GENERAL TERMS & CONDITIONS OF TRADE – PASSION PLASTIC EPI LIMITED
These terms can be viewed and downloaded as a pdf here
The following Terms govern all Orders and business interactions
between the Buyer and Passion Plastic EPI Limited (“EPI”) and will be
incorporated into each contract entered into between the Buyer and for
the supply of Goods and Services, together with any invoices issued by
EPI for those Goods and Services. For clarification purposes
Passion Plastic EPI Limited includes its business units Aotea Plastics
and EPI Plastics.
1. PRICE AND ORDERS
1.1 Orders: Orders, are to be placed by the Buyer,
either on account or on a casual basis (cash sale). The Buyer will
place Orders with EPI in accordance with EPI’s processes as advised to
the Buyer from time to time. EPI may, at its discretion, reject
any Order. Once accepted by EPI the Buyer may not cancel or change its
Order without EPI’s written agreement.
1.2 Payment: The Buyer will pay to EPI the price for the Goods as
most recently specified by EPI to the Buyer in writing (which price
includes, without limitation, costs relating to transportation, storage
and insurance (“Price”) in accordance with clause 2. The Buyer’s
obligation to pay the Price will not be affected by any defect in, or
damage to, the Goods.
1.3 GST exclusive: The Price is exclusive of GST and other taxes
unless stated otherwise. The Buyer shall pay any tax or duty now
or hereafter imposed on the Goods in addition to the Price.
1.4 Change to Price: EPI may change the Price for the Goods at
any time. Any change in the Price will apply to all Goods
delivered on or after the date specified by EPI. If no date is
specified, the change will be effective immediately for all the Goods
delivered after the date EPI deems as the date of price increase. The
buyer being uninformed or unaware of this price rise, does not null
this clause.
1.5 Charge for inaccurate or changed Order: EPI may charge the
Buyer a reasonable fee where EPI incurs additional work or costs as a
result of lack of precision in the Buyer’s specifications or if the
Buyer alters the specifications after the date of the relevant Order.
1.6 Quotations: Unless otherwise stated in writing by EPI, any
quotation given by EPI lapses if not accepted within 20 business days
from the date of quotation, provided that EPI shall be entitled to
withdraw such quotation any time before receipt by EPI of a written
order in accordance with the quotation. The parameters of the
quotation are only binding for a further 20 business days after
acceptance, if Delivery is delayed for any reason. If it becomes
apparent to EPI that the information given by the Buyer is wrong, or
has changed, EPI has the right to alter its quotation for orders placed
after the quotation was given by EPI and accepted by the Buyer.
1.7 Buyer Provided Forecasts: If the Buyer has provided EPI with
forecasts of future requirements, including the reasonable
interpretation of the Buyers previous purchase patterns, it
acknowledges that EPI will be entitled to rely on the accuracy of such
forecast(s) for the purpose of ordering raw materials and arranging its
resources to meet those forecast requirements. In the event that
any such forecast is materially inaccurate EPI shall be entitled to
invoice the Buyer for all costs, expense or losses which result from
EPI having relied on the inaccurate forecast. Such invoice(s)will
be subject to the normal terms of payment applying to the Buyer.
In any event, EPI shall be entitled to invoice the Buyer for all
finished goods made to forecast and not ordered by the Buyer within 3
months of manufacture. Such invoice will be subject to the normal
terms of payment applying to the Purchaser.
2. PAYMENT
2.1 Payment terms: Payment of the Price is to be made by such
method as EPI nominates from time to time and is due by the 20th of the
month following the date of invoice. At present it is by
electronic payment into EPI’s nominated bank account.
2.2 No setoff: The Buyer may not withhold payment or make any
setoff or deduction from any Amount Owing without EPI’s prior written
consent.
2.3 Application of payments: EPI may apply any payments received in reduction of the Amount Owing as EPI thinks fit.
2.4 Default interest: If the Buyer does not pay the Price by the
due date, EPI may charge interest at a rate equal to 10% above the 90
day BKBM (New Zealand Bank Bill Benchmark Rate) on all overdue
accounts, or the unpaid portion of accounts, calculated monthly on the
unpaid portion of the Price and any other monies owing by the Buyer
from the due date for payment until payment in full, plus GST if
payable (and shall be chargeable both before and after any judgement is
obtained). Such interest will be added to the total amount owing
and this compounding total will also have interest charged on it going
forward.
