CONDITIONS OF SALE
1. In these conditions “the Sellers” shall mean REHAU Limited and the “the Buyers” the Buyers whose name appears overleaf. “The Goods” shall mean the goods described overleaf and “the Price” shall mean the total price payable by the Buyers for the goods, including Goods and Services Tax (“GST”) or any similar or replacement tax where applicable. “The Equipment” and “Drawings” shall have the meaning set out in clause 6 (e).
2. (a) Any estimate or quotation given by the Sellers is an invitation to treat only and is valid for a period of 30 days only (unless previously withdrawn by the Sellers).
(b) All goods are supplied by the Sellers to the Buyers solely on these conditions, which contain the entire obligations between the Sellers and the Buyers to the exclusion of any other terms and conditions subject to which any quotation is placed or purported to be accepted or placed by the Buyers.
(c) No variation of these conditions shall be binding unless agreed in writing between the authorised representatives of the Buyers and the Sellers.
(d) No conditions submitted or referred to by the Buyers when accepting this offer or incorporated in any of the Buyers’ acceptance forms or standard terms and conditions of purchase or elsewhere shall form part of the Contract unless otherwise agreed in writing by the Sellers and to the extent that any conditions submitted or referred to by the Buyers would otherwise form part of the Contract than the same shall be deemed to be waived.
(e) Any typographical, clerical or other error or omission or any inconsistency in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Sellers shall to subject to correction without any liability on the part of the Sellers.
3. (a) The Goods are supplied at the Sellers’ Price ruling at the date of delivery. If between the date of the Contract and the date of delivery the Sellers’ Price of the Goods is increased, the Sellers shall notify the Buyers and the Buyers may by written notice to the Sellers within seven days of dispatch of the Sellers’ notice cancel the Contract. In the event of such cancellation, the Sellers shall repay any deposit to the Buyers, but shall be under no further liability to the Buyers whatsoever. If the Buyers do not so notify the Sellers, the Contract will remain in force and the Buyers shall be liable to pay the Sellers the increased Price notified by the Sellers.
(b) Notwithstanding anything in (a), when Goods are sold on c.i.f. terms, any increase in the rate of freight or any other expenses of carriage or of insurance between the date of the Contract and the date of dispatch of the Goods shall be paid by the Buyers without any right of cancellation.
4. (a) Unless otherwise expressly agreed in writing, the Price must be paid in full on or before the date of delivery of the Goods to the Buyers. The Buyers agree to pay interest at the rate of 5% above base lending rate or 10% per annum (whichever be the higher) on any sum overdue to the Sellers.
(b) In the event of the Buyers failing to fulfil any terms of payment agreed with the Sellers or if the Sellers shall at any time have any doubts as to the solvency or financial responsibility of the Buyers the Sellers shall be entitled to refuse to make any further delivery of Goods under this or any other Contract except upon receipt of cash or other security satisfactory to the Sellers prior to delivery of the Goods.
5. (a) If no time for delivery is specified in the Contract, the Buyers shall be bound to accept the Goods when they are ready for delivery by the Sellers.
(b) Unless otherwise agreed in writing, the place of delivery of the Goods shall be the Sellers’ premises specified overleaf. (c) The Sellers shall have the right to deliver up to 20% more or less than the quantity ordered and the Price payable by the Buyers shall be increased or decreased pro rata.
(d) In the event of the delivery being wholly or partly suspended or delayed by act of God, fire, accident, riot, civil commotion, hostilities, war, strikes, lock-outs, import and/or export restrictions, emergency regulations, breakdown of plant, non-delivery of raw material or any other event of any kind whatsoever which is beyond the control of the Sellers, the Buyers shall have no right of cancellation of the Contract but shall accept delivery of the Goods at such time after the termination of such suspension or delay as the Sellers are reasonably able to deliver the Goods, having regard to the Sellers commitments to other customers. If, however, the delivery of any Goods is suspended or delayed for a period exceeding four months from the date when the Goods would otherwise have become due for delivery to the Buyers, then, unless otherwise agreed in writing, so much of the Contract as relates to those Goods only shall automatically be cancelled and the Contract shall remain in force with regard to any other Goods covered by the Contract.
(e) Any dates quoted for delivery of the Goods are approximate only and the Sellers shall in no circumstances be liable to the Buyers for any loss or damage howsoever caused resulting from non-delivery or any delay in delivery of any of the Goods howsoever caused. Time for delivery shall not be of the essence. The Goods may be delivered by the Sellers in advance of the quoted delivery date upon giving reasonable notice to the Buyers.
