AHV NEW ZEALAND LIMITED – GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY
1.1 The following definitions are used in these conditions of sale and delivery:
(a) “Agreement”: any agreement entered into between the Buyer and AHV NZ, under which agreement AHV NZ has undertaken to deliver Products (as defined below).
(b) “AHV NZ”: AHV New Zealand Limited (New Zealand company number 8261156), the user of these conditions of sale and delivery, having its registered office in Auckland, New Zealand.
(c) “Buyer”: the natural person or legal entity, at least acting in the conduct of a profession or business with whom AHV has entered into an agreement or has the intention to do so.
(d) “PPSA“: Personal Property Securities Act 1999.
(e) “Products”: any goods, such as animal feed and animal health products, to be delivered by or on behalf of AHV NZ under the Agreement.
- GENERAL PROVISIONS
2.1 Any offer made by AHV NZ and any Agreement entered into shall be subject to these conditions of sale and delivery, which shall be incorporated by reference into the contract between AHV NZ and the Buyer.
2.2 These conditions of sale and delivery are also applicable to any Agreements in respect of which, for the execution thereof, third parties will be involved.
2.3 AHV NZ explicitly rejects the applicability of any purchase or other terms and conditions of the Buyer.
- OFFER AND FORMATION OF THE AGREEMENT
3.1 All quotations made by AHV NZ are without commitment. AHV NZ shall not be under an obligation to accept an order.
3.2 Evident errors or mistakes in a quotation made by AHV NZ shall not be binding upon it.
3.3 The Buyer cannot derive any rights from a quotation based on information provided by the Buyer that is incorrect or incomplete.
3.4 A quotation does not automatically apply to any subsequent quotations or orders. However, these conditions of sale and delivery shall apply to any subsequent quotations or orders.
3.5 The Agreement shall be concluded by means of offer and acceptance. The Buyer’s order shall constitute the offer and the acceptance of that offer shall only occur when AHV NZ confirms the order. If the Buyer’s offer is at variance with the quotation made by AHV NZ, the Agreement shall not be concluded in accordance with the contrary offer unless AHV NZ states otherwise. Orders placed via the AHV NZ website shall not be binding upon AHV NZ until AHV NZ has confirmed the order by electronic means.
3.6 A combined quote shall not oblige AHV NZ to perform part of the order at a corresponding part of the price quoted.
3.7 If the Buyer enters into the Agreement (also) on behalf of another natural person or legal entity, such Buyer states to have the authority to do so by entering into the Agreement. In addition to this natural person or legal entity, the Buyer shall be jointly and severally liable for meeting all obligations under the Agreement.
4.1 If for the performance of the Agreement AHV NZ is dependent on information to be provided by the Buyer, the term within which delivery shall take place shall not start until after AHV NZ has received such information.
4.2 The Buyer agrees not to exercise the rights to which they are entitled by operation of law until:
(a) the Buyer has sent AHV NZ written notice of default, stating a reasonable period within which AHV NZ is given the opportunity to perform the Agreement; and
(b) such time period expires and AHV NZ has not performed its obligations.
5.1 The parties may agree on a purchase order. The purchase order binds the Buyer, in accordance with the express agreements made to that end, to purchase Products several times in a certain period. If the Buyer fails to fulfil its purchase obligation or fails to fulfil it in time, all combination discounts, retroactively and prospectively, relating to the relevant purchase order shall be cancelled.
5.2 If delivery is made based on certain Incoterms, this is expressly stated in the Agreement.
5.3 Subject to what is agreed by the parties, Products shall be made available at the location of AHV NZ, any other location designated by AHV NZ or by means of delivery at the delivery address provided by the Buyer. If no delivery address is specified, orders shall be sent to the billing address.
5.4 Without prejudice to any Incoterms that may apply, the risk of loss of and damage to the Products shall pass to the Buyer at the moment the Buyer or a third party designated by the Buyer has taken delivery of the Products.
5.5 The Buyer shall take delivery of the Products purchased at the moment they are placed at the Buyer’s disposal or are delivered to them. If for any reason whatsoever the Buyer refuses to take delivery of the Products or fails to provide information or instructions required for the delivery, the Products shall be put into storage for the risk and account of the Buyer after the Buyer has been notified about this by AHV NZ. In such instances the Buyer shall pay to AHV NZ a reasonable price for the storage of the Products, in addition to the purchase price.
