General Sales Terms

(VP MAXX BRAND SEEDS)

1.                  Definitions

1.1                Customer shall mean the customer, any person acting on behalf of and with the authority of the Customer, or any person purchasing products and services from NZSH.

1.2                Goods shall mean:

       (a)         all Goods supplied by NZSH to the Customer; and

       (b)         all Goods, products, services and advice provided by NZSH to the Customer.

1.3                NZSH shall mean NZ Seed Houses Limited, or any agents or employees thereof.

1.4                Price shall mean the cost of the Goods to the Customer and includes all disbursements, for example, charges NZSH may pay to others on the Customer’s behalf subject to clause 4 of this contract.

2.                  Application

2.1                Any instructions, request for a quotation, or order received by NZSH from the Customer for the supply of Goods shall constitute a binding contract and acceptance by the Customer of these terms and conditions. Subject to clause 2.2, these terms and conditions take priority over any other terms if there is any conflict. NZSH is not deemed to have accepted any other terms by its conduct.

2.2                If there is conflict between NZSH documents, the following apply in order of preference:

       (a)         any specific amendment to these terms and conditions signed by NZSH and the Customer;

       (b)         NZSH’s wholesale price list prevailing from time to time; and

       (c)         these standard terms and conditions.

2.3                NZSH may amend these terms and conditions from time to time. The current version is available on NZSH’s VPMAXX website (www.vpmaxx.co.nz/terms-conditions). The Customer will be bound by any amendment from the time it is published on NZSH’s website.

3.                  Collection and use of information

3.1                The Customer authorises NZSH to collect, retain and use any information about the Customer, for the purpose of assessing the Customer’s credit worthiness, enforcing any rights under this contract, or marketing any Goods provided by NZSH to any other party.

3.2                The Customer authorises NZSH to disclose any information obtained to any person for the purposes set out in clause 3.1.

3.3                Where the Customer is a natural person the authorities under clauses 3.1 and 3.2 are authorities or consents for the purposes of the Privacy Act 1993.

4.                  Price

4.1                The price for the Goods (whether at the time of any order or at the time that a quotation is given) is based upon NZSH’s rates and costs as at the date that the Customer’s order is received by NZSH, or the quotation is provided, as applicable. Prices given are exclusive of GST unless otherwise specified in writing.

4.2                The price of Goods (in an order or a quotation) may be increased by NZSH by the amount of any increase in the cost of supply of the Goods that is beyond the control of NZSH between the date of the contract (as contained in any order or quotation) and delivery of the Goods. Such costs include any movement in exchange rates increasing the cost of the Goods to NZSH.

5.                  Variations

5.1                The Customer may vary the order at any time prior to delivery by giving reasonable notice in writing to NZSH. If the Customer varies the order following receipt of the order by NZSH, the Customer may be liable to pay reasonable additional costs, such costs to be determined by NZSH.

6.                  Payment

6.1                Payment for Goods shall be made in full (without deduction or set-off) on or before the 20^th day of the month following the date of delivery of the Goods (“Due Date”).

6.2                The Customer shall pay any part of an invoice that is undisputed by the Due Date pending resolution of the disputed part of an invoice.

6.3                Interest may be charged on any amount owing after the Due Date at the rate of 8% per annum above NZSH’s base bank overdraft lending rate calculated on a daily basis on all monies outstanding under the contract from the date that payment is due until the date that payment is received in full by NZSH.

6.4                Any expenses, disbursements and legal costs incurred by NZSH in the enforcement of any rights contained in, or recovery of any sums owing under, this contract shall be paid by the Customer, including but not limited to legal fees (on a solicitor-client basis) and debt collection agency fees.

6.5                If NZSH at any time deems the credit of the Customer to be unsatisfactory, it may require security for payment and may suspend performance of its obligations under the contract until the provision of sufficient security. All costs and expenses of, or incurred by, NZSH as a result of such suspension and any recommencement shall be payable by the Customer upon demand.

6.6                NZSH may in its discretion allocate any payment received from the Customer towards any invoice that NZSH determines and may do so at the time of receipt or at any time afterwards and on default by the Customer may reallocate any payments previously received and allocated.

6.7                Where NZSH at its sole discretion allows the Customer to return Goods other than defective Goods, NZSH reserves the right to charge a return fee of such amount as NZSH determines appropriate in the circumstances.

7.                  Delivery

7.1                Delivery shall be made at the place indicated in the contract or if no place is indicated (and in the case of sales ex-works) delivery shall be made at NZSH’s premises. If the Customer fails, refuses or indicates that it will refuse or fail to take or accept delivery, then the Goods shall be deemed to have been delivered when NZSH is willing to deliver them, and NZSH shall be entitled to charge the Customer for any storage and/or transportation charges incurred by NZSH.

7.2                NZSH reserves the right to deliver the Goods by instalment and each instalment shall be deemed to be a separate contract under the same provisions as the main contract. If NZSH fails to deliver one or more instalments, this shall not entitle the Customer to repudiate the contract.