6. (a) All Goods delivered to the Buyers shall be at the Buyers’ risk from the time of dispatch.
(b) If the Sellers agree to deliver the Goods to some place other than their own premises, the Goods will entirely at the Buyer’s risk from the moment they are delivered to the carrier and the Buyers will insure the Goods accordingly and indemnify the Sellers against any costs or expenses for transport.
(c) All Goods delivered to the Buyers shall remain in the legal and beneficial ownership of the Sellers until all sums due from the Buyers to the Sellers under this or any other Contract have been paid in full and prior to such payment in full the Buyers shall hold all such Goods as the Sellers’ fiduciary agent and bailee and shall, if so required by the Sellers, store all such Goods Separately from any other Goods in the Buyers’ possession, mark them clearly with the name and address of the Sellers and the fact that they are owned by the Sellers and deliver them up to the Sellers or their representatives on demand. The Buyers irrevocably authorise the Sellers and their representatives to enter upon any premises in the occupation or under the control of the Buyers at any time for the purposes of inspecting or removing any such Goods.
(d) Notwithstanding that any Goods may not have been paid for in full, the Buyers, as bailees for the Sellers and not otherwise shall have the power and right to sell such Goods and all proceeds of any such sale shall be retained by the Buyers (if so required by the Sellers in a separate bank or other account) and held by the Buyers on trust for the Sellers beneficially until all sums due from the Buyers to the Sellers under this or any other Contract have been paid in full.
(e) Where, for the purpose of producing the Goods, the Sellers provide, manufacture or adapt any machinery, tools, models, dies, moulds or other Equipment, the Buyers shall be invoiced and shall pay forthwith on receipt of invoice a sum representing a contribution towards the costs thereof, with GST, if applicable. Notwithstanding any such invoice or payment, the property in the Equipment shall vest and remain in the Sellers. Unless otherwise agreed in writing, ownership of and copyright in any designs, drawings or other documents (“Drawings”) relating to the Equipment or the Goods shall vest and remain in the Sellers. The Sellers are under no obligation to retain any item of the Equipment or any Drawings after the expiry of three years from the date of the last delivery of Goods to which such item or Drawings relate.
(f) The Buyers shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Sellers, but if the Buyers so do, all moneys owing by the Buyers to the Sellers shall (without prejudice to any other right or remedy of the Sellers) forthwith become due and payable.
7. In so far as no other specifications are given in the agreed DIN standards, factory standards and other documentation, the following tolerances shall be deemed to apply for all tubings and profiles with the exception of those made from silicone or other elastomers and of those made from foamed materials:
For profiles (where measurable):
width, height and diameter: DIN 16941 – 3A very approximate.
For insulating sleevings/special sizes:
Conforming to DIN 40621 “Insulating Sleeving B (Non-fibrous)”
Inner diameter: + 5% Wall thickness: + 10% For other tubing:
Inner diameter: up to 5mm +0.1/-0.2mm 5 – 8mm +0.2/-0.3mm over 8mm +2.5%/-3%
Wall thickness: up to 0.7mm +0.1/-0.1mm
0.7 – 1.5mm +0.15/-0.15mm over 1.5mm + 10%
With cut lengths the tolerances apply to the lengths measured at room
temperature immediately after production. For profiles: as per DIN 16941 – 3A, for bundles and coils: +2%
Shore A hardness values are subject to a tolerance range of + 3 for
thermoplastic and + 5 for elastomers. Normal discrepancies in terms of reject rates, weight and colour do not constitute grounds for claims. The illustrations, masses and weights appearing in the Sellers’ product lists, technical delivery specifications, factory standards, quotations and order confirmations are only approximate. Discrepancies in terms of mass, weight, number of pieces and quality are permissible within the bounds of normal tolerances or the relevant standards.
8. (a) Subject to the condition set out below the Sellers warrant that the Goods will correspond in all material respects with their specifications at the time of delivery and will be free from any material defects in materials and workmanship for a period of six months from delivery.
(b) The above warranty is given by the Sellers subject to the following conditions:
(i) The Sellers shall be under no liability in respect of any defect in the Goods arising from fair wear and tear, wilful damage, negligence, abnormal conditions, failure to follow the Sellers’ instruction (whether oral or in writing), misuse or alteration or repair of the Goods without the Sellers’ approval;
(ii) The Sellers shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total Price for the Goods has not been paid by the due date for payment;
(iii)The above warranty does not extend to parts, materials or equipment not manufactured by the Sellers, in respect of which the Buyers shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Sellers.
