TERMS AND CONDITIONS OF SALE - REHAU LTD
CONDITIONS OF SALE
1. In these conditions
“Seller” shall mean REHAU Limited;
“Buyer” means the purchaser of the Goods Buyer whose name appears on the purchase order, or Order Confirmation issued by Seller or who order Goods through email or through Seller’s platform.
“Goods” shall mean the goods provided by the Seller to the Buyer from time to time.
“Price” shall mean the total price payable by the Buyer 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).
"Intellectual Property" means any designs, drawings, dies, tools, patterns, or other specifications unique to the Seller in relation to the Goods.
2. CONDITIONS OF SALE
2.1 Quotation. Any estimate or quotation given by the Seller is an invitation to treat only and is valid for a period of 30 days only (unless previously withdrawn by the Seller).
2.2 Contract. All Goods supplied by the Seller to the Buyer shall be subject to these conditions, which together with the order confirmation issued by Seller or the purchase order issued by the Buyer and accepted by Seller (if order confirmation is not issued) constitute the entire agreement (“Contract”) between the Seller and the Buyer, prevail over all statements, representations, catalogues, illustrations, marketing materials or communications of any kind whatsoever relevant to the Good supply contemplated thereunder. The parties agrees that these Conditions apply to each Purchase Order issued by Buyer.
2.3 Amendment. In the event these Conditions are amended, updated or varied, the Seller will publish the amended, updated or varied Conditions on the website of the Seller, inform the Buyer accordingly and the amended, updated or varied Conditions will apply to all further orders placed with the Seller by the Buyer.
2.4 Buyer’s Condition. No conditions submitted or referred to by the Buyer when accepting this offer or incorporated in any of the Buyer’ acceptance forms or standard terms and conditions of purchase or elsewhere shall form part of the Contract unless otherwise agreed in writing by the Seller and to the extent that any conditions submitted or referred to by the Buyer would otherwise form part of the Contract than the same shall be deemed to be waived.
2.5 Error. 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 Seller or displayed on Seller’s website shall to subject to correction without any liability on the part of the Seller.
3.1 The Goods are supplied at the Seller’ Price ruling at the date of receipt of the purchase order by the seller or confirmed by the seller.
3.2 In addition, if Goods are sold on DAP or CFR terms, any increase in the rate of freight or any other expenses of carriage or of insurance between the date of the Purchase Order and the date of dispatch of the Goods shall be paid by the Buyer without any right of cancellation. The Buyer acknowledges such variations are beyond the control of the Seller.
4.1 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 Buyer. The Buyer 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 Seller.
4.2 Failure to Pay. In the event of the Buyer failing to fulfil any terms of payment agreed with the Seller or if the Seller shall at any time have any doubts as to the solvency or financial responsibility of the Buyer the Seller 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 Seller prior to delivery of the Goods.
5.1 Delivery Time. If no time for delivery is specified in the Contract, the Buyer shall be bound to accept the Goods when they are ready for delivery by the Seller.
5.2 Delivery Place. Unless otherwise agreed in writing, the place of delivery of the Goods shall be the Seller’ premises specified in Seller’s order confirmation or email.
5.3 Deliver Quantity. The Seller shall have the right to deliver up to 20% more or less than the quantity ordered and the Price payable by the Buyer shall be increased or decreased pro rata.
5.4 Force Majeure. 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, epidemic, pandemic, 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 Seller or Seller’s manufacturer, the Seller shall inform the Buyer of such event accordingly, and to the extent impacted by such force majeure events, the Seller shall be exempted from any liabilities of failure to perform duties under the Contract including failure to deliver the Goods per the Contract. The Buyer 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 Seller are reasonably able to deliver the Goods, having regard to the Seller commitments to other customers. If, however, the delivery of any Goods is suspended or delayed for a period exceeding six months from the date when the Goods would otherwise have become due for delivery to the Buyer, 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.
