Rorisons a RMD Limited – Terms & Conditions of Sale

These Terms of Sale and any additional terms on any sale or delivery note, receipt, invoice or other relevant document prepared by the Company in relation to any Sale apply to the sale of Goods or Services from the Company, whether such sale is completed by written agreement, electronic record or oral communication unless stated otherwise by the Company.

1.              Definitions

1.1.           “Company” shall mean Rorisons RMD Limited its successors and assigns or any person acting on behalf of and with the authority of Rorisons RMD Limited.

1.2.           “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by the Company to the Client.

1.3.           “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.

1.4.           “Goods” shall mean Goods and Services supplied by the Company to the Client and includes Goods and Services described on any invoices, quotation, work authorisation or any other forms as provided by the Company to the Client.

1.5.           “Price” shall mean the price payable for the Goods as agreed between the Company and the Client in accordance with clause 3 of this contract.

2.              Acceptance and Application

2.1.           The Client and the Company acknowledge these terms constitute a Security Agreement as defined by the Personal Property Securities Act 1999 (PPSA). For the purposes of the PPSA Collateral shall include all Goods and Services and the proceeds thereof. The Client agrees not to allow any person to file a finance statement over any of the Collateral secured by this Security Agreement without the prior knowledge of the Company.

2.2.           Any instructions received by the Company from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by the Company shall constitute acceptance of the terms and conditions contained herein.

2.3.           Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.

2.4.           Upon receipt of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of the Company.

2.5.           The Client shall give the Company not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by the Company as a result of the Client’s failure to comply with this clause.

2.6.           These Terms of Trade for the supply of goods and services shall prevail and take precedence over the Client’s standard or special terms for the contracting of all goods and services from the Company, including any terms that may be printed on any order or other writing that may be issued by the Client to the Company for the arrangement of supply. In the case of any conflict between these Terms of Trade and the Client’s confirmation of this Agreement or any other document supplied by the Client, these Terms of Trade shall prevail.

3.              Price and Payment

3.1.           At the Company’s sole discretion the Price shall be either;

(a)         as indicated on invoices provided by the Company to the Client in respect of Goods supplied  or

(b)         the Company’s quoted Price (subject to clause 3.2) which shall be binding upon the Company provided  the Client shall accept the Company’s quotation by placing an order within thirty (30) days.

3.2.           The Company reserves the right to change the Price in the event of a variation to the Company’s quotation.

3.3.           At the Company’s sole discretion a deposit may be required.

3.4.           Unless the Company specifies otherwise, the purchase price and any commission and associated charges, plus GST, must be paid by the Client by the 20th of the month following purchase, as stated on the invoice. If no time is stated on the invoice then payment shall be due seven (7) days following the date of the invoice.

3.5.           GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

4.              Default & Consequences Of Default

4.1.           Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 3% per calendar month and such interest shall compound monthly at such a rate until full settlement is made.

4.2.           The Client will pay the Company, on demand, all costs (including legal costs on a solicitor/client basis) incurred by the Company in connection with any default by the Client.

4.3.           Without prejudice to any other remedies the Company may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Company may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. The Company will not be liable to the Client for any loss or damage the Client suffers because the Company has exercised its rights under this clause.

4.4.           Without prejudice to the Company’s other remedies at law the Company shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Company shall, whether or not due for payment, become immediately payable in the event that:

(a)         any money payable to the Company becomes overdue, or in the Company’s opinion the Client will be unable to meet any payments as they fall due; or

(b)         the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

(c)         a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

4.5.           Where the Client has left any Goods with the Company to perform any service in relation to those Goods and the Company has not received or been tendered the whole of the Price, or the payment has been dishonoured, the Company shall have a lien on the Goods, the right to retain the Goods for the Price while the Company is in possession of the Goods and a right to sell the Goods.

4.6.           The lien of the Company shall continue despite the commencement of proceedings, or judgement for the Price having been obtained.

5.              Delivery Of Goods

5.1.           At the Company’s sole discretion, delivery of the Goods shall take place when the Client or the Client’s nominated carrier, takes possession of the Goods or in the event that the Goods are delivered by the Company or the Company’s nominated carrier, the Goods are delivered to the Client’s nominated address.

5.2.           The costs of delivery will be included in the Company’s price to the Client, or if the Client arranges delivery, the Client will be charged direct by their nominated carrier.

5.3.           The Client shall make all arrangments necessary to take delivery of the Goods whenever they are tendered for delivery. In the event the Client is unable to take delivery of the Goods as arranged the Company shall be entitled to charge a reasonable fee for redelivery.

5.4.           Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.

5.5.           The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.

5.6.           The Client shall take delivery of the Goods tendered notwithstanding that the quantity delivered shall be either greater or lesser than the quantity purchased provided that such discrepancy shall not exceed 5% and the Price shall be adjusted pro rata to the discrepancy.

5.7.           The failure of the Company to deliver shall not entitle either party to treat this contract as repudiated.

5.8.           The Company shall not be liable for any loss or damage which may occur due to a failure by the Company to deliver the Goods (or any of them) promptly or at all.

5.9.           The Company reserves the right to amend or cancel deliveries due to weather conditions or other unforeseen circumstances.

6.              Risk

6.1.           If the Company retains ownership of the Goods all risk for the Goods passes to the Client on delivery.

6.2.           If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, the Company is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Company is sufficient evidence of the Company’s rights to receive the insurance proceeds without the need for any person dealing with the Company to make further enquiries.

7.              Title

7.1.           The Company and the Client agree that ownership of the Goods shall not pass until

(a)          the Client has paid the Company all amounts owing for the particular Goods; and

(b)          the Client has met all other obligations due by the Client to the Company in respect of all contracts between the Company and the Client.