2.5 Repayment of overpayment by the Buyer. On the occasion EPI
receives an over-payment, and EPI is informed by the Buyer in writing,
the overpayment will be refunded to the Buyer within 10 working days of
receipt of notice from the Buyer, or held in credit on the Buyer’s
account, as determined by the Buyer in writing. If the
over-payment is to be refunded this will be done by electronic payment,
into the bank account normally used by the Buyer for their business
transactions. The account details will be supplied to EPI in
writing and double checked by a non-electronic method, for example, but
not limited to, phoning the Buyer. The Buyer indemnifies EPI for
any loss due to fraud with regards to this repayment, and transfer by
EPI is deemed to have fulfilled EPI’s obligation to refund the Buyer.
If EPI solely discovers this overpayment, EPI is under no obligation to
inform the buyer of overpayment. If EPI does not receive notice
from the Buyer that they would like the over-payment to be returned, we
will hold this money in credit on the Buyer’s account. It will be
offset against future orders and obligations between the buyer and
EPI. If an account remains in credit for over 3 years from time
of deposit, EPI will endeavour to contact the Buyer for instructions
regarding this credit. If EPI is unable to get instructions, the
ownership of this credit will be transferred to EPI and will not be
available to be used by the Buyer.
2.6 Date of Invoice. The date of invoice is the date of dispatch
from EPI. In the situation of Buyer collected Goods, the date of
invoice is the date the Goods are available for collection.
3. PACKAGING
3.1 Packaging charge: Where the Buyer requires the Goods to have
additional packaging, or packed to special Buyer requirements, EPI may
charge for the cost of this packaging in addition to the Price.
3.2 Packaging terms: EPI may use in the delivery and packaging of
Goods, pallets, plastic bags and packs, layer boards, cartons, boxes,
returnable crates or other forms of packaging. That packaging may be,
at EPI’s sole discretion:
(a) hired, and the hire charges will be to the account of the Buyer from Delivery;
(b) non-returnable; or
(c) provided subject to the Buyer paying a deposit.
3.3 Restriction on re-use: The Buyer must at all times retain
possession of any items which have been used for delivering and
packaging the Goods, where ownership of the same has been retained by
EPI, and must not use them for delivering or packaging other goods and
must not be on-sold by the Buyer. These will be returned to EPI,
or transferred, or sold to the Buyer in accordance with a written
agreement.
3.4 Pallets: The Buyer acknowledges that any pallets used for
Delivery of Goods are held by the Buyer as bailee, unless otherwise
agreed by the parties. Subject to such agreement:
(a) the Buyer agrees to indemnify EPI against any costs, loss,
damages, claim or other expense incurred or suffered by EPI and arising
from any pallet not being returned to EPI in good order and condition
within twenty-eight (28) days of Delivery of the Goods; and
(b) if the Buyer returns any pallets to EPI later than 6 months
after the pallets were provided by EPI to the Buyer, EPI will be under
no obligation to refund the Buyer any amounts in respect of those
pallets.
3.5 Deposit: If required by EPI, the Buyer will pay a deposit
(being an amount reasonably determined by EPI) to EPI in respect of
pallets or other packaging of Goods. Such deposit will be refunded to
the Buyer upon return of the applicable packaging to EPI within the
specified timeframe in good order and condition.
3.6 Pallet transfer, hire and exchange: If the Buyer requests,
EPI may, in its absolute discretion, arrange for the transfer or hire
of pallets to the Buyer and further, may allow pallets to be exchanged
on a one-for- one basis at a depot to be nominated by EPI.
The cost of transfer of the pallets from the buyer to EPI will be paid
for by the buyer. Responsibility for pallets, while in the
possession of the buyer, and during transfer from the buyer to EPI,
including payment of damages, or replacement, will be the buyers until
the pallets have been returned to EPI’s premises.
4. DELIVERY
4.1 Delivery basis: Unless specified otherwise in writing or
specifically in these Terms of Trade, Goods are to be delivered DAP
(Delivery at Place) as defined in Incoterms 2010. To the extent that
any provisions of these Terms are inconsistent with any incorporated
provisions of Incoterms 2010, EPI’s Terms shall prevail. If the Buyer
is organising their own collection and freight, responsibility for
those Goods, including, but not limited to, the cost of freight,
insurance, damages, transfers to the Buyer at the time and place of
collection.
4.2 Unloading Goods: In all circumstances, the Buyer will be
responsible at its cost for unloading the Goods from the relevant
delivery vehicle.
4.3 No liability for delay: Any time advised for Delivery is an
estimate only, and EPI is not liable for any delay in Delivery.
4.4 Instalments: EPI may deliver the Goods by instalments. Each
instalment shall be treated as a separate contract under these Terms.