5.5 Approximation. Any dates quoted for delivery of the Goods are approximate only and the Seller shall in no circumstances be liable to the Buyer 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 Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
6. GOODS DELIVERED
6.1 Buyer’s Risk. All Goods delivered to the Buyer shall be at the Buyer’ risk from the time of dispatch.
6.2 Risk Transfer. If the Seller 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 Buyer will insure the Goods accordingly and indemnify the Seller against any costs or expenses for transport.
6.3 Ownership. All Goods delivered to the Buyer shall remain in the legal and beneficial ownership of the Seller until all sums due from the Buyer to the Seller under this or any other Contract have been paid in full and prior to such payment in full the Buyer shall hold all such Goods as the Seller’ fiduciary agent and bailee and shall, if so required by the Seller, store all such Goods Separately from any other Goods in the Buyer’ possession, mark them clearly with the name and address of the Seller and the fact that they are owned by the Seller and deliver them up to the Seller or their representatives on demand. The Buyer irrevocably authorise the Seller and their representatives to enter upon any premises in the occupation or under the control of the Buyer at any time for the purposes of inspecting or removing any such Goods.
6.4 Bailee. Notwithstanding that any Goods may not have been paid for in full, the Buyer, as bailee for the Seller 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 Buyer (if so required by the Seller in a separate bank or other account) and held by the Buyer on trust for the Seller beneficially until all sums due from the Buyer to the Seller under this or any other Contract have been paid in full.
6.5 Equipment. Where, for the purpose of producing the Goods, the Seller provide, manufacture or adapt any machinery, tools, models, dies, moulds or other Equipment, the Buyer 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 Seller. 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 Seller. The Seller 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.
6.6 Pledge. The Buyer 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 Seller, but if the Buyer so do, all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
7.1 The Goods supplied hereunder are subject to the dimension tolerance set forth in Seller’s technical delivery specifications or industry standards or other applicable standards.
7.2 Normal discrepancies in terms of reject rates, weight and colour do not constitute grounds for claims. The illustrations, masses and weights appearing in the Seller’ 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.
8.1 Warranty. Subject to the condition set out below the Seller 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.
8.2 Warranty Conditions. The above warranty is given by the Seller subject to the following conditions:
(i) Warranty Exclusion. This warranty is subject to that the Goods are stored, installed and used pursuant to the corresponding technical delivery specifications/technical information on Seller’s website www.rehau.com/TI or https://www.myrehau.com. The Seller shall be under no liability in respect of any defect in the Goods arising from using on wrong application, improper installation, incorrect assembly, improper storage, fair wear and tear, wilful damage, negligence, abnormal conditions, Buyer’s further handling of the Goods including fabrication and installation, failure to follow the Seller’ instruction (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller’ approval; Buyer shall indemnify Seller from any and all claims, actions, demands, damages, losses, costs, charges, recoveries, judgments, penalties, liabilities and expenses (including, but not limited to, costs of litigation and/or reasonable attorney fees), by third parties (including Buyer's customers) arising out of, or in connection with the disputes between such third parties and Buyer which caused by Buyer's failure or negligence in performance or other reasons contributable by Buyer.
(ii) Subject to Payment. The Seller 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) Not Manufactured by Seller. The above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.
(iv) Tolerance. The warranty is subject to the dimension tolerance set forth in Seller’s technical delivery specifications, industry standards or other applicable standards.
(v) Performance Tolerance. The above warranty is subject to performance tolerance. Any performance figures given by the Seller are estimates only. The Seller is under no liability for damages for failure of the Goods to attain such figures unless specifically represented by the Seller to the Buyer in writing. Any such written representation is subject to the recognised tolerances applicable to such figures.
(vi) Commercial Variations. Normal commercial variations in terms of reject rates, finish, weight and colour shall not constitute grounds for claims, and no condition, warranty or stipulation is made in respect of the colour stability of plastics. The illustrations, masses and weights appearing in the Seller’ 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.
8.3 Consumer Guarantee. 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.
8.4 Not a Consumer. The Buyer agree they are not a business by the Consumer Guarantees Act 1993 and agree that they are acquiring all Goods from the Seller for the purpose of a business and that the Consumer Guarantees Act 1993 does not apply. The Buyer 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 Seller. 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.
