Terms of Trade

TAKANA NATIVE TREES LTD TERMS OF TRADE

1. What is the purpose of this agreement?
1.1 This agreement sets out the terms that apply to the relationship between you (and “your”) and Takana Native Trees Ltd (“we”, “us” and “our”).

2. What information about you can we collect?
2.1 You agree to provide us with and allow us to use all information necessary to give effect to this agreement, the provision of our products and performance of our services.
2.2 Unless your consent is withdrawn in writing, you agree to the disclosure of information:

• To give effect to our products and services;
• To enforce our obligations under this agreement or an additional agreement;
• When authorised by you or required by law;
• To assess credit worthiness; and
• To market any of our products and services.

2.3 We will comply with the Privacy Act 1993. We will not use your information unless we have reasonably ensured it is accurate, complete, relevant and not misleading. If we give your information to another entity, we will do everything reasonably within our power to prevent unauthorised use or disclosure of your information. You may access any of your information and ask us to correct any mistakes.

3. What are our products and services?

3.1 “Product(s)” and “service(s)” means and includes without limitation:

• Trees, plants distribution, supply, delivery and retail; and
• Agency fees, charges and out of pocket expenses incurred by us, identified in any document or electronic record issued by either party (all of which are deemed to be incorporated into and form part of this agreement) or identifiable as ours by marking or a manner of storage enabling identification.

4. What is the price?
4.1 The price is the cost of the products and services as agreed between you and us from time to time subject to GST and out of pocket expenses such as freight. If no price is stated, the price will be the cost that we provide the products and services at the time of your order. The price is subject to reasonable change due to circumstances such as changes in regulations, currency and third party freight fluctuations.

5. When and how do you pay us?

5.1 You agree to pay us in full:

• For credit account holders: payment on or before the 20th day of the month following the date of our invoice, unless otherwise stated;
• For those without a credit account: payment in advance of delivery or pick up of the products;
• Expenses incurred as a result of enforcing any of our rights contained in this agreement, including PPSR, debt collection and legal fees; and
• Without set-off, deduction or counterclaim.

5.2 You agree to us allocating or reallocating any payment received from you towards any invoice. If no allocation is made, then it is deemed to be in such a way that preserves the maximum value of our purchase money security interest in the products.
5.3 You will be responsible for payment if a third party that you expect to pay you fails to pay.

6. What warranties apply?

6.1 We stand behind our trees and by agreement with you within a reasonable period following delivery and handover of ownership of the trees.
6.2 We are not liable for delay or failure to perform our obligations if the cause is beyond our reasonable control.
6.3 Subject to any applicable insurance and limitations under 6.1-6.2, if we are deemed liable to you for loss or damage of any kind arising from the provision of products and services to you, including consequential loss, whether suffered or incurred by you or another person or entity and whether in contract, tort, or otherwise, then you agree that our total liability is limited to the value of the products and services provided to you.

7. What ownership and security rights do we have?
7.1 We retain ownership of and hold a security interest in all products until you have paid us in full for all products and services provided to you.
7.2 After delivery and whilst we retain any interest in the same, you must store all products in such a way that our interests are protected and they can be identified as provided by us.
7.3 You may use the products only if paid in full and for the purpose for which they were intended and supplied by us.

8. What if an issue or dispute arises in relation to our products and services?
8.1 If an issue arises in relation to products that have been delivered, such as incorrect or short supply, then you must notify us in writing within forty-eight (48) hours of receipt. Non-notification is deemed to be acceptance of the products.
8.2 Return of products for reasons other than under warranty is at our discretion, subject to:

• You being responsible for the cost of return including delivery;
• The products not having been subject to abuse, neglect, misuse, accident, or services of any unauthorised third party; and
• The products being in original saleable condition.

8.4 Any products the subject of 8.1-8.2 must not be destroyed or removed until we have inspected the products or received a photograph of the product, or required they be returned to us or waived such right. Takana Native Trees Ltd, 14A Takatu Road, Matakana.  www.takana.co.nz • don@takana.co.nz • 0800 Takana • 021 920009

9. When will the products and services be provided?
9.1 We are responsible for the products until they are delivered or picked up by you, whichever comes first.
9.2 Delivery is complete when we give the products to you, give the products to a third party carrier, or leave the products at your premises or delivery address. The time of delivery is not an essential term of our agreement.
9.3 Though we will use our best endeavours to avoid unexpected delays, delivery may be delayed due to transportation methods, our supplier stock levels and production schedules. We may partially deliver products listed in one order or invoice without added cost to you. If the parties agree on delivery by instalments and we fail to deliver an instalment, the failure will not give rise to a right of cancellation.
9.4 Risk for the products lies with us until delivery, pick up or when ownership passes in accordance with 7.1, whichever comes first.

10. What if you want to vary an order?
10.1 All variations to an order must be notified to us in writing, and we must agree to the same in writing. Where we have reasonably relied on your original instructions, you will be responsible for payment of the original price of the products and services.

11. When can a party cancel this agreement?
11.1 Subject to 11.2-11.5, either party may cancel all or any part of this or any agreement at any time by giving twenty-one (21) days prior written notice.
11.2 We have the right by fourteen (14) days prior written notice to suspend or cancel all or any part of this or any agreement for the provision of products and services if you default by:

• Failing to pay or indicating you will not pay any sum owing by the due date;
• Any of your creditors seizing or indicating they will seize any products provided to you;
• Products in your possession becoming materially damaged while any amount is unpaid;
• Being bankrupted, insolvent, under statutory management or put into liquidation;
• A receiver being appointed over or a landlord possessing any of your assets;
• A court judgment entered against you remaining unsatisfied for seven (7) days;
• Breaching the terms of this agreement; and
• An adverse material change in your financial position.

11.3 If you default, we may exercise a lien against any products in our possession.
11.4 You agree that if you default and the default is not remedied within fourteen (14) days of occurrence, we may enter any premises occupied by you to inspect or retrieve any products and may re-sell any products and credit the net sale proceeds to your account for the invoice value less adjustment for the condition of the products.
11.5 Cancellation under 11.1 or cancellation or suspension under 11.2 will not affect either party’s claim for any amount due at the time of cancellation or suspension, damages for any breach of obligations under this agreement, and any other legal rights either party may have. Upon cancellation of this agreement, any amount owed by you for products and services provided up to and including the date of cancellation will become due and current orders will terminate.

12. What else is agreed?
12.1 A failure by either party to enforce any of the terms of this agreement will not be deemed to be a waiver of any of the rights or obligations under this agreement.
12.2 Neither party may assign or transfer their rights or obligations under this agreement to any other without our prior written consent.
12.3 If any of these terms are determined to be invalid, void, illegal, or unenforceable, the validity, existence