Terms & Conditions of Trade

Definitions

“Advance Dairy” means Advance Dairy & Pump Ltd, its successors and assigns or any person acting on behalf of and with the authority of Advance Dairy & Pump Ltd.

“Customer” means the person/s buying the Goods (and/or hiring Equipment) 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.

“Goods” means all Goods or Services supplied by Advance Dairy 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). Services shall include but not be limited to the provision of all cartage services and supplies and all charges for labour and work.

“Equipment” means all Equipment including any accessories supplied on hire by Advance Dairy to the Customer (and where the context so permits shall include any supply of Services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by Advance Dairy to the Customer.

“Price” means the Price payable for the Goods/Equipment hire as agreed between Advance Dairy and the Customer in accordance with clause 4 below.

Acceptance

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/Equipment.

These terms and conditions may only be amended with Advance Dairy’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and Advance Dairy.

Change in Control

 The Customer shall give Advance Dairy 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 Advance Dairy as a result of the Customer’s failure to comply with this clause.

Price and Payment

 At Advance Dairy’s sole discretion the Price shall be either:

 as indicated on any invoice provided by Advance Dairy to the Customer; or

Advance Dairy’s 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.

Advance Dairy reserves the right to change the Price if a variation to Advance Dairy’s quotation is requested.

At Advance Dairy’s sole discretion a deposit may be required.

Time for payment for the Goods/Equipment being of the essence, the Price will be payable by the Customer on the date/s determined by Advance Dairy, which may be:

 on delivery of the Goods/Equipment;

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;

the date specified on any invoice or other form as being the date for payment; or

failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by Advance Dairy.

Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Customer and Advance Dairy.

Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to Advance Dairy an amount equal to any GST Advance Dairy must pay for any supply by Advance Dairy under this or any other agreement for the sale of the Goods/hire of the Equipment. 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.

Delivery of Goods/Equipment

 Delivery (“Delivery”) of the Goods/Equipment is taken to occur at the time that:

 the Customer or the Customer’s nominated carrier takes possession of the Goods/Equipment at Advance Dairy’s address; or

Advance Dairy (or Advance Dairy’s nominated carrier) delivers the Goods/Equipment to the Customer’s nominated address even if the Customer is not present at the address.

At Advance Dairy’s sole discretion the cost of delivery is in addition to the Price.

The Customer must take delivery by receipt or collection of the Goods/Equipment whenever either is tendered for delivery. In the event that the Customer is unable to take delivery of the Goods/Equipment as arranged then Advance Dairy shall be entitled to charge a reasonable fee for redelivery of the Goods/Equipment and/or the storage of the Goods.

Advance Dairy may deliver the Goods/Equipment in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

Any time or date given by Advance Dairy to the Customer is an estimate only. The Customer must still accept delivery of the Goods/Equipment even if late and Advance Dairy will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.

Risk

 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.

If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, Advance Dairy is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Advance Dairy is sufficient evidence of Advance Dairy’s rights to receive the insurance proceeds without the need for any person dealing with Advance Dairy to make further enquiries.

If the Customer requests Advance Dairy to leave Goods outside Advance Dairy’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.

Title To Goods

 Advance Dairy and the Customer agree that ownership of the Goods shall not pass until:

 the Customer has paid Advance Dairy all amounts owing to Advance Dairy; and

the Customer has met all of its other obligations to Advance Dairy.

Receipt by Advance Dairy 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.

It is further agreed that:

 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 Advance Dairy on request.

the Customer holds the benefit of the Customer’s insurance of the Goods on trust for Advance Dairy and must pay to Advance Dairy the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed. 

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 Advance Dairy and must pay or deliver the proceeds to Advance Dairy on demand.

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 Advance Dairy and must sell, dispose of or return the resulting product to Advance Dairy as it so directs.

the Customer irrevocably authorises Advance Dairy to enter any premises where Advance Dairy believes the Goods are kept and recover possession of the Goods.

Advance Dairy may recover possession of any Goods in transit whether or not delivery has occurred.

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 Advance Dairy.

Advance Dairy may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.

Personal Property Securities Act 1999 (“PPSA”)

 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:

 these terms and conditions constitute a security agreement for the purposes of the PPSA; and

a security interest is taken in all Goods/Equipment previously supplied by Advance Dairy to the Customer (if any) and all Goods/Equipment that will be supplied in the future by Advance Dairy to the Customer.

The Customer undertakes to:

 sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Advance Dairy may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;

indemnify, and upon demand reimburse, Advance Dairy for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods/Equipment charged thereby;

not register a financing change statement or a change demand without the prior written consent of Advance Dairy; and

immediately advise Advance Dairy of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.

Advance Dairy and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.

The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.

Unless otherwise agreed to in writing by Advance Dairy, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.

The Customer shall unconditionally ratify any actions taken by Advance Dairy under clauses 8.1 to 8.5.

Security and Charge

 In consideration of Advance Dairy agreeing to supply the Goods/Equipment, 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).

The Customer indemnifies Advance Dairy from and against all Advance Dairy’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Advance Dairy’s rights under this clause.

The Customer irrevocably appoints Advance Dairy and each director of Advance Dairy 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.

Customer’s Disclaimer

 The Customer hereby disclaims any right to rescind, or cancel any contract with Advance Dairy or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by Advance Dairy and the Customer acknowledges that the Goods are bought relying solely upon the Customer’s skill and judgment.