5.6 AHV NZ is allowed to deliver orders in parts. If orders are delivered in parts, AHV NZ is entitled to invoice each part separately.
- FORCE MAJEURE
6.1 AHV NZ shall not be required to fulfil any obligation under nor deemed to have defaulted under or breached an Agreement if it is hindered by a circumstance beyond its reasonable control or which cannot be attributed to it pursuant to the law, a legal act or in accordance with generally accepted principles (“force majeure”). Force majeure shall also be understood to mean the circumstance where the actions of AHV NZ’s suppliers prevent it from delivering the Products or from delivering them on time.
6.2 Throughout the period of force majeure, the obligations of AHV NZ arising from the Agreement shall be suspended.
6.3 If the force majeure has rendered the performance of the Agreement permanently impossible, or if the situation of force majeure persists or is likely to continue for more than three months, the parties shall be entitled to terminate the Agreement with immediate effect.
6.4 If upon the occurrence of the situation of force majeure AHV NZ has already met part of its obligations or can fulfil only part of its obligations under the Agreement, it is entitled to charge the Buyer separately for that part of the Agreement that has already been performed or can be performed as if it were a separate Agreement.
6.4 Any loss resulting from force majeure does not at any time qualify for compensation.
- SUSPENSION AND TERMINATION
7.1 AHV NZ shall be entitled to suspend the performance of the Agreement or to terminate the Agreement with immediate effect by way of written notice if:
(a) the Buyer fails to fulfil the obligations arising from the Agreement or from these conditions of sale and delivery on time or in full; or
(b) if following the conclusion of the Agreement circumstances have come to AHV NZ’s attention which give it reasonable grounds to believe that the Buyer will not meet its obligations,
and such termination is justified by the circumstances in the opinion of AHV NZ.
7.2 AHV NZ shall be entitled to terminate the Agreement with immediate effect if:
(a) the Buyer is declared bankrupt, insolvent or goes into liquidation;
(b) any attachment is levied on the Buyer’s goods; or
(c) the Buyer suffers, or is subject to, any equivalent event, circumstance or procedure to those set out above in paragraph (a) or (b),
unless in the opinion of AHV NZ the Buyer has provided sufficient security for payment. In addition, AHV NZ shall be entitled to terminate the Agreement if circumstances occur which are such that performance of the Agreement is rendered impossible or if AHV NZ cannot reasonably be required to maintain the Agreement in unchanged form.
7.3 The Buyer shall not at any time claim compensation, in whatever form, in connection with the right to suspend performance and the right to terminate exercised by AHV NZ pursuant to this clause.
7.4 In the event the Buyer is in default or breach of these conditions of sale and delivery, the Buyer shall compensate AHV NZ for loss that AHV NZ suffered as a consequence of the suspension or termination of the Agreement to the extent such loss can be attributed to the Buyer.
7.5 If AHV NZ terminates the Agreement pursuant to this clause, all amounts receivable from the Buyer shall be immediately due and payable.
- INSPECTION AND COMPLAINTS
8.1 The Buyer shall inspect the Products immediately upon delivery to ascertain whether their nature and quantity are in conformity with the Agreement and to verify the absence of damage. If the Buyer notices any shipping damages or missing Products, it must notify the carrier immediately or at least within three days after the delivery date. If according to the Buyer the nature and quantity are not in conformity with the Agreement, the Buyer must immediately notify AHV NZ at the time of delivery.
8.2 The Buyer shall notify AHV NZ of any hidden defects within seven days after discovering the defect or in all reasonableness should have discovered the defect.
8.3 The submission of complaints does not suspend the Buyer’s obligation to pay.
- PRICES AND PAYMENTS
9.1 If delivery has been agreed, the shipping and delivery costs shall be paid by the Buyer unless otherwise specified.
9.2 Unless otherwise specified, all prices and costs provided are exclusive of GST and any other charges imposed by the authorities.
9.3 If following the conclusion of the Agreement, but before the delivery of the Products the GST rates or other charges imposed by the authorities are changed, AHV NZ has the right to change the prices accordingly.
