Terms of service
Terms and Conditions of Plant Supply
Effective Date: 1 November 2025
1. Definitions and Scope of Agreement
1.1. “Seller” means Southern Cross Horticulture Limited and includes its related companies, employees, and agents.
1.2. “Purchaser” means the customer named in the Plant Supply Agreement or invoice.
1.3. “Goods” means all grafted kiwifruit plants and rootstock supplied by the Seller to the Purchaser, including different varieties and pot sizes.
1.4. These Terms and Conditions apply to all orders, quotations, and supply of Goods by the Seller and form the entire agreement between the parties in relation to the Goods supplied.
1.5. The specifications, grades (including Premium and Choice), and seasonal standards (Summer or Winter dispatch) applicable to the Goods are those published by the Seller on its website at https://southerncrosshorticulture.myshopify.com/ as at the date of the Purchaser’s order.
2. Orders and Price
2.1. All prices quoted are in New Zealand dollars and exclude GST and anything specified under 2.2 below.
2.2. Plant orders may incur costs for freight, wrapping and pallets. These costs will be included on the final invoice, unless otherwise stated or previously agreed in writing. See clause 4 for further information.
2.3. Orders are confirmed only once the Purchaser has paid the required deposit (see Clause 3).
2.4. Prices apply to Goods dispatched in the season specified in the Plant Supply Agreement. If dispatch is delayed to a later season, the Seller may require a new agreement and updated pricing.
2.5. The Seller may adjust prices if the Purchaser requests a change to the dispatch period, quantity, or variety.
3. Payment Terms
3.1. A 70% deposit is required in November to confirm orders of 50 or more plants, with the remaining 30% due on the final invoice.
3.2. Orders under 50 plants must be paid in full at the time of order.
3.3. Deposits are non-refundable, except where (a) the Seller is unable to supply the Goods, or (b) the Purchaser cancels before 15 November under Clause 9.1.
3.4. All accounts are due within 14 days of invoice date unless otherwise agreed in writing.
3.5. Interest may be charged on overdue amounts at 8% per annum.
3.6. The Seller may cancel or suspend any existing contracts with the Purchaser if any balance owed under this or any other agreement remains unpaid.
4. Delivery and Risk
4.1. All prices exclude freight and handling unless otherwise stated.
4.2. If requested, the Seller may arrange freight on behalf of the Purchaser, but all freight is at the Purchaser’s cost and risk. The Seller is not liable for any delay, loss, or damage in transit.
4.3. A pallet and packaging fee may apply and is non-refundable.
4.4. Risk in the Goods passes to the Purchaser upon loading for delivery or upon collection by the Purchaser, whichever occurs first.
4.5. The Purchaser must collect winter deliveries no later than 31 July of the delivery season (unless otherwise agreed in writing). If the Purchaser fails to collect Goods within one month of being notified they are ready, the Seller may retain all monies paid and dispose of the Goods at its discretion.
4.6. Property in the Goods remains with the Seller until payment has been made in full. Until such payment, the Seller may (to the extent practicable) enter the Purchaser’s premises and repossess any unpaid Goods.
5. Quality and Acceptance
5.1. The Purchaser must inspect the Goods immediately upon delivery or collection.
5.2. Any claim for unacceptable quality or incorrect supply must be notified in writing to the Seller within 48 hours of delivery. If no claim is made within that period, the Goods are deemed accepted.
5.3. If the Seller accepts a claim, the Seller’s liability is limited to supplying replacement plants of the same type (subject to availability). No refunds will be given.
5.4. The Seller will take reasonable care that plants are true to type at dispatch, but gives no warranty beyond this.
6. Licensing and Compliance
6.1. The Purchaser is solely responsible for obtaining and maintaining any licences, consents, or approvals required to plant, grow, or use the Goods (including Zespri Variety Licences).
6.2. The Seller accepts no responsibility and shall have no liability if the Purchaser is unable to obtain or maintain such licences, consents, or approvals.
6.3. Failure by the Purchaser to secure or maintain the necessary licences or approvals does not release the Purchaser from its payment obligations under this Agreement.
7. Warranties and Limitations
7.1. The Seller warrants only that the Goods supplied are of the variety and grade (Premium or Choice) specified in the Purchaser’s order, and that they meet the applicable Specifications at the time of dispatch.
7.2. Except as expressly stated in this Agreement, all warranties, conditions, or guarantees (whether expressed, implied, or statutory) are excluded to the fullest extent permitted by law.
7.3. The Seller takes reasonable care to ensure the Goods are healthy and of merchantable quality at the time of dispatch. The Purchaser acknowledges that the survival, growth, and performance of the Goods after dispatch depend on factors outside the Seller’s control, including site conditions, management practices, climate, disease, and pests. Accordingly, the Seller gives no warranty and accepts no liability in relation to the performance of the Goods once planted.
7.4. To the maximum extent permitted by law, the Seller’s liability for any claim relating to the Goods is limited to the price paid for the affected Goods.
7.5. The Seller is not liable for any loss of profits, loss of opportunity, or any indirect, special, or consequential loss or damage.
8. Force Majeure
8.1. The Seller is not liable for any delay or failure to perform its obligations under this Agreement where the delay or failure is caused by events beyond the Seller’s reasonable control, including (without limitation) adverse weather, natural disaster, disease (including PSA or other plant diseases), pest outbreaks, fire, labour shortages, transport or supply chain disruption, government action, or regulatory changes.
8.2. If a Force Majeure event occurs, the Seller may suspend delivery of the Goods for the duration of the event or, if supply becomes impracticable, cancel the Agreement in whole or in part by notice to the Purchaser.
8.3. A Force Majeure event does not release the Purchaser from its payment obligations for Goods already delivered or made available for collection.
9. Cancellation and Default
9.1. The Purchaser may cancel an order only by written notice received by the Seller on or before 15 November of the season in which the order was placed (the grafting cutoff date). Any deposits paid will be refunded in that case, less any amounts owing by the Purchaser.
9.2. After 15 November, orders are binding and cannot be cancelled. If the Purchaser wishes to transfer the order to another buyer, the Seller may (at its discretion) approve the transfer provided that the proposed buyer meets all eligibility requirements (including KVH and Zespri requirements). The Purchaser must supply all necessary information to enable the Seller to verify eligibility.
9.3. If the Purchaser fails to make payment when due, breaches this Agreement, or becomes insolvent, bankrupt, or subject to external administration, the Seller may (without prejudice to any other rights): a. cancel this Agreement or any other agreement with the Purchaser, in whole or in part; b. suspend delivery of further Goods; and c. enter the Purchaser’s premises and repossess any Goods not paid for in full.
9.4. Cancellation or termination of this Agreement does not affect the Purchaser’s obligation to pay for Goods already supplied or for any costs properly incurred by the Seller prior to cancellation.
10. Governing Law and Disputes
10.1. This Agreement is governed by the laws of New Zealand.
10.2. The parties must first attempt to resolve any dispute arising under this Agreement by good faith discussions. If the dispute is not resolved within 10 Business Days of written notice of the dispute, either party may refer the matter to mediation.
10.3. Mediation must commence within 15 Business Days of the referral, using a mediator agreed between the parties (or, if they cannot agree, appointed by the President of the New Zealand Law Society).
10.4. If mediation is not concluded within 20 Business Days after it commences, or if either party fails to participate in good faith, either party may immediately commence proceedings in the courts of New Zealand.
10.5. Nothing in this clause prevents a party from seeking urgent interim relief from a court where necessary to protect its legal rights.