APPLICABLE TERMS AND ACCEPTANCE OF ORDER
These terms of sale between CONFOIL NZ (“CONFOIL”) and the Customer (the "Customer") shall apply to all orders for aluminium packaging and trays, baking rolls, sealing and closing machines and films and associated food containers (“Goods”) accepted by CONFOIL and that in the case of conflict or dispute these terms and conditions shall prevail and take precedence over any document or oral message from the Customer. Where CONFOIL fails to enforce any terms or conditions under this contract CONFOIL will not be deemed to have waived these rights with respect to any term or condition or right.
Goods are supplied by CONFOIL to the Customer on a non-exclusive basis.
CONFOIL reserves the right to supply its Goods in its own right and to other stockists.
The Customer acknowledges that these terms of sale constitute a Security Agreement as defined by the Personal Property Securities Act 1999 (“PPSA”). For the purposes of the PPSA, Collateral shall include all and any Goods sold by CONFOIL to the Customer and the proceeds thereof. The Customer agrees to give CONFOIL a security interest in all of the Customers present and after-acquired property that CONFOIL has supplied and not to allow any person to file a finance statement over any of the Collateral secured by this Security Agreement without the prior written consent of CONFOIL.
CONFOIL may register a Purchase Money Security Interest over the Goods and the Customer shall agree to waive the right to a verification statement for purposes of s.148 of the Personal Properties Securities Act.
All prices shown are in New Zealand Dollars ($NZD).
CONFOIL shall publish a price list of its Goods ruling at the time of the order and shall give fourteen (14) days notice of any price changes. CONFOIL may cancel any order without liability if it considers the order uneconomic or impractical to fulfil. Freight and other handling charges will be charged to orders less than $400 + GST value. Orders of higher value will be freight free.
CONFOIL may also confirm the price of Goods as a quotation and the Customer shall confirm acceptance by providing an order to CONFOIL or signing the CONFOIL quotation or sending an electronic confirmation to CONFOIL.
Quotations of Goods shall be valid for thirty (30) days from the date of publication but no quotation will constitute an offer unless signed by CONFOIL and CONFOIL may withdraw any quotation before the Customer's signed acceptance.
Intellectual Property Liability
The Customer agrees that the intellectual property of CONFOIL in the form of website content, designs, drawings, models, prototypes or samples displayed by or with the Goods (whether they are trade-marked or not) , the ownership shall remain the property of CONFOIL and the Customer agrees that it can only use the intellectual property in its use of the Goods for display and resale and that it will not give or copy the intellectual property of the Company to any third party. No content or images may be removed from www.CONFOIL.co.nz for use in a Customer website or agent of the Customer website or any other electronic or digital media.
Upon approval of a CONFOIL quotation by the Customer or Customer order to CONFOIL, the Customer shall agree that Goods that are designed or procured specifically for the Customer (meaning non standard or make to order) cannot be cancelled without the Customer paying the full cost of the manufacture or procurement of the Goods to the time of cancellation.
Where the Customer or its agents has arranged for the supply of plans, layouts or drawings for the supply of the Goods OR where the Goods are to be applied to or mixed with second hand or existing goods being the property of the Customer, by declaration in the quotation, it shall be the sole responsibility of the Customer that supply is satisfactory for the purposes they are intended and if CONFOIL uses such supply and incurs costs where supply is not fit for the purpose intended by the Customer, the Customer shall pay CONFOIL for all costs incurred in CONFOIL's supply.
Payment shall be made upon delivery of the Goods OR by 50% deposit and the remainder of price upon delivery otherwise payment will be the 20th of the month following date of purchase except where CONFOIL has agreed to provide credit to the Customer which terms shall be declared at the time of the order or quotation The Customer shall make payment of all amounts due to CONFOIL without any delay or deduction whether by way of set-off, counterclaim or otherwise. The Customer shall agree that CONFOIL has sole discretion to apply payments from the Customer to any transaction or CONFOIL invoice notwithstanding that the Customer may have applied the payment to a particular transaction or invoice.
If at any time CONFOIL reasonably deems the credit of the Customer to be unsatisfactory, it may require the Customer to provide at the Customer's cost, security for payment and/or CONFOIL may suspend performance of its obligations under this contract until security is provided to its satisfaction and CONFOIL may require the Customer to pay all costs incurred as a result of suspension and re-commencement of supply including legal and debt collection costs.
Interest for Late Payment
CONFOIL may charge interest on any money's outstanding under this contract on a daily basis at a rate equal to 5% above the bank indicator lending rate of CONFOIL. Interest is payable from the date payment was due until the date CONFOIL receives payment. The right of CONFOIL to charge interest is without prejudice to its other rights or remedies for the Customer's default in failing to pay on the due date, and CONFOIL may suspend performance of any of its obligations and secure any Goods it has supplied and in the Customers possession until payment is made in full.