7.3                Delivery of ten (10) percent more or less in the quantity of the Goods ordered by the Customer shall constitute performance of the contract, the amount under or over supplied to be deducted or charged for pro rata.

7.4                The time agreed for delivery shall not be an essential term of this contract unless the Customer gives written notice to NZSH making time of the essence. Any time stated for delivery is an estimate only. NZSH is not liable for any delay in delivery.

8.                  Risk

8.1                The Goods remain at NZSH’s risk until delivery to the Customer. Risk of any loss, damage or deterioration of or to the Goods shall be borne by the Customer from the date of delivery.

8.2                Until property in the Goods passes to the Customer, the Customer shall keep the Goods insured in the names of NZSH and the Customer for their respective rights and interests and will produce to NZSH upon demand such evidence as NZSH may require to confirm the existence of such insurance. If the Customer defaults in the performance of its obligations under this clause, NZSH shall be entitled to insure the Goods and the cost of effecting such insurance shall be payable by the Customer to NZSH upon demand.

8.3                If any of the Goods are damaged or destroyed prior to the property in such Goods passing to the Customer, NZSH shall be entitled, without prejudice to any of its other rights or remedies under the contract to receive all insurance proceeds which are payable in respect thereof (whether or not the purchase price of such Goods has become payable under the contract) and the production of this contract by NZSH shall be sufficient evidence of NZSH’s right to receive payment of such insurance proceeds without the need for further enquiry by any person dealing with NZSH. Any such insurance proceeds shall be applied by NZSH in the following order of preference:

       (a)         payment of the purchase price of the Goods which are damaged or destroyed, if unpaid;

       (b)         payment of the outstanding purchase price of any other goods supplied to the Customer by NZSH, whether under the contract or otherwise;

       (c)         payment of any other sums payable to NZSH by the Customer whether under this contract or otherwise; and

       (d)         the balance (if any) shall be paid to the Customer.

9.                  Title and Security (Personal Property Securities Act 1999) (the “Act”)

9.1                Title in any Goods supplied by NZSH passes to the Customer only when the Customer has made payment in full for all Goods provided by NZSH and of all other sums due to NZSH by the Customer on any account whatsoever. Until all sums due to NZSH by the Customer have been paid in full, NZSH retains a security interest in all Goods supplied, and the Customer grants to NZSH a purchase money security interest in such Goods and the proceeds from sale of such Goods, which shall be registerable on the Personal Property Securities Register. The Customer agrees to do all things necessary, and execute all further required documentation (if any), for the effective grant of the purchase money security interest in favour of NZSH. The Customer waives its rights under section 148 of the Act to receive a copy of the verification statement, and waives all of its rights referred to in section 107(2) of the Act. NZSH and the Customer agree that section 114(1)(a) of the Act does not apply.

9.2                If the Goods are attached, fixed, or incorporated into any property of the Customer, or where seed is supplied, such seed is planted and crops produced, title in the Goods (including crops) and NZSH’s security interest shall continue in such Goods until the Customer has made payment for all Goods supplied. In respect of any crops produced from Goods supplied, the Customer shall ensure that it has the consent of all parties with a relevant interest in the land upon which the crops are growing, or after harvest, where they are stored, to the purchase money security interest granted in favour of NZSH.

9.3                The Customer shall store the Goods in such a manner that they can be easily identified as belonging to NZSH. The Customer gives irrevocable authority to NZSH to enter any premises occupied by the Customer or on which Goods are situated at any reasonable time after default by the Customer or before default if NZSH believes a default is likely and to remove and repossess any Goods and any other property to which Goods are attached or in which Goods are incorporated or where the crops are growing and/or stored (as applicable). NZSH shall not be liable for any costs, damages, expenses or losses incurred by the Customer or any third party as a result of this action, nor liable in contract or in tort or otherwise in any way whatsoever unless by statute such liability cannot be excluded. NZSH may either resell any repossessed Goods and credit the Customer’s account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs) or may retain any repossessed Goods and credit the Customer’s account with the invoice value thereof less such sum as NZSH reasonably determines on account of wear and tear, deterioration, damage, depreciation, obsolescence, loss of profit and costs.

9.4                Until ownership and title to any Goods delivered by NZSH passes to the Customer, the Goods supplied are held by the Customer as agent for and on behalf of NZSH, and if any of the Goods supplied are sold or otherwise disposed of by the Customer, the Customer shall hold the proceeds of such sale or disposition on trust for NZSH and shall be accountable to NZSH for such proceeds.

9.5                The following shall constitute defaults by the Customer:

       (a)         non payment of any sum by the due date;

       (b)         the Customer intimates that it will not pay any sum by the due date;

       (c)         any Goods are seized by any other creditor of the Customer or any other creditor intimates that it intends to seize Goods;

       (d)         any Goods in the possession of the Customer are materially damaged while any sum due from the Customer to NZSH remains unpaid;

       (e)         the Customer is adjudged bankrupt or placed in voluntary administration or liquidation or a receiver is appointed over any of the Customer’s assets;

       (f)          a Court judgment is entered against the Customer and remains unsatisfied for seven (7) days; or

       (g)         any material adverse change in the financial position of the Customer.

