwi Cattlestops to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Kiwi Cattlestops against any action taken by a third party against Kiwi Cattlestops in respect of any such infringement.
15.3 The Customer agrees that Kiwi Cattlestops may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Kiwi Cattlestops has created for the Customer.
16. Default and Consequences of Default
16.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Kiwi Cattlestops’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
16.2 If the Customer owes Kiwi Cattlestops any money the Customer shall indemnify Kiwi Cattlestops from and against all costs and disbursements incurred by Kiwi Cattlestops in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Kiwi Cattlestops’ collection agency costs, and bank dishonour fees).
16.3 Without prejudice to any other remedies Kiwi Cattlestops may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions Kiwi Cattlestops may suspend or terminate the supply of Goods to the Customer. Kiwi Cattlestops will not be liable to the Customer for any loss or damage the Customer suffers because Kiwi Cattlestops has exercised its rights under this clause.
16.4 Without prejudice to Kiwi Cattlestops’ other remedies at law Kiwi Cattlestops shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Kiwi Cattlestops shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Kiwi Cattlestops becomes overdue, or in Kiwi Cattlestops’ opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
17.1 Kiwi Cattlestops may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice Kiwi Cattlestops shall repay to the Customer any money paid by the Customer for the Goods. Kiwi Cattlestops shall not be liable for any loss or damage whatsoever arising from such cancellation.
17.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by Kiwi Cattlestops as a direct result of the cancellation (including, but not limited to, any loss of profits).
17.3 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
18. Privacy Act 1993
18.1 The Customer authorises Kiwi Cattlestops to:
(a) collect, retain and use any information about the Customer, for the purpose of assessing the Customer’s creditworthiness or marketing products and services to the Customer; and
(b) disclose information about the Customer, whether collected by Kiwi Cattlestops from the Customer directly or obtained by Kiwi Cattlestops from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.
18.2 Where the Customer is an individual the authorities under clause 18.1 are authorities or consents for the purposes of the Privacy Act 1993.
18.3 The Customer shall have the right to request Kiwi Cattlestops for a copy of the information about the Customer retained by Kiwi Cattlestops and the right to request Kiwi Cattlestops to correct any incorrect information about the Customer held by Kiwi Cattlestops.
19. Unpaid Kiwi Cattlestops’ Rights
19.1 Where the Customer has left any item with Kiwi Cattlestops for repair, modification, exchange or for Kiwi Cattlestops to perform any other service in relation to the item and Kiwi Cattlestops has not received or been tendered the whole of any moneys owing to it by the Customer, Kiwi Cattlestops shall have, until all moneys owing to Kiwi Cattlestops are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
19.2 The lien of Kiwi Cattlestops shall continue despite the commencement of proceedings, or judgment for any moneys owing to Kiwi Cattlestops having been obtained against the Customer.
20.1 The failure by Kiwi Cattlestops to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Kiwi Cattlestops’ right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
20.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.
20.3 Kiwi Cattlestops shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Kiwi Cattlestops of these terms and conditions (alternatively Kiwi Cattlestops’ liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
20.4 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by Kiwi Cattlestops nor to withhold payment of any invoice because part of that invoice is in dispute.
20.5 Kiwi Cattlestops may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
20.6 The Customer agrees that Kiwi Cattlestops may amend these terms and conditions at any time. If Kiwi Cattlestops makes a change to these terms and conditions, then that change will take effect from the date on which Kiwi Cattlestops notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for Kiwi Cattlestops to provide Goods to the Customer.
20.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
20.8 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.