(c) Subject as expressly provided in these conditions, except where the Goods are sold to a person dealing as a consumer (within the meaning of the Consumer Guarantees Act 1993) all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
(d) The Buyers agree they are a business by the Consumer Guarantees Act 1993 and agree that they are acquiring all Goods from the Sellers for the purpose of a business and that the Consumer Guarantees Act 1993 does not apply. The Buyers agree, wherever legally possible to limit and (if possible) exclude liability under the Consumer Guarantees Act 1993 when they supply to a third party any Goods supplied to them by the Sellers. Where the provisions of the Consumer Guarantees Act 1993 apply, the warranty in clause 8 (a) and the limitations of liability in clauses 8 and 9 will be read subject to the application of the Consumer Guarantees Act 1993 and these terms and conditions, the provisions of the Consumers Guarantees Act 1993 will apply.
(e) Any claim by the Buyers which relates to the quantity of the Goods delivered shall be notified to the Sellers in writing within three days from the date of delivery and if the Buyers do not notify the Sellers accordingly the quantity stated to be delivered by the Sellers shall be deemed to be the quantity actually delivered.
(f) Any claim by the Buyers which is based on any defect in the quality or condition of the Goods or their failure to correspond with the specification shall (whether or not delivery is refused by the Buyers) be notified to the Sellers in writing within five days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyers do not notify the Sellers accordingly, the Buyers shall not be entitled to reject the Goods and the Sellers shall have no liability for such defect or failure, and the Buyers shall be bound to pay the Price as if the Goods had been delivered in accordance with the Contract.
(g) Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Sellers in accordance with these conditions, the Sellers shall be entitled to repair or replace the Goods (or the part in question) free of charge or, at the Sellers’ sole discretion, refund to the Buyers the Price of the Goods (or a proportionate part of the Price), but the Sellers shall have no further liability to the Buyers.
(h) The Sellers shall not be liable to the Buyers by reason of any representation, or any implied warranty, condition or any other term, or any duty at common law, or, under the express terms of the Contract, for any consequential loss or damage (whether for loss of profits or otherwise), cost, expenses or other claims or consequential compensation whatsoever (and whether caused by the negligence of the Sellers, its employees or agents or otherwise) which arise out of or in connection with the supply of Goods or their use or resale by the Buyers, except as expressly provided in these conditions.
9. (a) In no circumstances shall the Sellers be bound by or in any way liable for any representation made or any information or advice given to the Buyers or to any other person whatsoever by the Sellers or by any person who is or who is deemed by law to be an agent for the Sellers, whether such representation is made or information or advice is pursuance of this or any other Contract in any other way whatsoever.
(b) The Sellers shall in no circumstances be bound by or liable for any description, information or illustration contained in any catalogue, price list, brochure, leaflet or other document of any kind and nothing contained in any such document shall form part of this or any Contract between the Sellers and the Buyers.
(c) In placing an order for the Goods or any item thereof, the Buyers warrant that they have tested Goods of that description and specification and that such Goods are suitable for any purpose for which the Buyers require them.
(d) If the Sellers are ever liable to the Buyers, or any other person, and the Sellers cannot rely on the exclusions of representations, warranties or liabilities set out in these terms and conditions of sale, then the liability of the Sellers is in all cases limited to the amount of the Price.
10. (a) The Sellers shall be entitled to terminate this Contract upon the happening of any of the following events:
(i) Failure by the Buyers to pay any sum to the Sellers under the Contract on the due date.
(ii) Breach by the Buyers of any other condition of the Contract;
(iii) The Buyers suffering an execution to be levied on their Goods.
(iv) (Where the Buyers consist of one or more individuals), any such individual dying, entering into a composition or arrangement for the benefit of his creditors or having any order made in respect of him under the Insolvency Act 1967 or any Act amending or re-enacting the provision of the Act.
(v) (Where the Buyers consist of a body corporate), the Buyers having a receiver, an administrative receiver or administrator appointed or going into liquidation whether voluntary or compulsory.
(vi) The Buyers cease or threaten to cease to carry on their business.
(vii) The Sellers reasonably apprehend that any of the events mentioned above is about to occur in relation to the Buyers and notifies the Buyers accordingly.
(b) In the event of termination, the Sellers shall forthwith be discharged from any further performance of the Contract and the Buyers shall forthwith pay to the Sellers:
(j) all sums accrued due under the Contract.
(ii) the full Price of all Goods manufactured and in a deliverable state but not delivered at the date of termination.