8.5 Notice on Quantity. Any claim by the Buyer which relates to the quantity of the Goods delivered shall be notified to the Seller in writing within three days from the date of delivery and if the Buyer do not notify the Seller accordingly the quantity stated to be delivered by the Seller shall be deemed to be the quantity actually delivered.
8.6 Notice on Defect. Any claim by the Buyer 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 Buyer) be notified to the Seller 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 Buyer do not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the Price as if the Goods had been delivered in accordance with the Contract. Any claim must be submitted to the Seller together with the description of the quality issues, proof of purchase including date of purchase, evidence of the Products defects, photos of defective Products and other related supporting documents and may be sent to the Seller by post or email to the addresses set out below within the warranty period. Seller will conduct investigation within 60 days and respond to the Buyer accordingly. Each party will bear its own costs incurred in making and processing a claim.
Address: REHAU Limited,
60b Cryers Road, East Tamaki, Auckland 2013
General Line: 09 272 2264
Fax: 09 272 2265
8.7 Remedies. 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 Seller in accordance with these conditions, the Seller shall be entitled to repair or replace the Goods (or the part in question) free of charge or, at the Seller’ sole discretion, refund to the Buyer the Price of the Goods (or a proportionate part of the Price), and thereafter, to the extent permitted by law, the Seller shall have no further liability to the Buyer.
8.8 Consequential Damages. Except as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law. The Seller shall not be liable to the Buyer 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 special, incidental or consequential loss or damage (including but not limited to loss of profits or revenue, loss of business or opportunity, loss of use of products or other property/equipment, costs of substitute products or other parts, downtime costs, or claims of purchase or otherwise), other cost, expenses or other claims or any consequential compensation whatsoever (and whether caused by the negligence of the Seller, 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 Buyer, except as expressly provided in these conditions.
8.9 No Admission. Any measures undertaken by the Seller in investigating a claim or damage mitigation shall not constitute recognition or admission of liability. Seller reserves all rights to engage the services of qualified companies to perform any necessary remedial measures.
8.10 Further Disclaimer. To the fullest extent permitted by law, the Seller is not liable if (i) the Goods become unfit for a particular purpose which is not confirmed by the Seller, (ii) if it is unreasonable for the Buyer to rely on the Seller’s skill, judgement or statement.
9. LIMITATION OF LIABILITIES
9.1 Representation. In no circumstances shall the Seller be bound by or in any way liable for any representation made or any information or advice given to the Buyer or to any other person whatsoever by the Seller or by any person who is or who is deemed by law to be an agent for the Seller, whether such representation is made or information or advice is pursuance of this or any other Contract in any other way whatsoever.
9.2 Catalogue. The Seller 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 Seller and the Buyer.
9.3 Purpose. In placing an order for the Goods or any item thereof, the Buyer warrant that they accept or have tested Goods of that description and specification and that such Goods are suitable for any purpose for which the Buyer require them.
9.4 Damages. The Seller is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the Goods by Buyer, Buyer’s customers, end users and other parties
9.5 Aggregate Liability. If the Seller are ever liable to the Buyer, or any other person, Seller’s aggregate liability to Buyer for any and all direct, special, indirect, exemplary, punitive, incidental or consequential damages connected with or resulting from the Goods or services provided or to be provided by Seller, from performance or non-performance of this contract or any other documents executed in connection thereto, or arising at law or in any other way arising, including without limitation, damages or claims in the nature of removal costs, restoration expenses, field repairs, loss of revenue, loss of income or profits, loss of use, loss of opportunity, loss of business, or cost of capital, shall not exceed the amount of the Price paid for the goods in question.
The provisions of this Clause 9 apply to the fullest extent permitted by law.
10.1 The Seller shall be entitled to terminate this Contract upon the happening of any of the following events:
(i) Failure by the Buyer to pay any sum to the Seller under the Contract on the due date.
(ii) Breach by the Buyer of any other condition of the Contract;
(iii) The Buyer suffering an execution to be levied on their Goods.
