FlynnHoldings Ltd t/a Soil Matters

These terms and conditions("Terms of Supply") apply to the provision of goods and services fromFlynn Holdings Limited t/a Viafos, including the provision of credit facilities.  In these Terms of Supply "we"or "us" means FLYNN HOLDINGS LIMITED t/a Soil Matters, “you” means the customer to whom the goods or services are provided (and any guarantor if applicable), and “our” and “your” have corresponding meanings.  "Goods" means any goods that you have ordered or purchased from us from time to time.

Terms and Acceptance of Orders

We will supply goods and services to you on the Terms of Supply unless mutually agreed otherwise (in writing).  We may amend these Terms of Supply from time to time by notice to you in writing.  We are under no obligation to accept all or any of your orders.

Terms and Acceptance of Orders

We will invoice you for all goods supplied to you by us at the price agreed including, where applicable, any additional or associated costs as provided under the Terms of Supply.

You must pay to us all amounts invoiced in accordance with these Terms of Supply by the 20th day of the month following the date of issue of the invoice (the “due date”).  If you wish to dispute any invoice, then you must notify us immediately upon receipt of the invoice and the dispute resolution provisions outlined in these Terms of Supply will apply.

Default

If any invoice amount is not paid by the due date; you go into liquidation, receivership or voluntary administration or being a person become bankrupt; or you are in breach of these Terms of Supply then you will be in default. 

If you are in default, then

  • we will be entitled to cancel all orpart of your orders which have not been delivered in full; and
  • all amounts you owe us whether due for payment or not, will be immediately due and payable and we may charge default interest on any outstanding amounts at the ASB Unarranged Business Overdraft rate plus 2% for the time being calculated on a daily basis; and
  • you will be liable for and indemnify us against any losses, costs and expenses (including but not limited to collection costs and costs on a solicitor/client basis) incurred or suffered by us as a result of your default.  
Goods and Services Tax (“GST”)

Unless otherwise stated GST will be charged at the rate applicable on the price of the goods and services as at the date of our invoice.

Ownership

We will remain the owner of the goods supplied to you until all amounts invoiced to you are paid in full, including where you may have resold the goods prior to paying us within the terms of this agreement, in which case you shall hold the proceeds of sale of the goods on trust for us.  If any part of the goods shall become irrevocably incorporated with any other item, then title in that item will vest in us as co-owner until we have been paid for the goods in full.

If we validly cancel this agreement whilst we are still the owner of the goods, you will allow us or a nominated third party to enter your premises where the goods are located or assumed to be located and take possession of and remove the goods.

Insurance Charges / Risk

Even though we may remain the owner of the goods, risk in the goods will pass to you once they are collected from/leave the storage or devanning site, including where we deliver the goods to a site of your choice at your request. 

Until payment is received in full, while you hold the goods you must properly store and secure the goods and ensure the goods are insured, at your sole cost, for their full replacement value.  Any insurance payment received in respect of the goods shall first be applied in payment to us for any outstanding invoice for the goods.

PERSONAL PROPERTY SECURITIES ACT 1999 (“PPSA”)

(Capitalised expressions have the meaning prescribed to them in the PPSA)

You acknowledge our Security Interest in all goods (“Collateral”) supplied to you but not paid for under these Terms of Supply.

We reserve the right at our discretion to register a Financing Statement in respect of each category of goods supplied to you which comprises Collateral.  Our costs of registering a Financing Statement or a Financing Change Statement shall be paid by you and invoiced accordingly.  At our request you shall promptly execute any documents and do anything else required by us to ensure that our Security Interest in the Collateral created by these Terms of Supply constitutes a Perfected Security Interest over the goods comprising Collateral.

You will not agree to allow any person to file a Financing Statement over the Collateral without our prior written consent and shall notify us immediately if you become aware of any person taking steps to file a Financing Statement against any of the Collateral.

You:

  • agree that nothing in s114(1)(a), 133, and 134 of the PPSA will apply to these Terms of Supply; and
  • waive your right to do any of the following:
  • object to our proposal to retain anyPersonal Property under s121 of the PPSA;
  • not have goods damaged when we remove anAccession under s125 of the PPSA;
  • receive notice of the removal of an Accession under s129 of the PPSA;
  • apply to the Court for an order concerning the removal of an Accession under s131 of the PPSA;
  • to receive a copy of the Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to the Security Interest created by these Terms of Supply.
Collection of Goods

We or our customs agent will advise you prior to and when the goods are ready for collection. Collection of the goods from the devanning or delivery site is your responsibility and is required immediately the goods are ready. Should the goods not be collected then any storage costs that are charged to us will be invoiced to you OR we will advise the storage party that you should be invoiced for such costs directly.