Delivery of the Goods to the care and control of the Customer at the site designated by the Customer shall constitute delivery. Delivery may also be when CONFOIL advises the Customer that the Goods are ready for collection (constructive delivery). CONFOIL will make every effort to ensure that Goods are supplied on time, but will not be responsible for any loss to the Customer arising in any way from delays in delivery. The Customer agrees that where the Goods are delivered in instalments each delivery will be regarded as a separate contract and subject to the same payment terms.
Delivery will be deemed to be accepted by the Customer unless the Customer notifies the Company within ten (10) days from the date of delivery unless delivery is disputed. The Customer agrees that any employee or agent of the Customer who signs for delivery shall be authorised to accept delivery and the Company will not be held liable for missing Goods where a signature has proven delivery.
Where CONFOIL has performed part or all of the supply of Goods at a time agreed with the Customer but where delivery is delayed because of any act, omission or delay by the Customer CONFOIL will require the Customer to pay that portion of the contract price which represents the costs incurred by CONFOIL in carrying out supply.
The Customer agrees that CONFOIL has legal and equitable right to title in the Goods and ownership shall only pass to the Customer when the contract price is paid. As long as ownership in the Goods is retained by CONFOIL the Customer will store the Goods separately and in such a way that they are identifiable as the property of CONFOIL.
Notwithstanding that property in the Goods is retained by CONFOIL, the Customer is hereby authorised to use the Goods in the ordinary course of business but cannot alter the Goods or mix with or attach with other goods or property of the Customer without the written permission of CONFOIL, and can only use the Goods as the fiduciary agent and bailee of CONFOIL until the Customer pays CONFOIL in full without deduction or setoff.
In any event where Goods remain unpaid by the Customer, CONFOIL has unreserved right to enter the property of the Customer or its agents during normal business hours and remove Goods relating to the unpaid amount in accordance with the Credit (repossession) Act or in accordance with s109 to s119 inclusive of the PPSA and the Customer will not hold CONFOIL responsible for any economic or consequential loss that the Customer may suffer as a result, whether the Goods are attached to other goods owned by the Customer, or not. CONFOIL may resell the Goods notwithstanding that the Goods may have deteriorated or are damaged by the Customer.
The proceeds of such sale shall be applied against monies owed by the Customer and shall otherwise not release the Customer from its obligations to pay the full contract price for the Goods.
Regardless of ownership the Customer agrees to accept risk in the Goods for any loss, theft, damage or deterioration of or to the Goods upon delivery and while in the possession of the Customer. This means that the Customer shall agree to properly store, protect and insure the Goods under its risk policy. Failure by the Customer to properly protect and insure the Goods shall not absolve the Customer of the legal responsibility to CONFOIL to pay for the Goods in the event of fire or loss damage or theft while under the care and responsibility of the Customer.
The Customer shall inform its creditors of the terms upon which it buys Goods from CONFOIL and must declare CONFOIL’s reservation of title to any Trustee in Bankruptcy or Liquidator of the Customer or any Receiver of the Customer’s business or assets of the rights of CONFOIL and title to the Goods.
Retention of Title upon resale of the Goods
Where Goods in respect of which title has not passed to the Customer are sold by the Customer any book debt created upon sale of such Goods and the proceeds of sale of such Goods, when received by the Customer, shall be held upon trust by the Customer for CONFOIL and any proceeds of sale so received by the Customer shall be placed in a separate bank account and shall first be applied towards the satisfaction of all indebtedness of the Customer to CONFOIL.
If the Goods, the subject of this contract, have become the constituent of mixed with or attached to any other goods, meaning Goods that are sold by CONFOIL and those goods are sold by the Customer prior to CONFOIL receiving payment, then a portion of the proceeds of that sale, attributable to CONFOIL's Goods shall be the property of CONFOIL, and the Customer shall ensure that such proceeds are at all times held in a separate fund in trust for CONFOIL.
This reservation of title and ownership is effective whether or not the Goods have been altered from that supplied or mixed with other goods or materials owned by the Customer.
CONFOIL Guarantee & Warranty
The warranty of the Goods as to merchandisable quality and fitness of the Goods for purposes declared in the CONFOIL catalogue or published material shall be for a period of two (2) years from delivery. Where the Customer sells the Goods to a consumer third party CONFOIL will extend the period of warrant to two (2) years following delivery by the Customer to the consumer third party but the Customer shall accept responsibility and liability for determining the fitness of the Goods for the purposes of the consumer third party.
