FILTERCORP INTERNATIONAL LIMITED
STANDARD TERMS AND CONDITIONS OF SALE (INTERNATIONAL SALES)
By making an order for Goods or Services, the Customer acknowledges and agrees that:
(a) All Goods and Services are provided subject to, and will be governed by, these Terms;
(b) These Terms will apply to the exclusion of any other terms and conditions that may appear on any purchase order or other document of the Customer from time to time;
(c) Any special terms specified by Filtercorp in any order, quote or other written document will prevail over these Terms to the extent of any inconsistency
In these Terms:
- “Filtercorp” means Filtercorp International Limited;
- “Force Majeure” means inability to obtain supplies or labour, industrial disputes, delays, act of God, fire, flood, storm, adverse weather conditions, or other matters beyond Filtercorp’s reasonable control;
- “Goods” means all products or other goods that Filtercorp may agree to supply to the Customer from time to time;
- "Services" means all services that Filtercorp may agree to supply to the Customer from time to time (including any designs, drawings, specifications or plans created or prepared by Filtercorp (or by a third party engaged by Filtercorp));
- “Terms” means these Standard Terms of Trade (International Sales) together with any special conditions specified by Filtercorp in any order, quotation, contract note or any other written document; and
- “Working Day” means a day other than a Saturday or Sunday, or a statutory public holiday in Auckland, New Zealand.
No quotation for Goods and/or Services given by Filtercorp will be valid unless the Customer accepts it by placing an order for the relevant Goods and Services within 10 Working Days from the date it is given, unless otherwise agreed in writing by Filtercorp. Filtercorp may withdraw or modify any quotation given by it at any time before acceptance by the Customer. No quotation will be binding on Filtercorp if such quotation was given based on incomplete, inaccurate or misleading information provided by the Customer.
(a) The prices for the Goods and Services will be the prices as specified in a binding quotation and Filtercorp may require a deposit as a condition of accepting the Customer's order. If no binding quotation is in place, the prices will be as notified by Filtercorp to the Customer from time to time in writing.
(b) Filtercorp reserves the right to vary the price for the Goods and Services at any time by giving written notice to the Customer, to reflect changes in exchange rates, materials, delivery, freight costs, costs of labour, or other costs incurred by Filtercorp that are outside of its control.
(c) Pricing errors may be corrected at any time
5. Ordering Procedure
(a) The Customer will place orders for the Goods and/or Services with Filtercorp. Each order will be in writing, will be in a format approved by Filtercorp, will be sent by facsimile, email or other electronic means approved by Filtercorp and will specify:
(i) the date of the order; and
(ii) the volume and type of Goods and/or Services ordered.
(b) Any verbal order for Goods and Services received from a Customer will be at the Customer’s risk.
(c) Filtercorp is not obliged to accept any order received from the Customer and may refuse to do so without being obliged to state a reason. Filtercorp may, without any liability on Filtercorp’s part, cancel any order for Goods and/or Services before pickup of the Goods by the Customer or performance of the Services.
6. No cancellation by customer
On the placing of an order for the Goods and/or Services by the Customer with Filtercorp, a binding contract to supply such Goods will exist, and the Customer may not cancel such order without Filtercorp’s written consent.
7. Invoicing and payment
1. Unless otherwise specified by Filtercorp in writing, the terms of payment for the Goods and/or Services will be as follows:
(a) Filtercorp will issue an invoice to the Customer for the Goods and/or Services on or about the date the Goods are ready for pickup from the premises of Filtercorp or its agent; and
(b) the Customer must pay the invoiced price in full by no later than 30 days following the date of issue of such invoice.
1. All sums due to Filtercorp under these Terms:
(a) are exclusive of any sales tax or value added tax which, where applicable, will be payable by the Customer to Filtercorp in addition on the rendering by Filtercorp of an appropriate tax invoice;
(b) will be paid in such currency as designated by Filtercorp to the credit of a bank account to be designated in writing by Filtercorp unless otherwise agreed by Filtercorp; and
(c) will be paid in cleared funds without deduction or set-off of any kind and by the due date, failing which:
(i) Filtercorp may charge interest on any outstanding amount on a daily basis at an annual rate equivalent to the rate being Filtercorp’s banker’s standard annual interest rate for commercial overdrafts plus 5%, from the due date until the date of actual payment; and
(ii) if Filtercorp incurs any costs or expenses by reason of the Customer’s failure to pay any amount required to be paid by it to Filtercorp by the due date, the Customer will reimburse Filtercorp for all costs and expenses that Filtercorp incurs in connection with any actions or proceedings for recovery of such amounts, including all reasonable accounting costs, legal costs (on a solicitor and own client basis), court costs and debt collection costs.