(iv) (Where the Buyer 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 Buyer consist of a body corporate), the Buyer having a receiver, an administrative receiver or administrator appointed or going into liquidation whether voluntary or compulsory.
(vi) The Buyer cease or threaten to cease to carry on their business.
(vii) The Seller reasonably apprehend that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
10.2 Effect of Termination. In the event of termination, the Seller shall forthwith be discharged from any further performance of the Contract and the Buyer shall forthwith pay to the Seller:
(i) 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 Seller in connection with or in contemplation of the manufacture of such Goods and the Seller’ gross profit which would have been realised on the completion of the sale of such Goods to the Buyer. Any deposit paid to the Seller, shall be forfeit to the Seller, whether or not it exceeds the sums payable by the Buyer set out above and the Buyer shall forthwith and at their own expense deliver up to the Seller all Goods in their possession or control in which title remains vested in the Seller.
11. BUYER’ INDEMNITY.
Where Goods are manufactured and supplied to the requirements of specifications of the Buyer, the Buyer shall indemnify the Seller against all claims made against the Seller 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”)
12.1 By accepting delivery of any Goods, the Buyer acknowledges that this Agreement constitutes a security agreement for the purposes of the NZ PPSA. The Buyer 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 Buyer to Seller (whether under this agreement or under the terms of any specific contract relating to the supply of Goods by Seller to the Buyer) and for the Buyer’ 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.
12.2 The Buyer 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.
12.3 Title to the goods shall remain in Seller until there are no longer any amounts owing to Seller by the Buyer.
12.4 The Buyer 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.
12.5 Seller may allocate all amounts received from the Buyer in any manner it determines including any manner required to preserve any purchase money security interest in the Goods.
12.6 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.
12.7 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.
12.8 To the extent permitted by law, the Buyer 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 Buyer 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.
12.9 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.
12.10 The Buyer agrees to indemnify Seller for any costs incurred by Seller under this clause.
13. SELLER’S PROPERTY
13.1 Equipment. Any dies, tools, patterns and other equipment (collectively known as “the equipment‟) used in the manufacture or production of the Goods, which the Seller makes or obtains in order to produce the Goods, shall unless otherwise stated, remain the Seller’s property. If the Seller does not use the equipment for a three (3) year period, then the Seller is entitled to dispose of that equipment.
13.2 Intellectual Property. The supply of Goods from the Seller to the Buyer does not constitute a transfer of any rights in the Intellectual Property, or any part thereof. The Buyer must not do anything which is inconsistent with, or in infringement of such Intellectual Property rights. The Seller does not warrant that the supply by it and the use of the Goods by the Buyer does not and will not infringe the intellectual property rights of any third party.
14. BUYER’S PROPERTY
14.1 Buyer’s Risk. Any property of the Buyer under the Seller’s possession, custody or control is completely at the Buyer’s risk in relation to loss or damage caused to the property.
14.2 Storage Charge. The Seller reserves the right to make a reasonable charge for storage if delivery instructions of Buyer’s property are not provided by the Buyer within fourteen (14) days of a request by the Seller for such instructions. Seller may charge for storage from the first day after the Seller requests the Buyer to provide delivery instructions.
15. GENERAL PROVISIONS
15.1 Assignment. This Contract is not assignable or transferable by the Buyer in whole or in part, except with the written consent of the Seller.
15.2 Waiver. No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
15.3 Severability. The whole or any part of a clause of these Conditions shall be capable of severance without affecting the rest of these Conditions. If any provision of these Conditions shall be held to be invalid, illegal, or unenforceable under any statute, regulation, ordinance, executive order, or other rule of law, that provision shall be deemed severed to the extent necessary to comply with such statute, regulation, ordinance, order, or rule, and the parties shall negotiate in good faith to arrive at an alternative replacement provision approximating the parties' original business objective. The remaining provisions hereof shall remain in effect. The article, section, and/or paragraph headings herein are used for convenience of reference only and shall not be deemed a part of this contract for any purpose.
15.4 Governing Law. 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.