Terms & Conditions
CONFOIL NZ LIMITED
(Company number 597115; NZBN 9429038818646)
TERMS AND CONDITIONS OF SALE
These terms and conditions, together with all invoices and other documents described in clause 8(i)(i), constitute the entire agreement between the parties relating to the supply, or proposed supply, of Goods by Confoil to the Purchaser. These terms and conditions, and all invoices and other documents described in clause 8(i)(i), shall apply to the exclusion of any other agreement including any terms and conditions of the Purchaser (whether on the Purchaser’s order form or otherwise). By ordering any Goods, the Purchaser is deemed to agree to be bound by these terms and conditions. This clause 1 is subject to clause 23.
Please note that Confoil will not provide a refund or replacement if you simply change your mind.
CGA means the Consumer Guarantees Act 1993.
Confoil means Confoil NZ Limited (Company Number 597115; NZBN 9429038818646) and each related company of Confoil (as defined in the Companies Act) that supplies or proposes to supply Goods from time to time.
Companies Act means the Companies Act 1993.
Goods means goods supplied, or offered for supply, by Confoil from time to time.
GST means Goods and Services Tax payable under the Goods and Services Tax Act 1985.
PPSA means the Personal Property Securities Act 1999.
Purchaser means any person or entity placing an order to purchase, or that otherwise purchases, Goods from Confoil.
Insolvency Event means the happening of any of the following events in relation to the Purchaser:
- being a company, means the occurrence of any of the following events (i) a resolution is passed for the winding up of the Purchaser (other than for the purposes of reconstruction or amalgamation on terms which have been previously approved in writing by Confoil, or (ii) a liquidator, provisional liquidator or receiver or receiver and manager, voluntary administrator, or administrator of a deed of company arrangement being appointed to all (or any) of the property of the Purchaser, or (iii) a mortgagee or secured creditor taking possession of, the business or any assets of the Purchaser, or (iv) the Purchaser making any composition or arrangement or assignment with or for the benefit of its creditors, or (v) the Purchaser ceasing to carry on its business (if any), or (vi) the Purchaser ceasing to be able to satisfy, in the reasonable opinion of Confoil, the solvency test within the meaning of section 4 of the Companies Act, or (vii) , the Purchaser being struck off the Companies Register for any reason or (viii) or anything analogous to or having a similar effect under the laws of New Zealand; or
- being or including an individual, (1) is adjudicated bankrupt or enters into a no asset procedure or has a trustee or supervisor appointed under the provisions of Insolvency Act 2006 in respect of that individual and/or the individual’s assets (whole or part)).
In these terms and conditions:
- the singular includes a reference to the plural and vice versa;
- legislation includes a reference to that legislation as amended or replaced from time to time and to any rulings or regulations issued in relation to that legislation;
- a reference to a person includes any company, firm, partnership, joint venture, association, corporation or other body corporate or entity or any governmental agency, and vice versa;
- "including" and any other similar words are not words of limitation;
- any indemnity is an irrevocable, continuing and unconditional indemnity and remains enforceable despite any variation to the indemnifier's obligations; and
- an agreement, obligation, warranty, covenant, undertaking or indemnity on the part of 2 or more persons (including where the Purchaser is comprised of 2 or more persons) binds them jointly and severally.
The prices for the Goods are the prices contained in Confoil's price list in effect at the time the Goods are ordered and are subject to change without notice.
The prices for the Goods are exclusive of GST. The Purchaser will be charged GST on all Goods purchased with the exception of Goods exported to an overseas Purchaser.
- PAYMENT AND DELIVERY
- The terms of payment are net cash, no later than the 20th day of the month following delivery, or otherwise as determined by Confoil and notified to the Purchaser. Payment must be made in full without any deduction or withholding of any nature by cash, credit card, and direct deposit or as otherwise specified by Confoil. All credit card payments attract a credit card surcharge at the rate notified by Confoil from time to time. Time is of the essence in relation to all payments to be made by the Purchaser to Confoil.
- Unless Confoil otherwise agrees in writing, the Purchaser is responsible for all delivery costs.
- Any date for delivery of Goods indicated by Confoil is an estimated date for delivery only.