8. Payment Terms
(a) Unless otherwise specified by Filtercorp in writing, Filtercorp will make the Goods available for pickup during normal business hours from the premises of Filtercorp or its agent. Filtercorp will notify the Customer when the Goods are ready for pickup. The Customer must arrange for pickup of the Goods within 5 Working Days of being notified that they are ready for pickup. The Customer will pay all freight, shipping, insurance and customs costs and charges associated with pickup of the Goods and delivery of them to the Customer.
(b) Any projected pickup times given by Filtercorp will be estimates only, and Filtercorp will not be liable to the Customer for any delay in making the Goods available for pickup or performance of Services. For the avoidance of doubt, time for making the Goods available for pickup will not be of the essence.
(c) In the event of any delay by the Customer in picking up the Goods, Filtercorp will be entitled to charge the Customer for its reasonable costs incurred in storing the Goods
In the event of an alleged shortfall in any Goods picked up, the Customer will submit a written claim to Filtercorp within seven of the date of receipt by the Customer. In the absence of such a written claim from the Customer, the Goods will be deemed to have been supplied in accordance with these Terms. In no event will the Customer be entitled to refuse to accept any order by reason only of a shortfall.
Filtercorp will not be liable for any failure to perform its obligations under these Terms due to an event of Force Majeure. Filtercorp may cancel an order if the cost to Filtercorp of supplying any Goods and/or Services is increased materially as a result of such Force Majeure and the parties cannot agree on how the additional cost is to be borne.
11. Force Majeure
1. Unless otherwise specified by Filtercorp in writing, risk in the Goods will pass to the Customer once they are loaded onto the Customer’s carrier at the premises of Filtercorp or its agent. However, title in the Goods will not pass to the Customer until such time as all Goods supplied to the Customer by Filtercorp have been paid for in full. Until such title passes:
(a) The Customer shall hold the Goods as bailee for and on behalf of Filtercorp and will keep the Goods clearly labelled as the goods of Filtercorp in a separate part of the Customer’s premises;
(b) Either party can initiate the dispute resolution process by giving written notice of the dispute to the other party (“Dispute Notice”). Upon the other party receiving the Dispute Notice, the parties will work together in good faith to resolve the dispute. Pending resolution of the dispute each party will, to the extent it is able, will continue to perform its obligations under these Terms.
(c) If the parties cannot resolve the dispute by negotiation within 14 Working Days following the date of delivery of the Dispute Notice, then either party may, by written notice to the other party (“Mediation Notice”), require the dispute to be submitted to mediation in New Zealand in accordance with the provisions of the then current Resolution Institute Standard Mediation Agreement (NZ Version) (“Mediation”).
(d) The Mediation will be conducted by a mediator and at a fee agreed by the parties. If the parties fail to agree such matters within 14 Working Days following the date of delivery of the Mediation Notice, the Chair for the time being of Resolution Institute will select the mediator and determine the mediator’s fee. The parties will share equally the cost of the mediator’s fee.
(e) If the parties cannot resolve the dispute within 14 Working Days after commencement of the Mediation, the dispute will, if either party elects (by written notice to the other party), be determined by arbitration by one arbitrator under the Arbitration Act 1996 (NZ).
(f) Nothing in this clause 25 will prevent either party, at any time, from seeking any urgent interlocutory relief from a court of competent jurisdiction in relation to any matter that arises under these Terms.
12. Risk and Title
13. RISK AND TITLE
(a) These Terms embody the entire agreement of the parties in relation to the subject matter of these Terms and supersede all prior understandings, communications and representations between the parties, whether oral or written and where the Customer is in trade, the Customer and Filtercorp agree that sections 9, 12A and 13 of the Fair Trading Act 1986 are expressly excluded.
(b) The Customer may not assign, transfer, sub-license or sub-contract any of its rights or obligations under these Terms, without first obtaining the written consent of Filtercorp.
(c) No amendment to these Terms will be effective unless in writing and signed by an authorised representative of Filtercorp.
(d) Every notice or other communication given under or in connection with these Terms will be in writing and addressed to the relevant party and delivered, posted by pre-paid registered mail, or sent by facsimile or email to the addresses stated on the Customer's account application (unless a party has subsequently notified the other party in writing of a new address).
(e) The Customer authorises Filtercorp and its representatives (in terms of the Privacy Act 1993) to make enquiries to assess the Customer's creditworthiness. The Customer acknowledges that credit information about the Customer may also be disclosed to credit reporting agencies and/or solicitors for the purposes of recovering any amount owing by the Customer or taking enforcement action against the Customer.
(f) These Terms will be governed and construed in accordance with the laws of New Zealand and each of the parties submit to the non-exclusive jurisdiction of the New Zealand courts.
(g) The United Nations Convention on Contracts for the International Sale of Goods will not apply to the supply of any Goods under these Terms.