Terms of Trade

Introduction

1.1 Subject only to any other written agreement between Horticentre Limited ("HC") and you, these terms of trade apply to all sales of goods. You will be bound by these terms on each occasion you place an order for goods with HC. You will also be bound by these terms if you accept a delivery of goods from HC which have not been ordered by you.

2. Controlled Substance Licensing

2.1 Under the Hazardous Substances and New Organisms Act 1996, you may only purchase controlled substances as defined by that Act if you have a Controlled Substances Licence ("licence").

2.2 HC will not supply you with any controlled substances unless you hold a current licence which is registered with us at the time of purchase.

3. Price and Price Variation

3.1 Unless otherwise agreed in writing, the purchase price shall be the current price on the day of delivery of the goods. Prices do not include any delivery surcharges.

3.2 HC reserves the right to amend any price quoted from time to time and you agree to pay the amended price to take into account variations in the cost to HC of performing the contract where the variation arises from any of the following:

(a) delay in delivery of the goods in circumstances beyond HC's control including any default on your part whether in relation to your instructions or lack of them or otherwise;

(b) variation in the cost to HC of acquiring the goods directly or indirectly through changes in the rates of freight or transport costs, insurance, customs duties, taxes, existing tariff classifications or any variation in currency exchange rates;

(d) any correction of errors or omissions on the part of HC or any of its representatives.

4. GST

4.1 All goods and services sold are subject to Goods and Services Tax.

5. Payment

5.1 Unless otherwise agreed in writing, the purchase price shall be paid to HC at its address by the 20th of the month following the month in which the invoice was dated. Payment will not be accepted by any means other than cash, cheque or direct credit.

5.2 Except in the case of return of goods in terms of clause 9, you shall not be entitled to withhold payment of or make any deductions from the price without the prior written consent of HC.

5.3 HC reserves the right to suspend delivery of further goods if the terms of payment are not strictly adhered to by you.

6. Late Payment

6.1 HC may charge interest on overdue accounts at the rate notified from time to time by HC on its invoices and/or statements.

6.2 You shall pay to HC all costs, expenses or disbursements (including any debt collection agency's or solicitor's costs) incurred by HC in recovering any outstanding monies.

7. Delivery

7.1 HC shall deliver the goods to the address stated on the order or as agreed by HC in writing.

7.2 HC shall deliver the goods by carrier or other form of transport as HC considers to be appropriate, the cost of delivery being to your account unless otherwise agreed in writing.

7.3 Where you specify the carrier and/or the means of carriage, HC shall deliver the goods in the way specified, but reserves the right to require the cost of delivery to be prepaid.

7.4 HC will neither be responsible for any delay or non-delivery of goods as a result of circumstances beyond HC's control, nor will HC be responsible for any consequences (direct/indirect) arising from delay or non-delivery.

8. Risk

8.1 When our obligations as stated in clause 7 have been fulfilled, risk in the goods passes to you.

9. Return of Goods

9.1 HC will only accept the return of the goods for credit and/or exchange if:

(a) HC agrees to accept the goods; and

(b) HC issues a return advice number prior to the return of the goods; and

9.2 Return freight cost will be payable by HC only when there has been an error on HC's part.

9.3 No return goods shall be accepted by HC (even if HC has agreed to do so) if:

(a) they have been tampered with by you or any other person; or

(b) if they have been expressly sold to you on a non-return basis; or

9.4 If any goods are returned to HC but not accepted in terms of clause 9.3, they shall be returned to you at your expense.

9.5 Under no circumstances shall HC accept the return of any goods that have been procured from a third party at your request.

10. Privacy Act 1993 - Disclosure & Consent

You:

10.1 Warrant that all information given in the accompanying application is true and correct.

10.2 Accept that use of this account constitutes acceptance of these terms of trade.

10.3 Authorise HC to gather, collect, retain and use personal information about you it reasonably regards necessary for credit inquiry purposes, from any appropriate person or company.

10.4 Authorise any person, or company to provide HC with any reasonable information which is necessary for credit inquiry purposes.

