FILTERCORP INTERNATIONAL LIMIIIITED
STANDARD TERMS AND CONDITIONS OF SALE (NZ SALES)
The Customer acknowledges that:
(a) all Goods are provided subject to, and will be governed by, these Conditions; and
(b) these Conditions will apply to the exclusion of any other terms and conditions that may appear on any purchase order of the Customer from time to time.
In these Conditions:
“Conditions” means these Standard Terms and Conditions of Sale (NZ Sales);
“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; and
“PPSA” means the Personal Property Securities Act 1999 (including any amendments to that legislation).
No quotation for Goods given by Filtercorp will be valid unless the Customer accepts it by placing an order for the relevant Goods within 14 days from the date it is given, unless otherwise agreed in writing by Filtercorp. All quotations are exclusive of freight and insurance charges, unless otherwise specified in the quotation. Filtercorp may withdraw 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 will be the prices as specified in a binding quotation. 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) All prices are in New Zealand dollars unless otherwise specified.
(c) Filtercorp reserves the right to vary the price for the Goods 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.
(d) Pricing errors may be corrected at any time.
5. Ordering Procedure
(a) The Customer will place orders for the Goods 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;
(ii) the volume and type of Goods ordered; and
(iii) the address for delivery in New Zealand.
(b) Any verbal order for the Goods 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 before delivery of the Goods.
6. No cancellation by customer
On the placing of an order for the Goods 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
Unless otherwise specified by Filtercorp in writing, the terms of payment for the Goods will be as follows:
(a) Filtercorp will issue an invoice to the Customer for the Goods on or about the date of delivery; and
(b) the Customer must pay the invoiced price in full by no later than 20th day following the month of issue of such invoice.
All sums due to Filtercorp under these Conditions:
(a) are exclusive of any GST, 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 New Zealand dollars 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, attorney costs (on a solicitor and own client basis), court costs and debt collection costs.
8. Payment Terms
(a) Filtercorp will deliver the Goods to the address for delivery in New Zealand specified in the Customer’s order. The Customer will pay all freight and insurance costs associated with such delivery, unless the parties have agreed in writing that Filtercorp will pay such costs.
(b) Any delivery times given by Filtercorp will be estimates only, and Filtercorp will not be liable to the Customer for any delay in the delivery of the Goods. For the avoidance of doubt, time for delivery of the Goods will not be of the essence.
(c) In the event of any delay by the Customer in taking delivery of 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 delivered, 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 Conditions. 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 the contract or any part of it due to and event of Force Majeure. Filtercorp may cancel an order if the cost to Filtercorp of supplying any Goods 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
Risk in the Goods will pass to the Customer once they are delivered to the Customer. 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 will keep the Goods clearly labelled as the goods of Filtercorp in a separate part of the Customer’s premises;
(b) the Customer will only sell or dispose of the Goods in the ordinary course of the Customer’s business and will hold the proceeds of such sale or disposal in a separate account on trust for Filtercorp; and
(c) Filtercorp may at any time require the Goods to be returned to it at the Customer’s cost, and will be entitled to enter the premises of the Customer or any other place where the Goods are situated at any time in order to take possession of them, and the Customer will indemnify Filtercorp against any claim or demand that may be brought in relation to such entry and taking of possession.
12. Risk and Title
(a) The Customer acknowledges that clause 12 is a Security Agreement that creates a Security Interest in the Goods. The Customer agrees that such Security Interest is taken in all present and after-acquired Goods supplied by Filtercorp to the Customer from time to time and in the Proceeds, as security for all amounts payable by the Customer to Filtercorp, (including, without limitation, amounts owed in respect of Goods supplied and credit facilities provided by Filtercorp to the Customer from time to time).
(b) The Customer:
(i) will, upon request, promptly give Filtercorp all assistance and information (which the Customer warrants will be complete, accurate and up to date in all respects) as may be necessary to enable Filtercorp to register a Financing Statement, and to meet all other requirements under the PPSA in respect of the Goods (including, without limitation, executing any variations to these Conditions as may be reasonably requested by Filtercorp) to ensure that the Security Interest constitutes a Perfected Security Interest; and
(ii) agrees to Filtercorp registering a Financing Statement to protect its Security Interest under these Conditions and waives its right to receive a verification of such Financing Statement.
(c) For the avoidance of doubt, the terms “Security Agreement”, “Security Interest”, “Perfected”, “Financing Statement” and “Proceeds” set out in this clause 13 will have the meaning set out in the PPSA.