7.2.           Receipt by the Company of any form of payment other than cash shall not be deemed to be payment until that

form of payment has been honoured, cleared or recognised and until then the Company’s ownership or rights in respect of the Goods shall continue.

7.3.           It is further agreed, until ownership passes to the Client:

(a)            where practicable the Goods shall be kept separate and identifiable until the Company shall have received payment and all other obligations of the Client are met; and

(b)            the Company may give notice in writing to the Client to return the Goods or any of them to the Company. Upon such notice being given the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and

(c)            the Client is only a bailee of the Goods and until such time as the Company has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods on trust for the Company; and

(d)            until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that the Company will be the owner of the end products; and

(e)            if the Client fails to return the Goods to the Company then the Company or the Company’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Goods are situated as the invitee of the Client and take possession of the Goods, and the Company will not be liable for any reasonable loss or damage suffered as a result of any action by the Company under this clause; and

(f)            the Client must insure the Goods against loss or damage with an insurance company of repute; and

(g)            the Client must keep the Goods free from any other Security Interest, charge, lien or other encumbrance.

8.              Client’s Disclaimer

8.1.           The Client hereby disclaims any right to rescind, or cancel any contract with the Company or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by the Company and the Client acknowledges the Goods are bought relying solely upon the Client’s skill and judgment.

9.              Error and Omissions

9.1.           The Client shall inspect the Goods on delivery and shall within 48 hours of delivery notify the Company of any alleged defect, shortage in quantity, errors, omissions or failure to comply with the description or quote. The Client shall afford the Company an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions, the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.

9.2.           For defective Goods, which the Company has agreed in writing that the Client is entitled to reject, the Company’s liability is limited to either (at the Company’s discretion) replacing the Goods or rectifying the Goods provided that the Client has complied with the provisions of clause 9.1.

10.            Returns

10.1.         Returns will only be accepted provided that:

(a)            the Company has agreed in writing to accept the return of the Goods; noting that the Company shall have no obligation to accept the return of the Goods, and

(b)            the Goods are returned at the Client’s cost within seven (7) days of the delivery date; and

(c)            the Company will not be liable for Goods which have not been stored or used in a proper manner; and

(d)            the Goods are returned in the condition in which they were delivered.

10.2.         Returned Goods may at the Company’s sole discretion, incur restocking and handling fees.

11.            Warranty

11.1.         To the extent permitted by statute, no warranty is given by the Company as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. The Company shall not be responsible for any loss or damage to the Goods, or caused by the Goods, however arising.

12.            Consumer Guarantees Act 1993

12.1.         The Client agrees that where all Goods are acquired for the purposes of a business the Consumer Guarantees Act 1993 will not apply.

13.            Personal Property Securities Act 1999 (PPSA)

13.1.         The Client acknowledges that:

(a)            These terms are a Security Agreement for purposes of section 36 of the PPSA, and

(b)            A security interest is taken in all Goods previously supplied by the Company to the Client and in all and any Goods that will be supplied in the future by the Company to the Client during the continuance of the parties relationships.

(c)            The Security Agreement is a continuing security and will operate irrespective of any intervening payment or settlement of account until the Client has signed a release. The security interest granted in the Collateral has the same priority in relation to all and any Goods supplied to the Client by the Company at any time.

13.2.         The Client shall inform its creditors of these terms including that the Company may create and register a Purchase Money Security Interest over the Goods under the PPSA and the Client agrees to waive the right to receive a verification statement for purposes of S.148 of the Act and shall also inform any Trustee in Bankruptcy or Liquidator of the Client or any Receiver of the Client’s business or assets of the rights of the Company and title to the proceeds of sale.

13.3.         To the extent permitted by law, the Client and the Company contract out of section 114(1)(a) of the PPSA and the Client’s rights referred to in sections 107(2)(c), (d), (h) and (i) of the PPSA.

13.4.         The Client shall pay on demand all costs and expenses incurred by the Company in exercising its rights under the PPSA.

14.            Cancellation

14.1.         The Company may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice the Company shall repay to the Client any sums paid in respect of the Price. The Company shall not be liable for any loss or damage whatever arising from such cancellation.

14.2.         In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by the Company (including, but not limited to, any loss of profits) up to the time of cancellation.

15.            Privacy Act 2020

15.1.         The Client and the Guarantor/s (if separate to the Client) authorises the Company to:

(a)            call, retain and use any information about the Client, for the purpose of assessing the Client’s creditworthiness or marketing products and services to the Client; and

(b)            disclose information about the Client, whether collected by the Company from the Client directly or obtained by the Company from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.

15.2.         Where the Client and/or Guarantors are an individual the authorities under clause 16.1 are  authorities or consents for the purposes of the Privacy Act 2020.

15.3.         The Client and/or Guarantors shall have the right to request the Company for a copy of the information about the Client and/or Guarantors retained by the Company and the right to request the Company to correct any incorrect information about the Client and/or Guarantors held by the Company.

16.            General

16.1.         If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

16.2.         These terms and conditions and any contract to which they apply shall be governed by the laws of  New Zealand and are subject to the jurisdiction of the courts of New Zealand.

16.3.         The Company shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Company of these terms and conditions.

16.4.         In the event of any breach of this contract by the Company the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.

16.5.         The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by the Company.

16.6.         The Company may license or sub‑contract all or any part of its rights and obligations without the Client’s consent.

16.7.         The Company reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Company notifies the Client of such change.

16.8.         Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock‑out, industrial action, earthquake, fire, flood, drought, storm or other event beyond the reasonable control of either party.

16.9.         The failure by the Company to enforce any provision of these terns and conditions shall not be treated as a waiver of that provision, nor shall it affect the Company’s right to subsequently enforce that provision.