- PAYMENT DEFAULT
- If the Purchaser defaults in payment by the due date of any amount payable to Confoil, or an Insolvency Event occurs in respect of the Purchaser, then:
- all money which is payable by the Purchaser to Confoil or would become payable by the Purchaser to Confoil at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Purchaser; and
- the Purchaser's right to possess, use up, sell or otherwise deal with Goods in respect of which title has not passed to the Purchaser under clause 8(c) ends,
and Confoil may, without prejudice to any other remedy available to it, do any one or more of the following:
- charge the Purchaser interest on any money overdue during the period of the default at the rate that is 2% per annum higher than Confoil’s bank’s base rate;
- charge the Purchaser for all expenses and costs (including legal costs on a full indemnity basis) reasonably suffered or incurred by Confoil resulting from the default and in taking whatever action it deems necessary to recover any sum due;
- take all necessary action in respect of the Goods in accordance with clause 8;
- cease or suspend for such period as Confoil thinks fit, supply of any further Goods to the Purchaser; or
- terminate any contract with the Purchaser so far as unperformed by Confoil, without effect on the accrued rights of Confoil under any contract.
- Confoil reserves the right, at any time and in its absolute discretion, to withdraw credit facilities made available by Confoil to the Purchaser, or impose conditions on them, if Confoil determines, or has reason to suspect (when acting reasonably), that there are issues with the Purchaser's creditworthiness.
- RISK, TITLE AND SECURITY
- For the purposes of this clause 8, PMSI means a "purchase money security interest" as defined in the PPSA, and "financing statement", "financing change statement", "proceeds", "register" and "security interest" have the meanings given to them in the PPSA.
- Risk in Goods bought by the Purchaser passes to the Purchaser when Confoil parts with possession of the Goods as follows:
(i)if the Purchaser has arranged collection and transport of the Goods, risk passes when the Goods are made available to the Purchaser or the Purchaser's carrier or agent for collection at Confoil's premises; or
(ii)if the Purchaser has requested Confoil to arrange delivery of the Goods, risk passes when the Goods are delivered to the Purchaser.
- Notwithstanding that risk in the Goods may have passed to the Purchaser, title to any Goods sold by Confoil to the Purchaser remains with Confoil and will not pass to the Purchaser until the Purchaser has paid to Confoil all amounts which the Purchaser owes Confoil, whether on account of the price of those Goods, the price of other Goods or otherwise (the aggregate of all such amounts at any time being the Outstanding Amount).
- Until title to Goods sold by Confoil to the Purchaser passes to the Purchaser under clause 8(c):
(i)the Purchaser will hold those Goods as a fiduciary and as bailee for Confoil and will be responsible for any loss, damage or conversion of the Goods;
(ii)Confoil may enter any premises owned or occupied by the Purchaser or its agents to inspect the Goods or inspect the Purchaser's books or records regarding the Goods at any time; and
(iii)subject to clause 7(a)(ii), the Purchaser may only use the Goods in the ordinary course of the Purchaser's business, or sell the Goods in the ordinary course of the Purchaser's business, provided that where the Purchaser sells Goods:
(A)the Purchaser must hold all money the Purchaser receives for the sale of the Goods (Receipts) as bailee, fiduciary agent and trustee for Confoil. Confoil has the right to trace and claim Receipts. Receipt by the Purchaser of payment will be treated as conclusive evidence that the Purchaser has received Receipts;
(B)the Purchaser will sell as principal and the Purchaser will have no power to commit Confoil to any contract or otherwise or to any liability, but as between the Purchaser and Confoil, the Purchaser will sell as fiduciary agent; and
(C)the Purchaser must account to Confoil for all Receipts, which must be kept in a separate account on trust for Confoil for that purpose until accounted for to Confoil.
- Until the Purchaser has paid to Confoil all amounts which the Purchaser owes Confoil, the Purchaser must ensure that Goods in its possession or control are:
(i)clearly identified as being owned by Confoil; and
(ii)stored separately from any other goods.
- Until title to Goods sold by Confoil to the Purchaser passes to the Purchaser under clause 8(c), the Purchaser must ensure that those Goods are not and will not be subject to any security interest granted or created in favour of any third party (whether under contract, statute or common law) which ranks in priority to any security interest Confoil has in those Goods, without Confoil's prior written consent.