(a) The Customer acknowledges that Filtercorp owns or is the licensee of various intellectual property rights in or to some or all of the Goods (“Intellectual Property Rights”). The Customer agrees not to claim any right, title or interest in or to the Intellectual Property Rights, nor to copy, reproduce, or reverse engineer any Goods the subject of any such Intellectual Property Rights, without Filtercorp’s prior written consent.
(b) Copyright in all drawings, designs, specifications and plans created or prepared by Filtercorp for the Customer will remain with Filtercorp.
14. Intellectual Property Rights
Filtercorp warrants that all Goods supplied to the Customer will, for the applicable warranty period from the date of delivery notified by Filtercorp to the Customer in writing, be of merchantable quality and free from manufacturing defects (unless expressly stated otherwise by Filtercorp). If no such warranty period is notified, the warranty period will be 12 months.
No warranty is given for Goods that are rendered not of merchantable quality or not free from manufacturing defects, as a result of any of the following:
(a) use, installation, modification or alteration of the Goods other than as recommended or authorised in writing by Filtercorp;
(b) improper storage of the Goods by the Customer, its employees or contractors;
(c) damage or defects caused by fire or excessive heat; or
(d) physical damage caused to the Goods following delivery.
16. Exclusion of Warranty
Any attempt by any person to repair any Goods without the prior written authorisation of Filtercorp will invalidate the warranties in clause 15.
17. Invalidation of Warranties
The Customer’s sole remedy against Filtercorp for any Goods that do not comply with the warranties in clause 15 will be (at the option and cost of Filtercorp) for Filtercorp to repair or replace such Goods, or give to the Customer a full credit or refund for such defective Goods provided that:
(a) if requested by Filtercorp, the Customer first returns the defective Goods to Filtercorp to be examined, and gives Filtercorp the opportunity to investigate the alleged defect; and
(b) the Customer must notify Filtercorp in writing of the relevant defect within the applicable warranty period for the Goods notified by Filtercorp to the Customer in writing, and no later than seven days following the date the Customer first became aware of the defect.
The Customer agrees and acknowledges that the Goods are supplied to it for business purposes only.
19. Business Purposes
The Customer acknowledges that except as expressly provided in these Conditions, Filtercorp gives no warranties in relation to the Goods, either express or implied, including but not limited to any implied warranties relating to quality, fitness for any particular purpose or ability to achieve a particular result. All statements, technical information and recommendations about the Goods are believed to be reliable, but do not constitute a guarantee or warranty.
20. No Implied Warranties
In no event will Filtercorp be liable (whether in contract, tort, negligence or in any other way) to the Customer for:
(a) loss of revenue or profit, loss of anticipated savings, loss of goodwill or opportunity, loss of production, loss or corruption of data or wasted management or staff time; or
(b) loss, damage, cost or expense of any kind whatsoever that is indirect, consequential, or of a special nature, arising directly or indirectly from any Goods supplied by Filtercorp to the Customer, even if Filtercorp had been advised of the possibility of such damages, and even if such loss, damage, cost or expense was reasonably foreseeable by it.
21. Consequential Loss
In no event will Filtercorp’s total liability under any claim of whatever nature arising directly or indirectly from the Goods supplied by Filtercorp to the Customer exceed the price paid by the Customer for the specific Goods to which the relevant claim relates.
22. Maximum Liability
None of the exclusions or limitations set out in these Conditions will have the effect of limiting or excluding any form of liability where such liability cannot be so limited or excluded under applicable law.
The Customer will indemnify Filtercorp from and against any and all liability, loss, damage and expense incurred by Filtercorp arising out of or attributable to the Goods following the date of delivery (including, in particular, use of the Goods by any person), except where such liability, loss, damage and expense arose as a result of breach by Filtercorp of any of its warranties or other obligations under these Conditions.
(a) If a dispute arises under these Conditions, the parties will attempt to resolve the dispute using the dispute resolution process set out below.
(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 Conditions.
(c) If the parties cannot resolve the dispute by negotiation within 20 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 LEADR New Zealand Incorporated Standard Mediation Agreement (“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 20 days following the date of delivery of the Mediation Notice, the Chair for the time being of LEADR New Zealand Incorporated 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 20 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 Conditions
(a) These Conditions embody the entire agreement of the parties in relation to the subject matter of these Conditions and supersede all prior understandings, communications and representations between the parties, whether oral or written.
(b) The Customer may not assign, transfer, sub-license or sub-contract any of its rights or obligations under these Conditions, without first obtaining the written consent of Filtercorp.
(c) No amendment to these Conditions will be effective unless in writing and signed by an authorised representative of Filtercorp.
(d) These Conditions will be governed by the laws of New Zealand and will be subject to the non-exclusive jurisdiction of the New Zealand courts.