If we agree to store producton your behalf, then you shall be liable for all storage costs (and any associated costs) and agree to pay them within normal payment terms.

We may, at your request, arrange delivery of the goods to a site of your choice. All handling, loading and transportation costs from the devanning/delivery site to your site of choice will be at your sole cost and we will invoice you accordingly.

We will make every effort to make the goods available on the date agreed but we will not be liable to you for failure to deliver by a specified date, or for consequential losses due to late delivery, or for loss caused by anything which is beyond our reasonable control. We will not accept cancellation of any order due to late delivery.

Consumer Guarantees Act 1993 (“CGA”)

Where we supply goods to you for business purposes within the meaning of the CGA then, pursuant to section43 of the CGA,  the provisions of the CGA will not apply to these Terms of Supply.

Defective Product and Limitation of Liability

We warrant that the goods supplied are as described or as close as practical to the description so that they do not materially differ from the description.

You must advise us within 30 days of you taking possession of the goods if you believe the product to be deficient for purpose or use, after this period we relinquish our responsibility.

If it is appropriate to follow up the claim, you will allow us to fully investigate your claim and you will, if requested, return a sample of the goods to us for inspection, any costs relating to a valid claim will be our responsibility.  Any costs relating to a rejected claim will be your sole responsibility and we will invoice you accordingly.

We will not be liable for any indirect or consequential loss incurred by you as the result of any act or omission by us.In any event our liability to you is limited to the value of the goods and/or services supplied by us and associated with any possible claim of liability.

Order Cancellation

We will not accept cancellation of an order unless:

  • the goods are part of our stocks and we receive written notice of cancellation before the goods are loaded for delivery; or
  • if the goods are not held in stock, we receive written notice of cancellation before we order the goods from our supplier or a third party.
Waiver

Any waiver of, or change to these Terms of Supply, or any consent we agree to or give you must be in writing and will be effective only in the specific instance and for the specific purpose for which it is given and is not to be read as applying on all occasions.

Terms of Supply Sole Evidence of Contract

These Terms of Supply, together with our Account Application which shall form part of these Terms of Supply, shall constitute the sole evidence of the contract between you and us to the exclusion of all conditions and warranties statutory or otherwise not expressly incorporated herein and it is strictly understood that you enter into these Terms of Supply solely and exclusively in reliance upon your own judgement and not upon any representation, condition or warranty made or alleged to be made by us or our agent.

Severability

If part of these Terms of Supply is deemed to be invalid, illegal or unenforceable, the remaining provisions will remain in full force and effect.

Prevailing Law

These Terms of Supply will be governed by New Zealand law and you agree to submit to the exclusive jurisdiction of the New Zealand Courts. Under these Terms of Supply, we will not be responsible in any way whatsoever or assume any liability for any product purchased by you but sold outside of New Zealand.

Dispute Resolution

If a dispute arises under these Terms of Supply, both parties agree to first discuss the dispute and, in good faith, try to settle it.  If the dispute cannot be resolved, then it must be referred to mediation to be taken by an independent mediator specified by a suitable organisation dealing in such matters.

No Court nor arbitration proceedings may be commenced, other than seeking urgent interlocutory relief, unless and until the above processes have been complied with.

Force Majeure

We shall have no liability to you under these Terms of Supply if we are prevented from or delayed in performing our obligations under the Terms of Supply or from carrying on our business by acts, events, omissions or accidents beyond our reasonable control, including strikes, lock-outs or other industrial disputes (whether involving our workforce or that of any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or Governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.

Personal Information

In so far as we hold any of your personal information in our records, we will do so in accordance with the Privacy Act 1993 and we undertake not to provide any of your personal information held by us to any third party without your prior permission.  

Cancellation

We shall be entitled to cancel these Terms of Supply and all or part of your orders which have not been delivered in full, without prejudice to any rights which may have accrued up to the date of cancellation, by written notice to you if:

  • you go into liquidation, receivership or voluntary administration or being a person become bankrupt; or
  • we are refused a permit or permission to import the goods or the goods are retained by MPI or NZ Customs; or
  • you are in default or are in breach of these Terms of Supply and fail to remedy the breach within 7 days of receiving notice from us of the breach or default.