- Without limiting Confoil's rights, if the Purchaser becomes aware of a third party's interest in or relating to a security interest in respect of those Goods, the Purchaser must notify Confoil immediately in writing and provide Confoil with all relevant details relating to the security interest, including the third party's full name and contact details, the nature of the security interest and the Goods subject to the security interest.
- Despite the foregoing provisions of this clause 8, Confoil is entitled to maintain an action against the Purchaser for payment of the price of Goods supplied by Confoil to the Purchaser.
- The Purchaser acknowledges and agrees with Confoil that:
- these terms and conditions, together with each invoice for Goods issued by Confoil to the Purchaser and any other document issued by Confoil to the Purchaser which describes any Goods supplied by Confoil to the Purchaser, constitute a security agreement for the purposes of the PPSA;
- these terms and conditions (this clause 8 in particular) create a security interest or security interests (including, where applicable, a PMSI) in Goods (and their proceeds) supplied by Confoil to the Purchaser from time to time; and
- Confoil may at its discretion register a financing statement in respect of any such security interest.
- The Purchaser undertakes to:
- sign any and all further documents and provide any and all further information, such information to be complete, accurate and up to date in all respects, which Confoil may reasonably require to register a financing statement or a financing change statement on the register relating to any security interest referred to in clause 8(i)(ii);
- indemnify and upon demand reimburse Confoil for all expenses incurred in registering a financing statement or financing change statement on the register or releasing any property from a security interest referred to in clause 8(i)(ii);
- until title to Goods sold by Confoil to the Purchaser passes to the Purchaser under clause 8(c), the Purchaser must not give Confoil a written demand, or allow any other person to give to Confoil a written demand, requiring Confoil to register a financing change statement under the PPSA in respect of the Purchaser or any of the Goods, or enter into or allow any other person to enter into the register a financing change statement under the PPSA in respect of the Goods; and
- give Confoil not less than fourteen (14) days’ prior written notice of any proposed changes in the Purchaser’s name or any other change in the Purchaser’s details.
- The Purchaser waives its right to receive a copy of any verification statement(s) under the PPSA. The Purchaser waives its rights under sections 114(1)(a), 116, 117(1)(c), 119, 120(2), 121, 125, 126, 127, 129, 131, 132, 133 and 134 of the PPSA.
- Where Confoil has rights in addition to those under Part 4 of the PPSA, those rights continue to apply.
- In the event of a default by the Purchaser in respect of any of these terms and conditions including a default in the payment of any Outstanding Amount, Confoil has the right (without giving notice) to retake possession of the Goods and the Purchaser irrevocably authorises Confoil or its representative, servant, or agent to enter the Purchaser’s premises upon which the Goods are housed or stored for the purpose of retaking possession of same. Confoil is not liable for any costs, losses, damages, expenses or other monies incurred or lost by the Purchaser as a result directly or indirectly of Confoil retaking possession of the Goods. In the event Confoil retakes possession of the Goods, Confoil is entitled to sell the Goods free of any claim from the Purchaser.
- The Purchaser agrees that repossession and retention of Goods will only satisfy so much of the amounts owing by the Purchaser to Confoil as is equivalent to Confoil's reasonable estimate of the lower of cost or net realisable value of the Goods as at the date of repossession, and the repossession and retention will immediately extinguish any rights or interest the Purchaser may have in the Goods.
- Confoil and the Purchaser agree not to disclose information of the kind described in section 177(1) of the PPSA, except where such disclosure is required under 177(2) or 181 of the PPSA.
- PURCHASER CLAIMS AND RETURNS
Subject to any rights granted to the Purchaser under the CGA or any other Law that cannot be lawfully excluded:
- the Purchaser will be deemed to have accepted that any Goods supplied by Confoil are in accordance with the Purchaser’s order unless it notifies Confoil initially (by phone/email) within 7 days of receipt of any Goods and then in writing stating full details of its claim within 14 days of receipt of the Goods;
- the Purchaser will be deemed to have accepted all the details on an invoice provided by Confoil for the Goods as being correct unless it notifies Confoil in writing of its claim within 14 days of receipt of invoice;
- no return of Goods will be accepted by Confoil unless the Purchaser has requested and obtained authorisation from Confoil to return those Goods. Under no circumstances will Confoil accept Goods for return six (6) months after the purchase date. All freight for returns is at the Purchaser’s cost and the Purchaser will be charged a fee for Confoil’s repackaging of those Goods. Confoil may, at its sole discretion choose to issue a pre-paid ‘courier ticket’ for the return freight but the Purchaser will be charged a fee for Confoil’s repackaging of those Goods.
