Terms and Conditions of Trade
1 Interpretation and Application
1.1 These Terms of Trade, as amended or replaced from time to time, govern each supply by FRP Products Limited (the “Supplier”) to you (the “Customer”) of
• The Products as described in the attached Product Schedule; and
• Services associated with the installation, commissioning and servicing of the Products as described in the Product Schedule.
1.2 These Terms of Trade are deemed to be incorporated into, and form part of, each contract for the supply of Products and/or Services (howsoever entered into) as if these Terms of Trade were set out in full therein.
1.3 In these Terms of Trade, unless the context requires otherwise:
“Customer” means you and any of your permitted successors or assigns;
“Force Majeure Event” means an event or cause reasonably beyond a party’s control including any action of Government, act of God, fire, earthquake, storm, flood, landslide, explosion, power failure, sabotage, epidemic, national emergency or act of war but does not include financial management difficulties or any risk or event, including those listed above, the effects of which could have been prevented by the taking of reasonable care by either party;
“GST” means goods and services tax chargeable or for which a person may be liable under the Goods and Services Tax Act 1985 or any other applicable service tax, sales tax or other tax chargeable, arising in New Zealand or elsewhere;
“Parties” means the Supplier and the Customer and “party” means either one of the Supplier or the Customer;
“PPSA” means the Personal Property Securities Act 1999.
“Price” means the price (exclusive of GST) for the Product as specified in the Product Schedule.
“Products” means the Products described in the attached Product Schedule as may be amended from time to time;
“Purchase Order Number” means the number recorded on a purchase order in accordance with clause 2.1;
“Services” means the services supplied in connection with the supply, installation, commissioning or service of the Products;
“Supplier” means Conveyor Industries Limited and its permitted successors and assigns;
“Working Day” means any day other than a Saturday or Sunday or Public Holiday observed in New Zealand.
1.4 In these Terms of Trade:
• Terms given a defined meaning have that meaning where the context permits;
• Words referring to the singular include the plural and vice versa;
• Any reference to any of the Parties includes that party’s executors, administrators or permitted assigns;
• Everything expressed or implied in these Terms of Trade which involves more than one person binds and benefits those people jointly and severally;
• Clause headings are for reference purposes only;
• A reference to a person includes any other entity or association recognised by law;
• All reference to dollars and $ are references to New Zealand dollars unless otherwise stated;
• References to time of day are references to New Zealand time;
• All periods of time or notice exclude the days on which they are given and include the days on which they expire;
• Time is of the essence.
2.1 Orders may be placed with the Supplier by way of a purchase order, specifying a Purchase Order Number and sent by email, post, facsimile or phone.
2.2 All orders must specify:
• The required quantity of Products;
• What (if any) Services are required;
• The Customer’s delivery address;
• Any particular or special requirements;
• The Customer’s billing address and any special invoicing requirements.
2.3 The Supplier is not obliged to accept any order.
2.4 The Supplier will promptly confirm receipt of any order, either by written or verbal confirmation, and agree with the Customer on a delivery date. However, the Supplier shall not be liable for any delay in delivery.
2.5 Where the Products are being supplied to a Customer outside of New Zealand, unless otherwise agreed at the time an order is placed, the supply of the Products will be Ex Works (as defined in the current version of The International Chamber of Commerce’s International Comverse Terms (Incoterms)) from the Supplier’s premises.
2.6 The provisions of the United Nations Convention on Contracts for the International Sale of Goods done at Vienna on 11 April 1980 and the Sale of Goods (United Nations Convention) Act 1994 are hereby excluded and to not apply to the supply of any Products by the Supplier.
3 Supply of Product
3.1 The Supplier will exercise reasonable care and skill to supply the Products in accordance with the timeframe and such other directions as contained in the Purchase Order. However, the Supplier shall not be liable for any delay in delivery.
4.1 The Price is as set out in the Product Schedule and for the avoidance of doubt is exclusive of GST; and
4.2 Excludes costs associated with delivery, and where relevant, applicable export duties which will be the responsibility of the Customer.
4.3 The Prices may be amended from time to time at the discretion of the Supplier on the condition that the Supplier must give the Customer notice in writing of any increased Price. The Supplier is not obliged to fulfil any extraordinary orders which in its reasonable opinion are placed to avoid the application of any price increase.
5.1 The Customer will pay the Supplier the Price, together with any applicable GST, to the Supplier on or before the 20th of the month following the month of the Supplier’s invoice.
5.2 Payment is to be by electronic transfer into the Supplier’s nominated bank account or such other method as agreed between the parties. Payment is to be without setoff or deduction.
5.3 Failure to make any payment by the due date will result in the Customer being charged interest at the rate of 16% per annum, calculated on a daily basis on the overdue amount from the due date until the date when payment is received by the Supplier.