9.4 AHV NZ also has the right to pass on to the Buyer any increase in prices of cost-determining factors that occur after the conclusion of the Agreement, but before the delivery of the Products.
9.5 In the event of the winding up, bankruptcy, insolvency or suspension of payment of the Buyer or Buyer’s business, any outstanding amounts shall become due and payable with immediate effect.
9.6 Payment shall be made by transfer within the period specified in the invoice and in the manner prescribed by AHV NZ, unless expressly agreed otherwise.
9.7 If payment by direct debit is agreed, AHV NZ shall be entitled to charge reasonable administrative costs if the amount due cannot be collected automatically on several occasions. In that case the Buyer shall be required to make payment, including administrative costs, by transfer within the period specified on the invoice and in the manner prescribed by AHV NZ.
9.8 In the event of failure to pay, the Buyer shall be in default. From the date of the occurrence of the default, the Buyer shall be liable to pay interest of 1% per month (where such interest is paid upon the principal amount owing and previously accumulated interest). Part of a month counts as a full month in this context.
9.9 All reasonable costs incurred by AHV NZ to collect the amounts due under clause 10.9 are to be paid by the Buyer.
- CONSUMER LAW
10.1 To the maximum extent permitted by applicable law, the parties acknowledge and agree that for the purposes of section 5D of the Fair Trading Act 1986 and section 43 of the Consumer Guarantees Act 1993:
(a) sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 and the provisions of the Consumer Guarantees Act 1993 do not apply to these conditions of sale and delivery and any matters, information, representations or circumstances covered by these conditions of sale and delivery; and
(b) it is fair and reasonable that the parties are bound by this clause.
10.2 To the extent the Consumer Guarantees Act 1993 and the Fair Trading Act 1986 apply, if and to the extent that these conditions of sale and delivery conflict with any of the provisions of the Consumer Guarantees Act 1993 and Fair Trading Act 1986, these conditions of sale and delivery shall be modified to the extent necessary to give effect to those provisions.
11.1 Subject to clause 12.6, AHV NZ shall not be liable for any damage to the Products supplied or as a result of the use of these Products, save for negligence on the part of AHV NZ.
11.2 AHV NZ shall be entitled to repair any damage to the Products arising out of the fault of AHV NZ. The Buyer shall enable AHV NZ to make such repairs, following which all AHV NZ’s liability in respect of the damage shall cease.
11.3 AHV NZ shall in no event be liable for any consequential loss and/or damage, including lost profits, and loss and/or damages incurred as a result of business interruption. If, in spite of the provisions of these conditions of sale and delivery, AHV NZ is liable , only direct losses shall be compensated. The term ‘direct losses’ is understood to mean:
(a) the reasonable costs incurred to determine the cause and amount of the loss, to the extent such determination relates to direct loss eligible for compensation within the meaning of these conditions of sale and delivery;
(b) any reasonable costs incurred to ensure that AHV NZ, having failed to meet its obligations, complies with the Agreement, to the extent such failure can be attributed to AHV NZ;
(c) the reasonable costs incurred to prevent or limit any loss, to the extent the Buyer provides proof that the costs have resulted in a limitation of direct losses which are eligible for compensation within the meaning of these conditions of sale and delivery.
11.4 If in the circumstances any further liability should arise on the part of AHV NZ, such liability shall be limited to the invoice value of the Agreement or in any event to that part of the Agreement to which the liability relates.
11.5 Nothing in these conditions of sale and delivery or an Agreement shall operate to limit or exclude either the Buyer’s or AHV NZ’s liability for any of the following:
(a) death or personal injury caused by the relevant party’s negligence or the negligence of its personnel;
(b) fraud or fraudulent misrepresentation; and
(c) any other liability that cannot be excluded or limited by law applicable to an Agreement or these conditions of sale and delivery.
11.6 Without prejudice to the other provisions of these conditions of sale and delivery, the limitation period for all claims and remedies against AHV NZ shall be one (1) year from the date of shipment of the applicable Product.
11.7 Except in the case of intent or gross negligence on the part of AHV NZ, the Buyer shall indemnify AHV NZ against any claims made by third parties for whatever reason for damages, costs, expenses or interest arising out of or resulting from the use of the Products supplied by AHV NZ.