- any Goods returned by the Purchaser to Confoil must be returned in the same order and condition as they were delivered to the Purchaser.
- USE OF GOODS IN MICROWAVE OVENS
Any Goods comprising aluminium foil must only be used in microwave ovens if they are used in accordance with the recommendations of the manufacturers of the relevant microwave oven.
- WARNINGS AND PURCHASER UNDERTAKINGS AND RELEASE (USE OF GOODS)
Many of the Goods are generally intended for wrapping, containing, storing and/or packaging food items. However, given the wide variety of foods and items that could potentially be wrapped, contained, stored and/or packaged in or using Goods, the Purchaser:
- acknowledges that Confoil cannot and does not test the suitability of each and every Good for wrapping, containing, storing and/or packaging every food item and, in particular, the acidity of some fruits and vegetables, such as tomatoes, may cause some Goods to corrode and contaminate their contents;
- agrees to follow and observe all warnings, guidelines, specifications and recommendations given by Confoil (including, without limitation, any which are posted on Confoil's website) in relation to the use of any Goods, including any statement or guidelines by Confoil as to the specifications of the Goods;
- agrees not to use any Goods except in accordance with any applicable warning, guideline, specification or recommendation described in clause 11(b);
- acknowledges that, except only for those rights and remedies that the Purchaser has if the Purchaser is a ‘consumer’ as defined in the CGA which cannot be lawfully excluded, restricted or modified, Confoil gives no warranty, guarantee or undertaking, whether express or implied, that the Goods are fit for wrapping, containing, storing or packaging any particular product or substance safely such that there will be no leaking, corrosion or rupture of or from the Goods, and no contamination or degradation of, or other damage to, any particular product or substance stored or held in Goods;
- undertakes to conduct appropriate tests before wrapping, storing, holding or packaging a particular product or substance which the Purchaser proposes to store, hold in, or package with, the Goods to ascertain whether the Goods are suitable for doing so under all relevant conditions (including, without limitation, temperatures):
(i)which the Purchaser requires the particular product or substance to be stored, held or packaged; or
(ii)under which the Purchaser could reasonably expect the Goods to be subjected to while the particular product or substance is stored, held or packaged in them;
- undertakes to conduct appropriate re-testing of the Goods in relation to the storing, holding or packaging of a particular product or substance in the Goods under all relevant conditions if, after the Goods passed initial testing in relation to that particular product or substance:
(i)a component or ingredient, or the quantity or number of components or ingredients, of the particular product or substance is changed (including, where the particular product or substance is food, there is a change in an ingredient or the amount of an existing ingredient in the recipe for the food item); or
(ii)any condition under which the Goods were initially tested subsequently changes,
because the relevant change may result in the Goods no longer being suitable to store, hold or package the particular product or substance safely and effectively; and
- to the maximum extent permitted by law, releases Confoil from:
(i)any claim which the Purchaser has or might have, but for these terms and conditions, against Confoil as a result of any leaking, leaching, corrosion or rupture of or from the Goods, or any contamination or degradation of, or other damage to, any particular product or substance stored or held in the Goods; and
(ii)all liability in connection with such a claim.
- If the Purchaser requests that Confoil supply particular Goods for which Confoil has no appropriate tools or dies, Confoil will provide the Purchaser with a quote for the cost of developing and manufacturing the appropriate tools and dies. If the Purchaser accepts the quote, including by instructing Confoil to proceed with development or manufacturing of the tools or dies, the Purchaser agrees to pay that cost.
- Despite the Purchaser bearing the cost for any tool or die development and manufacture, all tools and dies remain the property of Confoil unless otherwise stated in a written agreement between the parties concerning the tools or dies.
- If Confoil agrees in a written agreement that the Purchaser owns or has a pecuniary interest in the tool or die, the Purchaser agrees that the tool or die will remain under the control of and on the premises of Confoil at all times unless otherwise agreed to by both parties in writing.
