Terms of Trade
Terms of Trade – MACDOUGALLS AGRI SERVICES LIMITED – the COMPANY
- This agreement binds the Customer whether or not the goods have been supplied and/or services provided before or after the date of this agreement.
- Unless details of payment for goods and/or services are specified on the Order Form completed by the Customer then the Customer will pay the Company’s account in full by the 20th day of the month following the date of invoice (‘the due date”). If payment details are specified on the Order Form completed by the Customer then the Customer will pay the Company’s account in respect of goods and/or services provided that are covered by the Order Form in compliance with the Order Form.
- If payment in full is not made to the Company by the due date:
- The Customer (and the guarantor) are liable to pay penalty interest on the money owing at the rate of 3% per month; and
- The Customer (and the guarantor) are also liable to pay all the expenses and legal costs (on a solicitor/client basis and/or Debt Collector’s fees) incurred by the Company as a result of the Customer’s default; and
- The Customer grants an irrevocable license to the Company to enter any premises occupied by the Customer to recover possession of the Company’s goods.
- The company remains the owner of all goods supplied by the Company to the Customer prior to or subsequent to this agreement, until payment is made in full to the Company.
- Risk in the goods passes to the Customer on delivery to the Customer or the Customers agent and the Customer shall keep the goods comprehensively insured from that point.
- The Company may issue proceedings to recover the price of the goods sold notwithstanding that title may not have passed to the Customer.
2. Warranty and Consumer Guarantees Act 1993
To the extent that the Customer is contracting for the purposes of a trade/business the Consumer Guarantees Act 1993 does not apply.
Equipment of the Company’s own design and manufacture is warranted free of defective workmanship and/or materials for a period of twelve months from the date of installation. Such warranties do not cover depreciation due to normal wear and tear, or faults due to misuse or failure to maintain, accidental breakage, alteration, or act of God.
All warranties and title expressed or implied are conditional on payments for equipment being completed as agreed.
The warranty provided by the Company, extends only to repair or replacement of defective equipment and materials. Under no circumstances whatsoever is the Company liable for any loss, damage, wastage, damage to other goods, loss of profits or other consequential loss occasioned through stoppage or failure of or any defect in any machinery or equipment whatsoever. In addition, the warranty does not cover any travel or freight costs and these are payable by the Customer.
The warranty does not cover damage, malfunction or non operation, or the cost of travel caused by the actions of untrained operators and/or new staff.
The warranty provided by the Company extends only to the Customer.
For goods not manufactured by the Company the Company shall be under no liability whatsoever. The Company will, where possible and practicable, assign the benefit of any warranties received by the Company to the Customer for goods installed, but not manufactured by the Company. All costs incurred by the Company, including but not limited to inspection costs (whether or not a fault is discovered), travel costs, installation costs and labour are payable by the Customer.
Notwithstanding anything in clauses 2(b) to (g) above the Company shall have no liability whatsoever for any malfunction, loss, damage, cost or expense caused to equipment supplied by the Company by anyone other than the Company installing, repairing, maintaining or servicing that equipment.
The Customer noting the requirements under the Privacy Act 1993 authorises and directs that the Company can, in addition to the matters set out in the Trading Account Application, seek and obtain from and supply any information concerning the credit or business standing of the Customer to any other person whether trader, merchant, firm, organisation, company or any agency or source whatever including any credit agency or association or the like and directs any such person to supply and receive and record such information to and from The Company.
4. Personal Property Securities Act 1999
- The Customer grants a security interest (as that terms is defined in the Act) to the Company over all goods presently or in the future supplied to the Customer by the Company including the proceeds of sale of all goods supplied until the purchase price of each good and all amounts owing to the Company are paid in full.
- On the request of the Company the Customer shall promptly execute any documents and do anything else required by the Company to ensure the security interest created under these conditions constitutes a perfect security interest (as that term is defined in the Act) over the goods supplied to the Customer by the Company, including:
- Executing any amendment to these conditions as reasonable required by the Company;
- Executing any replacement or additional security document(s); and
- Providing any information to The Company to enable it to complete a Financing Statement or a Financing Change Statement.
- The Customer shall not agree to allow any person to file a Financing Statement over any of the goods supplied pursuant to these conditions without the prior written consent of the Company and the Customer shall notify the Company immediately if it becomes aware of any person taking any step to file a Financing Statement against any goods which are supplied pursuant to these conditions.
- The Customer irrevocably appoint the Company to be the Customer’s attorney to do anything which you agree to do under this agreement and anything which the attorney thinks desirable to protect the Company’s interest under this agreement and you ratify anything done by the attorney under this clause.
- The Customer waives the right to receive a copy of the verification statement confirming registration of a Financing Statement or a Financing Change Statement to the security inertest created by this agreement.
- The Customer agrees sections 114(1)(a), 133 and 134 of the Act shall not apply to this agreement or the security under this agreement.
- The Customer agrees that none of the Customers rights as a debtor under section 11, 119, 120(2), 121, 125, 126, 127, 129, 131, and 132 shall apply to this agreement.
5. Non Waiver
If the Company fails to enforce any terms or to exercise its rights under these terms of trade at any time, The Company has not waived those rights.
If any provision of these terms of trade is held to be invalid or unenforceable for any reason, the remaining provisions shall remain in full force and effect and the parties shall adjust their respective rights and obligations in accordance with the spirit and intent of the parties as shown by these terms of trade.
7. Personal Guarantee
If the Customer is a Company, the director(s) signing the attached Credit Application also signs in his/her personal capacity in consideration of the Company agreeing to supply Goods and Services and grant credit to the Customer at his/her request, and personally undertakes (and if more than one director signs this contract then the directors jointly and severally) as principal debtor(s) to the Company the payment of any and all monies now or hereafter owed by the Customer to the Company and indemnify the Company against non-payment by the Customer. Personal liability of a signatory hereto shall not exclude the Customer in any way whatsoever from the liabilities and obligations contained in the attached Credit Application and these Terms of Trade.
The Guarantor(s) acknowledge(s) that either they took independent legal advice before signing or if independent legal advice has not been taken confirm that they have signed this guarantee based on their own judgement and waive any right that they might have otherwise have arising out of failure to obtain such advice.