(iii) in respect of any Goods ordered but not yet manufactured or in a deliverable state at the date of termination, a sum equivalent to the aggregate of the cost and expenses incurred by the Sellers in connection with or in contemplation of the manufacture of such Goods and the Sellers’ gross profit which would have been realised on the completion of the sale of such Goods to the Buyers. Any deposit paid to the Sellers, shall be forfeit to the Sellers, whether or not it exceeds the sums payable by the Buyers set out above and the Buyers shall forthwith and at their own expense deliver up to the Sellers all Goods in their possession or control in which title remains vested in the Sellers.
11. Where Goods are manufactured and supplied to the requirements of specifications of the Buyers, the Buyers shall indemnify the Sellers against all claims made against the Sellers in respect of any breach of any statutory requirement or the infringement of any copyright, patent or trade mark (whether registered or not).
12. Personal Property Securities Act 1999 (NZ) (“NZ PPSA”)
(1) By accepting delivery of any Goods, the Buyer acknowledges that this Agreement constitutes a security agreement for the purposes of the NZ PPSA. The Buyers grants to Seller a security interest in all Goods and their proceeds as security for full payment of the purchase price of all Goods and all other amounts payable by the Buyers to Seller (whether under this agreement or under the terms of any specific contract relating to the supply of Goods by Seller to the Buyers) and for the Buyers’ performance of all of its other obligations to Seller. In clauses (2) to (9) the following terms have the meaning given to them in the NZ PPSA, as applicable: financing change statement, financing statement, purchase money security interest, security interest and verification statement.
(2) The Buyers shall ensure that it is always able to identify:
(a) the Goods from any other goods that may be in the buyer's possession; and
(b) the particular Goods to which any invoice relates.
(3) Title to the goods shall remain in Seller until there are no longer any amounts owing to Seller by the Buyers.
(4) The Buyers agrees:
(a) at Seller's request, to promptly do all things (including signing any documents) and provide all assistance and information necessary to ensure that Seller has a perfected first ranking security interest in all Goods (and the proceeds of those Goods) supplied by Seller;
(b) do all things (including signing any documents) to ensure that the security interest is enforceable, perfected and otherwise effective and to enable Seller to exercise any powers in connection with the security interest; and
(c) that Seller may register a financing statement or financing change statement and do anything else required to perfect its security interest created by this document.
(5) Seller may allocate all amounts received from the Buyers in any manner it determines including any manner required to preserve any purchase money security interest in the Goods.
(6) If the Buyer fails to comply with any term of the contract or any other agreement between Seller and the Buyer, Seller or Seller's agent may, in addition to any other rights and remedies either of them may have at law (including under any statute), enter any land or building owned, occupied, or used by the buyer, to search for and re-take possession of the goods.
(7) When there are amounts owing by the buyer to Seller, the buyer shall, at the request of Seller, promptly provide a written inventory of any dealings with the goods, including details of those goods that have:
(a) been sold by the buyer;
(b) become an accession; or
(c) been so manufactured, processed, assembled, or commingled that their identity has been lost.
Where the buyer has previously provided an inventory to Seller any subsequent inventory need only include details of any dealings with the goods since the most recent inventory. If requested by Seller an inventory shall also include the amount and location of any proceeds that the buyer is at that time holding on trust for Seller.
(8) To the extent permitted by law, the Buyers waives its right to receive any verification statement (or notice of any verification statement) in respect of any financing statement or financing change statement relating to a security interest created by this document. The Buyers has no rights under the following sections of the NZ PPSA: ss 114(1)(a), 116, 117(1)(c),120(2), 121, 125, 126, 127, 129, 131, 133 and 134 of the NZ PPSA.
(9) The buyer acknowledges receipt of a copy of these Conditions of Sale and waives any right it may have to receive from Seller a copy of any financing statement, financing change statement or verification statement that is registered, issued, or received at any time in relation to the Agreement. The parties also agree not to disclose information of the kind that can be requested under section 275(1) of the NZ PPSA. The Buyer must do everything necessary on its part to ensure that section 275(6)(a) of the PPSA continues to apply.
(10) The Buyers agrees to indemnify Seller for any costs incurred by Seller under this clause.
13. This Contract is not assignable or transferable by the Buyers in whole or in part, except with the written consent of the Sellers.
14. No waiver by the Sellers of any breach of the Contract by the Buyers shall be considered as a waiver of any subsequent breach of the same or any other provision.
15. If any provision of these conditions is held by any competent authority to be invalid or unenforceable or whole or in part the validity of the other provisions of these conditions and the remainder of the provision in question shall not be affected thereby.
16. This Contract shall be construed in accordance with and governed in every respect by the laws of New Zealand and all actions arising out of or in connection with this agreement shall be brought in the Courts of New Zealand.