Defects

 The Customer shall inspect the Goods/Equipment on delivery and shall within seven (7) days of delivery (time being of the essence) notify Advance Dairy of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote.  The Customer shall afford Advance Dairy an opportunity to inspect the Goods/Equipment 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/Equipment shall be presumed to be free from any defect or damage. For defective Goods/Equipment, which Advance Dairy has agreed in writing that the Customer is entitled to reject, Advance Dairy’s liability is limited to either (at Advance Dairy’s discretion) replacing the Goods/Equipment or repairing the Goods/Equipment.

Returns Of Goods

 Returns of Goods will only be accepted provided that:

 the Customer has complied with the provisions of clause 11.1; and

Advance Dairy has agreed in writing to accept the return of the Goods; and

the Goods are returned at the Customer’s cost within seven (7) days of the delivery date; and

Advance Dairy will not be liable for Goods which have not been stored or used in a proper manner; and

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.

Returned goods may (at Advance Dairy’s sole discretion), incur restocking and handling fees.

Non-stocklist items or Goods made to the Customer’s specifications are under no circumstances acceptable for credit or return.

Warranty

 To the extent permitted by statute, no warranty is given by Advance Dairy as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. Advance Dairy shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.

The conditions applicable to the warranty given on Goods supplied by Advance Dairy are contained on the “Warranty Card” that will be supplied with the Goods.

Consumer Guarantees Act 1993

 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 Advance Dairy to the Customer.

Default and Consequences of Default

 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two percent (2%) per calendar month (and at Advance Dairy’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

If the Customer owes Advance Dairy any money the Customer shall indemnify Advance Dairy from and against all costs and disbursements incurred by Advance Dairy in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Advance Dairy’s collection agency costs, and bank dishonour fees).

Without prejudice to any other remedies Advance Dairy may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions Advance Dairy may suspend or terminate the supply of Goods/Equipment to the Customer. Advance Dairy will not be liable to the Customer for any loss or damage the Customer suffers because Advance Dairy has exercised its rights under this clause.

Without prejudice to Advance Dairy’s other remedies at law Advance Dairy shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Advance Dairy shall, whether or not due for payment, become immediately payable if:

 any money payable to Advance Dairy becomes overdue, or in Advance Dairy’s opinion the Customer will be unable to make a payment when it falls due;

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

a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

Cancellation

 Advance Dairy may cancel any contract to which these terms and conditions apply or cancel delivery of Goods/Equipment at any time before the Goods/Equipment are due to be delivered by giving written notice to the Customer. On giving such notice Advance Dairy shall repay to the Customer any money paid by the Customer for the Goods/Equipment. Advance Dairy shall not be liable for any loss or damage whatsoever arising from such cancellation.

In the event that the Customer cancels delivery of the Goods/Equipment the Customer shall be liable for any and all loss incurred (whether direct or indirect) by Advance Dairy as a direct result of the cancellation (including, but not limited to, any loss of profits).

Privacy Act 1993

 The Customer authorises Advance Dairy or Advance Dairy’s agent to:

 access, collect, retain and use any information about the Customer;

 (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer’s creditworthiness; or

for the purpose of marketing products and services to the Customer.

disclose information about the Customer, whether collected by Advance Dairy from the Customer directly or obtained by Advance Dairy 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.

Where the Customer is an individual the authorities under clause 17.1 are authorities or consents for the purposes of the Privacy Act 1993.

The Customer shall have the right to request Advance Dairy for a copy of the information about the Customer retained by Advance Dairy and the right to request Advance Dairy to correct any incorrect information about the Customer held by Advance Dairy.

Unpaid Seller’s Rights

 Where the Customer has left any item with Advance Dairy for repair, modification, exchange or for Advance Dairy to perform any other service in relation to the item and Advance Dairy has not received or been tendered the whole of any moneys owing to it by the Customer, Advance Dairy shall have, until all moneys owing to Advance Dairy are paid:

 a lien on the item; and

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.

The lien of Advance Dairy shall continue despite the commencement of proceedings, or judgment for any moneys owing to Advance Dairy having been obtained against the Customer.

Equipment Hire

 Equipment shall at all times remain the property of Advance Dairy and is returnable on demand by Advance Dairy. In the event that Equipment is not returned to Advance Dairy in the condition in which it was delivered Advance Dairy retains the right to charge the Customer the full cost of repairing the Equipment. In the event that Equipment is not returned at all Advance Dairy shall have right to charge the Customer the full cost of replacing the Equipment.

The Customer shall;

 keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to a lien over the Equipment.

not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment.

keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by Advance Dairy to the Customer.

The Customer accepts full responsibility for the safekeeping of the Equipment and the Customer agrees to insure, or self insure, Advance Dairy’s interest in the Equipment and agrees to indemnify Advance Dairy against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Further the Customer will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.

General

 The failure by Advance Dairy to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Advance Dairy’s 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.

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. 

Advance Dairy 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 Advance Dairy of these terms and conditions (alternatively Advance Dairy’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods/Equipment hire).

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 Advance Dairy nor to withhold payment of any invoice because part of that invoice is in dispute.

Advance Dairy may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.

The Customer agrees that Advance Dairy may amend these terms and conditions at any time. If Advance Dairy makes a change to these terms and conditions, then that change will take effect from the date on which Advance Dairy notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for Advance Dairy to provide Goods/Equipment to the Customer.

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.

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.

A copy of these terms are available on request

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