- PERSONAL PROPERTY SECURITIES ACT
12.1 AHV NZ shall retain the title to all Products supplied by it until such time as the Buyer has complied fully with his obligations arising from the Agreement.
(a) these conditions for sale and delivery constitute a security agreement for the purposes of the PPSA; and
(b) AHZ NZ holds a security interest in the Products as security for payment, for any other amounts owing by the Buyer to the AHV NZ, and for the performance by the Buyer of all the Buyer’s obligations.
12.3 The Buyer consents to AHV NZ effecting a registration, at its discretion, of a financing statement or financing change statement on the personal properties security register established under the PPSA in relation to any security interest arising under or in connection with or contemplated by these conditions of sale and delivery.
12.4 The Buyer agrees not to disclose any information of the kind contemplated by section 177 of the PPSA.
12.5 The Buyer waives its right to receive notice of a verification statement in relation to any registration by AHV NZ on the PPSA register.
12.6 The Buyer agrees to promptly execute any documents, provide all relevant information, fully cooperate with AHV NZ and do any other act or thing that AHV NZ requires to ensure that AHV NZ has a perfected security interest in, and has priority over any other security interests in the Good supplied or otherwise.
12.7 To the extent permitted by law, the Buyer and AHV NZ agree that:
(a) for the purposes of sections 107 of the PPSA, AHV NZ need not comply with sections 116, 120(2), 121, 125, 126, 127, 129 or 131 of the PPSA; and
(b) the parties agree that nothing in sections 114(1)(a) (which relates to a debtor’s right to receive notice of sale of collateral by a secured party, and 133 and 134 (which relate to a debtor’s rights to reinstate a security interest after default) of the PPSA shall apply to these conditions for sale and delivery, or the security under these conditions for sale and delivery.
12.8 In this clause, terms used which are defined in the PPSA have the meaning given to those terms in the PPSA.
12.9 The Supplier consents to the Buyer selling or otherwise disposing of the Products in the ordinary course of the Buyer’s business before title has passed, and confirms that clear title may pass to the buyer in those circumstances (and the Supplier’s security in those Products (but not their proceeds) is automatically released on the passing of title).
- PERSONAL DATA
- GOVERNING LAW
14.1 Each Agreement, these conditions of sale and delivery, and any resulting legal relationships between the Buyer and AHV NZ and any dispute or claim arising out of or in connection with an Agreement and these conditions of sale and delivery or their subject matter or formation (including non-contractual disputes or claims) shall be exclusively governed by and construed in accordance with New Zealand law.
14.2 Any dispute arising out of or in relation to these conditions of sale and delivery (including any non-contractual disputes or claims) shall be settled exclusively by the Courts of New Zealand.
- ENTIRE AGREEMENT
15.1 These conditions of sale and delivery (and any documents referenced in or forming part of these conditions for sale and delivery) contain the entire agreement between the Buyer and AHV NZ and supersede all prior agreements, arrangements and understandings between the Buyer and AHV NZ, whether oral or written, relating to that subject matter.
- CONFIDENTIAL INFORMATION
16.1 All non-public, confidential or proprietary information of AHV NZ, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by AHV NZ to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement, remains the property of AHV NZ and may not be disclosed or copied unless authorized in advance by AHV NZ in writing.
17.1 If any provision of an Agreement or these conditions of sale and delivery is held to be unlawful, invalid or unenforceable (in whole or in part) by any law or by the final determination of any court of competent jurisdiction, that provision is deemed to be severed and such invalidity or unenforceability shall not affect the other parts of that provision or the other provisions of an Agreement or these conditions of sale and delivery which shall remain in full force and effect.
- AMENDMENT AND ASSIGNMENT
18.1 AHV NZ may revise these conditions of sale and delivery at any time and will give the Buyer reasonable notice of those changes to these conditions of sale and delivery. By continuing to place orders the Buyer acknowledges and agrees to those changes to these conditions of sale and delivery.
18.2 Buyer is deemed to accept these conditions for sale and delivery, 5 days from the date these terms are shared or the date of delivery of the Products whichever is earlier unless written confirmation of rejection of the terms is received.
18.3 Buyer may not assign any of his rights or obligations pursuant to an Agreement or these conditions of sale and delivery without AHV’s NZ’s prior consent.
Version December 2022