- The technology, processes and intellectual property rights in, or associated with the development and manufacture of, any tool or die will always remain the property of Confoil and cannot be used, copied, altered or sold without Confoil’s written permission.
- In the event Confoil agrees to invest directly in the design, development and manufacture of a tool or die to meet a customer’s requirements, Confoil will retain ownership of the designs, the tool and/or die and will retain the right to make use of them in the future. Confoil may request the Purchaser to commit a minimum volume over an agreed period at an agreed price before making such an investment. Any such details will be outlined as noted in clause 24 ‘Special Conditions’.
- INTELLECTUAL PROPERTY
- Unless agreed otherwise in writing between Confoil and the Purchaser:
(i)all copyright, patent, design, trademark and other intellectual property rights (whether registered or not) in or relating to any Good or any tool or die referred to in clause 12, or any promotional materials, technical documents, specifications or drawings relating to any of those things (collectively, Intellectual Property) are Confoil's property; and
(ii)nothing in these terms and conditions grants any interest in the Intellectual Property to the Customer.
- The Customer undertakes not to:
(i)make, or authorise or arrange the making of, any reproduction of any of the things referred to in clause 0(a)(i), or any part thereof, except that the Customer may authorise or arrange for Confoil to reproduce any of those things;
(ii)take any steps to register any rights included in the Intellectual Property or any rights deceptively similar to the Intellectual Property;
(iii)use any of the Intellectual Property as part of any corporate, trade or business name; or
(iv)do anything which would in any way infringe, call in question or lessen the validity or value of the Intellectual Property.
- ORDER VARIATION
- Alteration to orders: Any request by the Purchaser to alter the size, dimensions or physical properties of Goods and/or tooling will not be accepted unless otherwise agreed to in writing by Confoil.
- Cancellation of orders: The Purchaser cannot cancel any part of an order once Confoil has commenced production of the Goods and/or tooling.
- Deferment of delivery: Where the Purchaser requests that Confoil defers delivery of any Goods and Confoil agrees to such deferment, upon Confoil’s election, Confoil may require the Purchaser to pay a warehousing fee specified by Confoil, to apply from the date the deferment is agreed by Confoil until the date of actual delivery of the Goods.
- LIMITATION AND EXCLUSION OF LIABILITY
- Except only for those rights and remedies that the Purchaser has (if the Purchaser is a ‘consumer’ as defined in the CGA) in respect of any Goods under the CGA and similar laws and which cannot be lawfully excluded, restricted or modified, any and all conditions, guarantees and warranties, whether statutory or otherwise, express or implied are excluded in relation to all Goods.
- Confoil's liability under any condition, guarantee or warranty implied or stipulated by any laws (other than the CGA) in relation to Goods which may not be excluded but may be limited in one of the following ways, is limited at Confoil's option to:
(i)in the case of goods supplied by Confoil:
(A)the replacement of the relevant goods or the supply of equivalent goods; or
(B)the refund of any amount paid by the Purchaser for the relevant goods; and
(ii)in the case of services supplied by Confoil:
(A)the supply of the services again; or
(B)the refund of the price paid by the Purchaser for the services.
- Subject to the CGA, Confoil will not be liable to the Purchaser or any other persons under any circumstances for any indirect, incidental or consequential loss or damage (including loss or damage caused by negligence or wilful acts of default of Confoil, or its employees or agents) whatsoever arising from a breach of any of these terms and conditions or a breach of any other statutory implied warranty, term or condition in relation to the Goods.
- Subject to the CGA, Confoil will not be liable for any costs, claims, damages or demands arising from personal injury, loss or damage to, or personal property whatsoever occurring to the Purchaser or its employees or agents by reason of:
- the use of Goods or their design, production or processing, including the use of Goods in microwave ovens;
- the delivery of the Goods or any failure to deliver or delay in delivering the Goods;
- any act or omission of Confoil or its servants and agents; or
- any statement or representation made by an employee or agent of Confoil in respect of the Goods.
- All designs, drawings, specifications, descriptions, illustrations, photographs, samples, data, dimensions, weights and other particulars of Goods given by Confoil (including on its website) are approximations only and are intended to be a general description for information and identification purposes only and do not create a sale by Confoil of Goods by description. Confoil reserves the right to produce and/or supply Goods with such minor variances from any drawings, illustrations, photographs, samples or specifications given by Confoil in respect of those Goods as it sees fit, or alter specifications for those Goods set out in any promotional material issued by Confoil (including on its website) to reflect changes made after the date of issue of that promotional material.