10.              Further Security

10.1            In consideration for NZSH agreeing to supply the Goods and grant credit to the Customer, the Customer agrees to grant to NZSH a mortgage over any land in which the Customer has an interest that can be mortgaged.

11.              Liability

11.1            NZSH warrants that the Goods conform to the description on the corresponding label of the Goods (if applicable) within tolerances, if any, established by law. This express warranty excludes and is in lieu of all other warranties, express or implied, including any warranty of merchantability and of fitness for a particular purpose of which NZSH expressly disclaims.

11.2            Specifications contained or referred to in the contract or in any catalogues or other publications or literature issued by NZSH are estimates only. It is not a term or condition of the contract that the Goods will correspond precisely with any specifications, and reasonable tolerances will be allowed.

11.3            Without limiting any other provision of this contract, NZSH shall not be liable for any loss or damage of any kind whatsoever, arising from the supply of Goods by NZSH to the Customer, including exemplary, consequential or incidental damages, whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise, and irrespective of whether such loss or damage arises directly or indirectly from Goods provided by NZSH to the Customer or from a breach of warranty or otherwise. Under no circumstances shall NZSH be liable to the Customer or any other person for loss or damage of any kind whatsoever suffered where such loss or damage is attributable to the acts or omissions of another person or has been caused by or contributed to by another person. In the event that NZSH is liable for any loss suffered by a Customer or third party, its liability shall be limited to the amount of the purchase price of the Goods in question or, at the election of NZSH, replacement of the Goods in question, and the Customer acknowledges that this shall be the exclusive and sole remedy of the Customer and any third party for any such loss.

11.4            Prompt notice by the Customer or any other person must be given of any claim in order that an immediate inspection of the field(s), seed or grain produced therefrom may be made. Failure to give prompt notice shall bar the Customer or any other person of any legal remedy. Any action against NZSH for breach of these standard terms and conditions, including any warranties arising from it, must be commenced within six months after the cause of action accrues or be barred after such time.

11.5            The Customer shall indemnify NZSH against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing clause whether caused or arising as a result of the negligence of NZSH or otherwise, brought by any person in connection with any matter, act, omission, or error by NZSH, its agents or employees in connection with the Goods.

11.6            The Customer acknowledges that it is purchasing the Goods for a business purpose, and the provisions of the Consumer Guarantees Act 1993 shall not apply.

11.7            The Customer acknowledges that the limitations and disclaimers in this clause 11 constitute the entire agreement between NZSH and the Customer regarding warranty or other liabilities in respect of the Goods and the associated remedies and that such agreement cannot be modified by any oral or other written agreement.

12.              Personal Guarantee of Company Directors or Trustees

12.1            If the Customer is a company or trust, the director(s) or trustee(s) signing this contract (“Guarantors”), in consideration for NZSH agreeing to supply Goods and grant credit to the Customer at their request, also sign this contract in their personal capacity and jointly and severally personally undertaken as principal debtors to NZSH the payment of any and all monies owing from time to time by the Customer to NZSH, indemnify NZSH against non-payment by the Customer, and agree to grant to NZSH a mortgage over any land in which any Guarantor has an interest that can be mortgaged. Any personal liability of a signatory to this contract shall not exclude the Customer in any way whatsoever from the liabilities and obligations contained in this contract. The signatories and Customer shall be jointly and severally liable under these terms and conditions and for payment of all sums due hereunder.

13.              Parental lines

13.1            Notwithstanding anything contained in this contract:

       (a)       the Customer and NZSH acknowledge and agree that:

          (i)     any parental line used in producing any hybrid seed which is the subject of this contract may be licensed to NZSH and may be protected by law and is or may constitute a trade secret that is proprietary to another; and

          (ii)    the Customer intends to purchase and NZSH intends to sell only hybrid seed; and

       (b)       the Customer agrees that the purchase of any seed from NZSH does not give the Customer any right to use any such parental line which may be found therein, or any plant, pollen, or seed produced from such parental line seed for breeding, research or seed production purposes or for any purpose other than the production of forage or grain for feeding or processing.

13.2            The Customer acknowledges that where seed is sold by NZSH it is for crop production purposes only, and neither the Customer nor any party to which it on-sells the seed may use any of the seed for breeding or research purposes of any kind. The Customer is responsible for ensuring that its third party customers are aware of these limited rights of use.

14.              Miscellaneous

14.1            NZSH shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its reasonable control.

14.2            Failure by NZSH to enforce any of these terms and conditions shall not be deemed to be a waiver of any of the rights or obligations NZSH has under this contract.

14.3            If any provision of this contract shall be invalid, void or illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

14.4            The Customer may not assign all or any of its rights or obligations under this contract without the prior written consent of NZSH.

14.5            This contract shall be governed by New Zealand law and shall be subject to the non-exclusive jurisdiction of the New Zealand courts.