10.5 Acknowledge that you are not required to provide HC with any information but if you do not, it may affect HC's decision to provide credit.

10.6 Understand that you have certain rights under the Privacy Act 1993 to access and correct information held by HC.

11. Guarantees

11.1 Except to the extent required by the Consumer Guarantees Act 1993 ("CGA"), HC does not provide any Express Guarantees (as defined in CGA) other than those expressly confirmed by HC in writing.

11.2 If the goods are acquired by you for business purposes, you agree that the CGA does not apply.

11.3 If you supply any of the goods to a third party, you must not give any undertaking or make any assertion or representation in relation to the goods without the prior written approval of HC, and you shall indemnify HC against any liability or cost incurred by HC as a result of any breach by you of this provision.

11.4 Where you supply any of the goods to a third party who acquires them for business purposes, it must be a term of your contract with that party that the CGA does not apply to the supply of the goods. You shall indemnify HC against any liability or cost incurred by HC under the CGA as a result of any breach by you of this provision.

11.5 In no circumstances shall HC's liability under any claim exceed the price of the goods.

11.6 Nothing in these terms is intended to have the effect of contracting out of the provisions of the CGA except to the extent permitted by the Act, and these terms are to be modified to the extent necessary to give effect to that intention.

12. Personal Property Securities Act 1999 ("PPSA")

12.1 In submitting this application, you acknowledge and agree that:

(a) these terms constitute a security agreement for the purposes of section 36 of the Personal Property Securities Act 1999 ("PPSA"); and

(b) HC takes a security interest in all goods previously supplied to you and all goods that will be supplied to you while the trade account continues.

12.2 You undertake to:

(a) sign any further documents and/or to provide any further information reasonably required by HC to register a financing statement or financing change statement on the Personal Property Securities Register ("PPSR");

(b) indemnify, and upon demand to reimburse HC for all expenses incurred in registering a financing statement or financing change statement on the PPSR or releasing any goods previously charged;

(c) not register a financing change statement (in accordance with Regulation 9) or a change demand (in accordance with Regulation 10) without HC's prior written consent;

(d) notify HC in writing not less than 14 days prior to any proposed name change and/or any other proposed change in contact details listed in this application.

12.3 To give effect to the provisions of clauses 12.1 and 12.2, you (and the guarantor(s)) nominate and appoint HC as your lawful attorney to execute any documents and do and perform any acts that may be necessary to perfect and/or preserve the security interest granted by you over all goods supplied to you and you further undertake not to revoke the power of attorney given by this clause so long as the trade account continues to operate.

12.4 The parties agree to contract out of the PPSA in accordance with Section 107 of the PPSA to the extent that Section 107 applies for the benefit of, and does not impose a burden on, HC. You waive your right to receive a verification statement in respect of any financing statement or financing change statement registered by or on behalf of HC in respect of the security interest created by these terms of trade.

13. Customer's Liability & Default

13.1 If you:

(a) fail to make any payment due under the contract or commit any other breach of any of your obligations under the contract; or

(b) suffer execution under any judgment; or

(d) make any composition or arrangement with any creditor; or

(e) being a company, pass a resolution for winding up or have a receiver appointed over any of its property or have a winding up petition presented against it,

HC (in addition to any other remedies it may have against you) may treat any current contract and the trade account as terminated and, any monies owing to HC, whether or not due under these terms, shall immediately become due and payable. Any termination shall be without prejudice to any claim or right HC may otherwise possess.

14. Variation of Terms and Conditions

14.1 HC may from time to time and in its sole discretion amend, add to or delete any of these terms.

14.2 Notice of any variation to these terms shall be deemed to have been given by HC delivering an invoice and/or statement to you exhibiting the varied terms.

14.3 No variation altering the nature or extent of any security interest granted by you under clause 13 shall be made without your written agreement.

15. Governing Law

15.1 These terms are governed by the laws of New Zealand.

15.2 Any dispute arising out of these terms shall be submitted to the non-exclusive jurisdiction of the Courts of New Zealand.