Where CONFOIL accepts liability for damage or defect covered by its guarantee and elects to repair or replace Goods it may repair or replace by other articles of similar description and value (but can be of a standard type) as soon as reasonably practicable and such substituted articles shall become subject to the provisions of this contract, in that CONFOIL will conduct the repair or replacement at no charge to the Customer.
CONFOIL shall not be liable for any economic or consequential loss to the Customer arising out of any breach of the obligations of CONFOIL and the liability of CONFOIL whether in contract or pursuant to any cancellation of the contract or in act or otherwise in respect to all claims for loss, damage or injury the Customer may regard, shall be linked at the option of CONFOIL to the repair or replacement of the Goods or to the price of the Goods.
Consumer Guarantees Act 1993
It is acknowledged that these terms and conditions of trade shall be governed by the provisions of the Consumer Guarantees Act 1993 only for sales under the provisions that Act of these terms and conditions of trade shall be read as modified to the extent necessary to give effect to that intention.
Where the Customer resells the Goods to third party consumer purchasers the Customer shall be mindful of its obligations under the Act to offer repair, replacement or full value of the Goods to the consumer purchaser subject to the CONFOIL claims conditions and upon informing CONFOIL where damage or defects occur. CONFOIL shall determine the option to be taken at its sole discretion and shall inform the Customer. CONFOIL shall ensure that the Customer does not suffer economic loss in the application of the CONFOIL warranty under the Act.
The Customer may use published material and instructions of care for the Goods provided by CONFOIL but shall not, give or make any undertaking, assertion or representation in relation to the Goods to any other person or company. If the Customer makes any other representations to the purchaser the Customer shall indemnify CONFOIL against any liability or cost incurred by CONFOIL as a result of any breach by the Customer of this provision.
Claims for Damaged or Defective or Deteriorated Goods OR Goods Short Supplied
CONFOIL at its discretion will repair or replace any damaged or defective Goods meaning Goods that are not of merchandisable quality or fit for the purposes described in its catalogue or published material or make a reasonable allowance on the purchase of goods to replace the Goods provided:
(a) that the Customer contacts a CONFOIL Services Representative (contact 0800 107 620) and obtains authorisation prior to returning the Goods and that the claim specifically identifies the damage or defect(s) or Goods short supplied; and
(b) that CONFOIL has reasonable opportunity to investigate the claim.
If the Customer does not comply with the above requirements, the Customer will be deemed to have accepted the Goods and CONFOIL will not incur any liability whatsoever in relation to the Goods.
The Customer agrees that claims shall not be considered in respect of Goods which:
(i) are not intact and in original condition and packaging .
(ii) have been improperly stored causing damage or deterioration.
(v) have not been used in accordance with CONFOIL publications.
Damaged or defective Goods cannot be disposed of by the Customer or its agents without the permission CONFOIL.
Claims for Goods Incorrectly Ordered
CONFOIL reserves the right to allow claims for Goods that are incorrectly ordered by the Customer (provided that they are not made to order) by retaining twenty per cent (20%) of the invoice price plus freight costs as an administrative charge and handling fee. Claims for Goods incorrectly ordered will not be recognised by the Company unless the Goods are in original condition and unless the Customer advises the Company within seven (7) days of delivery.
Grounds for Termination by CONFOIL
This contract may be terminated by CONFOIL immediately by written notice to the Customer if an Event of Default of payments due to CONFOIL by the Customer occurs for any reason. CONFOIL has the right to repossess any Goods that remain unpaid.
Upon the termination of this agreement for any reason, all rights of the Customer granted by this agreement shall terminate. Terminations of this contract shall not relieve the Customer of its obligations to pay all moneys owed by it to CONFOIL on any account whatsoever, which money shall be payable immediately notwithstanding that the date for payment of the money may not have arrived. Termination of this contract shall not relieve the Customer from liability arising from any antecedent breach of the terms of this Contract.
Applicable Law for Dispute and Arbitration
In the event of any dispute between CONFOIL and the Customer arising out of this contract, the substantive laws of New Zealand shall apply and such dispute shall be referred to a Mediator to be agreed between the parties on a shared cost basis and upon failure to accept the resolution of the Mediator shall be referred to an Arbitrator to be agreed between the parties and upon failure to reach agreement arbitration be conducted in accordance with the New Zealand Arbitration Act 1996 and its amendments.
Upon signing the CONFOIL Credit Application OR signing acceptance of a CONFOIL quotation OR providing an order to CONFOIL the Customer agrees that these Terms and Conditions of Sale shall apply