- The Purchaser acknowledges and agrees that it is in trade and the Goods are being supplied and acquired in trade, that the Purchaser agrees to contract out of the provisions of:
- The CGA; and
- sections 9, 12A and 13 of the Fair Trading Act 1986,
in relation to the agreement between the parties, and that it is fair and reasonable to exclude their application. All representations, warranties and other conditions (statutory, express or implied) of Confoil which are not expressly referred to in in these Conditions of Sale are excluded to the fullest extent permitted by Law.
The Purchaser will at all times promptly and fully indemnify Confoil, and Confoil’s officers, employees and agents (“those indemnified”) from and against any loss (including legal costs and expenses) or liability, suffered or incurred by any of those indemnified arising from any claim against those indemnified to the extent the claim is referable to:
- a breach by the Purchaser of its obligations under these terms and conditions or a breach of the Purchaser’s obligations to the person that the Purchaser sells the Goods to; or
- any wilful unlawful, or negligent act or omission of the Purchaser.
- CHANGE OF OWNERSHIP
The Purchaser agrees to notify Confoil in writing of any change of ownership or control of the Purchaser within seven (7) days from the date of such change and indemnifies Confoil against any loss or damage as a result of the Purchaser’s failure to notify Confoil of any such change.
- FORCE MAJEURE
If, as a direct or indirect result of natural disaster, industrial dispute, accident, government restriction, war, civil disturbance, epidemic, pandemic, governmental (central or local) direction or order, act of terrorism or any other cause, of whatever nature, outside Confoil’s reasonable control (Force Majeure Event), Confoil is unable to perform its obligations under these terms and conditions (including being unable to supply or deliver Goods to the Purchaser), Confoil will be entitled, at its option, by notice to the Purchaser to:
- extend the time for the supply or delivery of Goods which Confoil is prevented from supplying or delivering due to the Force Majeure Event;
- terminate the Purchaser's order for any Goods which Confoil is prevented from supplying or delivering due to the Force Majeure Event; or
- decline to accept any further order for Goods from the Purchaser,
and the Purchaser shall not be entitled to claim compensation for any failure by Confoil, while the Force Majeure Event continues, to supply or deliver Goods, or to perform any of its other obligations under these terms and conditions. A Force Majeure Event does not relieve the Purchaser from any obligation to pay for Goods already supplied or delivered by Confoil, or to accept the supply or delivery of any Goods capable of supply or delivery by Confoil, despite a Force Majeure Event or after a Force Majeure Event ends.
Any failure by Confoil to enforce any of these terms in respect of any breach by the Purchaser shall not be construed as a waiver of any of Confoil’s rights or a waiver of Confoil’s right to enforce the term in respect of that breach in the future. The only persons authorised to waive a breach of a term by the Purchaser is a director or other authorised representative of Confoil.
Confoil may amend (including by replacing) these terms and conditions by giving the Purchaser at least 30 days' notice of the amendment. If the Purchaser places an order for Goods after such notice of an amendment is given, the Purchaser will be deemed to have accepted, and be bound by, these terms and conditions as so amended.
- GOVERNING LAW
These terms and conditions shall be governed by and construed according to the laws of New Zealand and the parties accept the non-exclusive jurisdiction of the courts of New Zealand.
If any provision of these terms and conditions are contrary to any law (for example by being illegal, void or unenforceable) that provision shall be read down to the extent necessary to become valid and enforceable or, if this is not possible, shall be deemed to be severed from these terms and conditions, without affecting the remaining provisions of these terms and conditions.
- SPECIAL CONDITIONS
If the parties agree to any special conditions, those special conditions will be taken to be incorporated into, and to form part of, these terms and conditions. Those special conditions shall prevail to the extent of any inconsistency between those special conditions and the other clauses of these terms and conditions. Special conditions shall only be binding on Confoil if they are contained in a document that is headed “Special Conditions” and Confoil specifically agrees that they are binding on it. By way of example only, it shall not be sufficient for any special conditions to be on the Purchaser’s order form.