5.4 The Customer will also be liable to pay all expenses and legal costs (including on a solicitor/client basis) incurred by the Supplier as a result of the Customer’s default in payment.
5.5 Where a default in payment exceeds 3 months, the Supplier is entitled to repossess the Product. The Customer grants the Supplier and its agents an irrevocable licence to enter premises occupied by the Customer for the purpose of exercising such rights.
5.6 Any dispute in relation to the Price payable must be notified to the Supplier in writing prior to the due date for payment. In that event, the dispute resolution provisions at clause 10 will apply to the disputed portion of the Price.
5.7 Where a disputed Price contains a portion/amount that is not disputed, the Customer must pay the Supplier the undisputed portion/amount pursuant to clauses 5.1 and 5.2 the of a disputed Price.
5.8 In the case of supplies overseas:
• Where any sums due to be paid to the Supplier under these Terms are subject to any withholding or similar tax, the parties must use their best endeavours to do everything and sign all deeds and documents as will enable them to take advantage of any applicable double taxation treaties with the object of paying the sums due to the Supplier on a gross basis.
• If requested by the Supplier by notice in writing to the Customer prior to the despatch of any Products to the Customer, the Customer must immediately (and in any event before the despatch of the Products) open a confirmed, irrevocable letter of credit at a bank nominated by the Supplier in favour of the Supplier in an amount equal to the Price payable by the Customer for such Products. The Supplier must be entitled under such letter of credit to payment for the Products 30 days after production of a copy of the relevant invoice and the bill of lading.
6 Delivery and Installation
6.1 Unless otherwise agreed, the Supplier will deliver the Products to the Customer by making them available for collection from the Supplier’s premises on the agreed delivery date.
6.2 The Customer is responsible for examining the Product upon delivery, or in the case of a Customer based outside of New Zealand, upon receipt of the Product.
6.3 The Customer shall notify the Supplier in writing within 5 Working Days of delivery or receipt of the Products (as the case may be in light of clause 6.2) of any complaint in respect of the Products, whether as to quality, quantity, or otherwise. Failure to notify the Supplier of any defects within this period shall result in the Customer being deemed to have accepted the Products as being free from defect or damage.
6.4 Upon receipt of a notice referred to in clause 6.3, the Supplier may, in its discretion:
◦ Remedy the defect complained of where such is possible; or
◦ Compensate the Customer for the defect complained of; or
◦ Replace the whole or any part of the Product delivered; or
◦ Accept a return of the Product in which case the Customer will refund the Price paid.
6.5 The Supplier does not provide an installation service. The Customer is responsible for installing the Product in accordance with the Supplier’s installation instructions.
7 Risk and Insurance
7.1 All risk in the Products shall pass to the Customer upon delivery of the Products. In the case of overseas supplies, delivery occurs in accordance with clause 2.5 of these Terms.
7.2 Notwithstanding clause 7.1, ownership of the Products supplied shall not pass to the Customer until payment in full has been received by the Supplier.
7.3 After delivery, but while ownership remains with the Supplier, the Customer must ensure:
• The Products are clearly identified as belonging to the Supplier;
• Any proceeds from a subsequent sale or lease of the Products are held in trust for the benefit of the Supplier;
• No interest or charge over the Products is granted to a third party; and
• That the Products are insured against all risks, at the Customer’s cost, naming the Supplier as loss payee, for the Product’s full replacement value.
7.4 The Customer acknowledges that until such time as payment in full has been received by the Supplier, the Supplier has a Security Interest in the Products (as that term is defined in the PPSA) which extends to and includes all proceeds derived from the Products. These Terms of Trade constitute a Security Agreement for the purpose of the PPSA in respect of all present and after acquired personal property of the Customer (except for any items of personal property which is not supplied by the Supplier) for the purpose of securing payment of all amounts owed by the Customer to the Supplier from time to time, and at any time. The Customer will, when requested by the Supplier, promptly execute any documents and do anything else required by the Supplier to ensure the Security Interest created under these Terms of Trade constitutes a first ranking Security Interest over the relevant Product and its proceeds, including any information the Supplier reasonably requires to complete a Financing Statement or Financing Change Statement.
7.5 The Customer acknowledges that if it is acquiring the Product for the purposes of a business, the provisions of the Consumer Guarantees Act 1993 will not apply.
7.6 The provisions of this clause 7 survive termination expiry of these Terms.
8.1 The Supplier warrants to the Customer that:
8.2 Clear title to the Products will pass to the Customer at the time title passes;
• In providing the Services it will carry out its obligations with reasonable care, skill and diligence and will employ techniques of a high quality and standard and in accordance with best industry practice;
• All Products supplied by the Supplier:
• Are of merchantable quality and are fit for their intended purpose;
• Are free from any defect in design, materials and workmanship;
• Are appropriately packed and securely stored until completion of delivery and installation (if applicable).
