1.1 “Bioforce” shall mean Bioforce Limited, or any agents or employees thereof.
1.2 “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 Bioforce.
1.3 “Goods” shall mean:
1.3.1 all Goods of the general description specified on the front of this agreement and supplied by Bioforceto the Customer; and
1.3.2 all Goods supplied by Bioforceto the Customer; and
1.3.3 all inventory of the Customerthat is supplied by Bioforce; and
1.3.4 all Goods supplied by Bioforceand further identified in any invoice issued by Bioforceto the Customer, which invoices are deemed to be incorporated into and form part of this agreement; and
1.3.5 all Goods that are marked as having been supplied by Bioforce or that are stored by the Customer in a manner that enables them to be identified as having been supplied by Bioforce; and
1.3.6 all of the Customer’s present and after-acquired Goods that Bioforce has performed work on or to or in which goods or materials supplied or financed by Bioforce have been attached or incorporated.
1.3.7 The above descriptions may overlap but each is independent of and does not limit the others.
1.4 “Goods and Services” shall mean all goods, products, services and advice provided by Bioforce to the Customer and shall include without limitation the design, manufacture, testing, installation, repair and supply of horticultural, environmental, irrigation, control and test equipment including industrial water treatment systems and the supply of parts, components and advice and all charges for labour, hire charges, insurance charges, or any fee or charge associated with the supply of Goods and Services by Bioforce to the Customer.
1.5 “Price” shall mean the cost of the Goods and Services as agreed between Bioforce and the Customer and includes all disbursements eg charges Bioforce pay to others on the Customer's behalf subject to clause 4 of this contract.
2.1 Any instructions received by Bioforce from the Customerfor the supply of Goods and Servicesshall constitute a binding contract and acceptance of the terms and conditions contained herein.
3. COLLECTION AND USE OF INFORMATION
3.1 The Customer authorises Bioforce 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 and Services provided by Bioforce to any other party.
3.2 The Customer authorises Bioforce 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.
4.1 Where no price is stated in writing or agreed to orally the Goods and Services shall be deemed to be sold at the current amount as such Goods and Services are sold by Bioforce at the time of the contract.
4.2 The price may be increased by the amount of any reasonable increase in the cost of supply of the Goods and Services that is beyond the control of Bioforce between the date of the contract and delivery of the Goods and Services.
5.1 Unless otherwise agreed payment for Goods and Services shall be made in full on or before the 20th day of the month following the date of the invoice (“the due date”).
5.2 Interest may be charged on any amount owing after the due date at the rate of 2.5% per month or part month.
5.3 Any expenses, disbursements and legal costs incurred by Bioforcein the enforcement of any rights contained in this contract shall be paid by the Customer, including any reasonable solicitor’s fees or debt collection agency fees.
5.4 Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
5.5 A deposit may be required.
6.1 Where a quotation is given by Bioforce for Goods and Services:
6.1.1 Unless otherwise agreed the quotation shall be valid for thirty (30) days from the date of issue; and
6.1.2 The quotation shall be exclusive of goods and services tax unless specifically stated to the contrary;
6.1.3 Bioforce reserve the right to alter the quotation because of circumstances beyond its control.
6.2 Where Goods and Services are required in addition to the quotation the Customer agrees to pay for the additional cost of such Goods and Services.
7.1 Perishable Products - Perishable products (such as all live organisms) will only be sent on Mondays, Tuesdays and Wednesdays, and will not be sent on public holidays. Orders placed after 1pm on Wednesday will likely be sent the following week. We will aim to dispatch the products within 5 working days of placing your order. If we cannot deliver these products within 7 working days of your order, we will notify you and you will be entitled to cancel your order and a refund will be made to you. In no event shall we be liable to pay for any damages or penalty for any delay in delivery of the products however caused.
8.1 The Goods and Services remain at Bioforce’s risk until delivery to the Customer.
8.2 Delivery of Goods and Services shall be deemed complete when Bioforce gives possession of the Goods and Services directly to the Customer or possession of the Goods and Services is given to a carrier, courier, or other bailee for purposes of transmission to the Customer.
9. SECONDARY CONSTULTANTS AND AGENCY
9.1 The Customer authorises Bioforce to contract either as principal or agent for the provision of Goods and Services that are the matter of this contract.
9.2 Where Bioforce enters into a contract of the type referred to in clause 8.1 it shall be read with and form part of this agreement and the Customer agrees to pay any amounts due under that contract.
10. TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999)
10.1 Title in any Goods and Services supplied by Bioforce passes to the Customer only when the Customer has made payment in full for all Goods and Services provided by Bioforce and of all other sums due to Bioforce by the Customer on any account whatsoever. Until all sums due to Bioforce by the Customer have been paid in full, Bioforce has a security interest in all Goods and Services.
10.2 If the Goods and Services are attached, fixed, or incorporated into any property of the Customer, by way of any manufacturing or assembly process by the Customer or any third party, title in the Goods and Services shall remain with Bioforce until the Customer has made payment for all Goods and Services, and where those Goods and Services are mixed with other property so as to be part of or a constituent of any new Goods and Services, title to these new Goods and Services shall deemed to be assigned to Bioforce as security for the full satisfaction by the Customer of the full amount owing between Bioforce and Customer.
10.3 The Customer gives irrevocable authority to Bioforce to enter any premises occupied by the Customer or on which Goods and Services are situated at any reasonable time after default by the Customer or before default if Bioforce believes a default is likely and to remove and repossess any Goods and Services and any other property to which Goods and Services are attached or in which Goods and Services are incorporated. Bioforce 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. Bioforce may either resell any repossessed Goods and Services 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 Services and credit the Customer’s account with the invoice value thereof less such sum as Bioforce reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.
10.4 Where Goods and Services are retained by Bioforce pursuant to clause 9.3 the Customer waives the right to receive notice under s.120 of the Personal Property Securities Act 1999 (“PPSA”) and to object under s.121 of the PPSA.
10.5 The following shall constitute defaults by the Customer:
10.5.1 Non payment of any sum by the due date.
10.5.2 The Customer intimates that it will not pay any sum by the due date.
10.5.3 Any Goods and Services are seized by any other creditor of the Customeror any other creditor intimates that it intends to seize Goods and Services.
10.5.4 Any Goods and Services in the possession of the Customer are materially damaged while any sum due from the Customer to Bioforce remains unpaid.
10.5.5 The Customer is bankrupted or put into liquidation or a receiver is appointed to any of the Customer’s assets or a landlord distrains against any of the Customer’s assets.
10.5.6 A Court judgment is entered against the Customer and remains unsatisfied for seven (7) days.
10.5.7 Any material adverse change in the financial position of the Customer.
11. SECURITY INTEREST FOR SERVICE PROVIDERS
11.1 The Customer gives Bioforce a security interest in all of the Customer’s present and after-acquired property that Bioforce has performed services on or to or in which goods or materials supplied or financed by Bioforce have been attached or incorporated.
12. PAYMENT ALLOCATION
12.1 Bioforce may in its discretion allocate any payment received from the Customer towards any invoice that Bioforce 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. In the absence of any payment allocation by Bioforce, payment shall be deemed to be allocated in such manner as preserves the maximum value of Bioforce’s purchase money security interest in the Goods and Services.
13. GENERAL LIEN
13.1 The Customer agrees that Bioforce may exercise a general lien against any Goods and Services or property belonging to the Customer that is in the possession of Bioforce for all sums outstanding under this contract and any other contract to which the Customer and Bioforce are parties.
13.2 If the lien is not satisfied within seven (7) days of the due date Bioforce may, having given notice of the lien at its option either:
13.2.1 Remove such Goods and Services and store them in such a place and in such a manner as Bioforce shall think fit and proper and at the risk and expense of the Customer; or
13.2.2 Sell such Goods and Services or part thereof upon such terms as it shall think fit and apply the proceeds in or towards discharge of the lien and costs of sale without being liable to any person for damage caused.
14. DISPUTES, REFUNDS AND RETURN OF GOODS
14.1 No claim relating to the Goods and Services will be considered unless made within seventy two (72) hours of delivery.
14.2 Due to the highly perishable nature of the products, no refunds or returns will be made on any items or delivery costs once dispatched. The customer must exercise caution when buying products.
15.1 The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon Bioforce which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on Bioforce, Bioforce’s liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.
15.2 Except as otherwise provided by clause 14.1 Bioforce shall not be liable for:
15.2.1 Any loss or damage of any kind whatsoever, arising from the supply of Goods and Services by Bioforce to the Customer, including consequential loss 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 and Services provided by Bioforce to the Customer; and
15.2.2 The Customer shall indemnify Bioforce against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of Bioforce or otherwise, brought by any person in connection with any matter, act, omission, or error by Bioforce its agents or employees in connection with the Goods and Services.
16.1 Manufacturer’s warranty applies where applicable.
17. COPYRIGHT AND INTELLECTUAL PROPERTY
17.1 Bioforce, owns and has copyright in all designs, documents, specifications, plans, software and data material produced by Bioforce in connection with the Goods and Services provided pursuant to this contract and the client may use the Goods and Services only if paid for in full and for the purpose for which they were intended and supplied by Bioforce.
18. CONSUMER GUARANTEES ACT
18.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Goods and Services from Bioforce for the purposes of a business in terms of section 2 and 43 of that Act.
19. PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES
19.1 If the Customer is a company or trust, the director(s) or trustee(s) signing this contract, in consideration for Bioforce agreeing to supply Goods and Services and grant credit to the Customer at their request, also sign this contract in their personal capacity and jointly and severally personally undertake as principal debtors to Bioforce the payment of any and all monies now or hereafter owed by the Customer to Bioforce and indemnify Bioforce against non-payment by the Customer. Any personal liability of a signatory hereto 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 the terms and conditions of this contract and for payment of all sums due hereunder.
20.1 Bioforce shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control including terrorism.
20.2 Failure by Bioforce to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations Bioforce has under this contract.
20.3 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.