8.3 The warranties set out in these Terms of Trade do not apply where:
• The Customer has, without the prior written approval of the Supplier, attempted to repair, dismantle, or in any other manner tamper with any component of the Products;
• The Products have been installed or used by the Customer in:
◦ A manner contrary to the Supplier’s manuals or other instructions as provided to the Customer;
◦ A detrimental environment;
◦ A manner likely to cause excessive wear and tear; or
◦ An improper manner.
8.4 Any condition or warranty that might otherwise be implied or incorporated within these Terms by reason of law, trade, custom or otherwise is expressly excluded. All implied terms, conditions and warranties contained in the Sale of Goods Act 1908 are expressly excluded.
9.1 The Supplier’s maximum liability in contract, tort, equity, statute, regulation or otherwise for any loss, damage or injury (including personal injury) directly or indirectly arising from any defect in, or noncompliance of, any Product, or any other breach by the Supplier of these Terms of Trade, will not in aggregate, exceed the Price for the particular Product or Service that caused the loss, damage or injury.
10 Dispute Resolution
10.1 Where any dispute arises in connection with these Terms of Trade the complaining party must promptly give full written particulars of the dispute to the defaulting party. The parties shall then endeavour to meet and resolve the dispute in good faith.
10.2 Where any dispute remains unresolved within 15 Working Days of written particulars being given, the parties can pursue their full legal rights, including but not limited to Court action.
10.3 This clause does not apply to undisputed debts and/or invoices. The Supplier is entitled to pursue debt recovery action, including personal and or corporate insolvency procedure.
11 Intellectual Property
11.1 The Customer acknowledges that all intellectual property rights in the Product and/or Services, including, without limitation, patents, trademarks (whether registered or unregistered), calculations, data, specifications, designs, drawings, procedures, technical processes and any other information whatsoever relating to the Products, belong to the Supplier. The supply of the Products to the Customer does not confer any right or licence upon the Customer to use, exploit or otherwise utilise any such intellectual property rights.
11.2 This clause 11 survives termination or expiry of these Terms.
12 Force Majeure
12.1 Neither party will be liable to the other for any delay or noncompliance with their obligations under these terms of Trade caused by a Force Majeure Event provided each party has taken all reasonable steps to minimise any loss, damage or delay resulting from a Force Majeure Event.
13 Information and Privacy
13.1 The Customer agrees that the Supplier may obtain information about the Customer from the Customer or any other person in the course of the Supplier’s business, including credit assessment, debt collecting and direct marketing activities, and the Customer consents to any person providing the Supplier with such information.
13.2 The Customer agrees that the Supplier may use information it has about the Customer relating to the Customer’s creditworthiness and give that information to any other person for credit assessment or debt collection purposes.
13.3 If the Customer is an individual, any personal information that the Customer may provide to the Supplier at any time shall be held by the Supplier in accordance with the principles of the Privacy Act 1993.
13.4 The Customer authorises the Supplier to use any personal information provided for the purposes of checking the Customer’s credit (where applicable) and introducing other products or services to the Customer.
14 Governing Law
14.1 These Terms of Trade will be governed by and construed in accordance with the Laws of New Zealand. The parties agree to submit to the nonexclusive jurisdiction of the Courts of New Zealand.
15.1 Severance: If any part or a provision of these Terms is judged invalid or unenforceable in a jurisdiction, it is severed for that jurisdiction and the remainder of these Terms will continue to operate.
15.2 Confidentiality: The Customer shall treat as confidential all non-public information and material received from the Supplier and shall not disclose the same without the Supplier’s prior written consent. For clarity, confidential information includes the Prices.
15.3 Entire Agreement: These Terms (of which the Product Schedule forms part) set forth the entire agreement and understanding of the parties and supersede all prior oral or written agreements, understandings or arrangements relating to its subject matter.
15.4 Variation: These Terms may be varied from time to time by the Supplier and such amendments shall be effective immediately upon the Customer being provided with notice of the amendment (which may include posting the amended Terms of Trade on the Supplier’s website).
15.5 No Waiver: A provision or right under these Terms may not be waived except in writing signed by the party granting the waiver.
15.6 Costs: The Customer must pay all expenses and legal costs (including on a solicitor/client basis) incurred by the Supplier of and incidental to the enforcement or attempted enforcement of the Supplier’s rights, remedies and powers under these Terms.
15.7 Notices: In relation to the service of notices under these Terms:
• any notice or other document must be in writing and will be deemed to have been duly given by: delivery; airmail post; or by facsimile
• A notice or document is taken to be received:
• if by delivery when it is delivered;
• if sent by airmail post, 10 days after posting; and
• if a facsimile, when transmitted to the correct facsimile address of the recipient in its entirety.