4.5 Tolerance: EPI may deliver up to 20% more or less than the
quantity of Goods ordered and the Buyer agrees to accept and pay for
the quantity delivered.
4.6 Delivery indemnities: The Buyer will indemnify EPI against
any loss, liability, costs or expenses incurred by EPI as a result of,
or in connection with:
(a) delays in Delivery caused by the Buyer; and
(b) the Buyer unloading the Goods.
4.7 Delivery to Freight Depot or Third Party Address: Delivery by
EPI to a freight company or their depot or collected by that freight
company, or Delivery to a third party address, as advised or organised
by the Buyer shall be deemed to be delivery to the Buyer.
4.8 Proof of Delivery: Delivery of the Goods is taken to occur at
the time that EPI (or EPI’s nominated carrier) delivers the Goods to
the Buyer’s nominated address even if the Buyer is not present at the
address. Proof of delivery is deemed to have been provided
if EPI’s freight company informs EPI that Delivery was successful, and
the address and date of Delivery is deemed to be that given by the
freight company.
4.9 Freight Cost and Service Delivery: At EPI’s sole discretion, the
cost of Delivery is in addition to the price of the Goods
delivered. EPI can alter the freight cost and freight service
delivery parameters at any time without notice.
4.10 Acceptance of Freight. The Buyer must take Delivery by receipt or
collection of the Goods whenever they are tendered for Delivery.
In the event that the Buyer is unable to take Delivery, or EPI or EPI’s
nominated freight company is prevented from Delivery of the Goods as
arranged, then EPI shall be entitled to charge the Buyer a reasonable
fee for redelivery, return, and storage.
4.11 Cancellation by EPI. EPI 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 Buyer.
EPI shall not be liable for any loss or damage whatsoever arising from
such cancellation.
4.12 Cancellation by the Buyer. In the event that the Buyer cancels
Delivery of Goods the Buyer shall be liable for any and all loss
incurred (whether direct or indirect) by EPI as a direct result of the
cancellation (including, but not limited to, any loss of profits).
Cancellation of orders for Goods made to the Buyer’s specifications,
custom products, or product from customer owed tooling, or for
non-stocklist items, will definitely not be accepted once production
has commenced, or an order has been placed.
5. RISK AND SECURITY
5.1 Risk: Risk of any loss, damage or deterioration of or to the Goods passes to the Buyer on Delivery.
5.2 Ownership: Ownership of the Goods remains with EPI and does not pass to the Buyer until:
(a) the Buyer pays in full the Amount Owing to EPI in respect of the Goods; and
(b) all other obligations of the Buyer to EPI in respect of the Goods have been met.
5.3 Use in the ordinary course: While Ownership of the Goods
remains with EPI, EPI authorises the Buyer in the ordinary course of
its business to use the Goods and to sell the Goods for full
consideration, and this consideration in turn is owned by EPI until all
obligations of the Buyer are meet.
5.4 No encumbrance: The Buyer must not sell, lease, dispose of,
create a security interest in, mortgage or part with possession of the
Goods or any interest in the Goods (or purport to attempt to do such a
thing) or permit any lien over the Goods while Ownership of the Goods
remains with EPI, except as set out in clause 5.3. This clause does not
prevent the Buyer from granting or permitting to subsist a general
security interest in its property in favour of a reputable trading
bank, provided that such general security interest at all times ranks
behind EPI’s security interest in the Goods.
5.5 Revocable authority: The authority referred to in clause 5.3:
(a) may be revoked by EPI at any time by EPI notifying the Buyer,
in such manner and at such time as EPI shall determine in its sole
discretion that the authority is revoked; and
(b) is, in any event, revoked automatically from the time an Event of Default occurs.
5.6 Consequences of revoked authority: Where the authority conferred by clause 5.3 is revoked under clause 5.5:
(a) the Buyer authorises EPI to use reasonable force to enter the premises where the Goods are stored and remove them;
(b) EPI shall exercise reasonable care in entering such premises
and removing such Goods, but shall not be liable for trespass or any
damage caused by the use of reasonable force;
(c) EPI may resell any repossessed Goods and apply the proceeds
of sale in reduction of the Amount Owing as EPI thinks fit; and
(d) the Buyer is liable for all costs associated with the
exercise by EPI of its rights under this clause and costs are payable
to EPI on demand.
5.7 Insurance: The Buyer must insure and keep insured with a
reputable insurance company all Goods in its possession or control from
the time of Delivery of such Goods against risk of loss or damage by
hazards normally insured against.
5.8 Buyer obligations: Until Ownership of the Goods passes to the Buyer under these Terms the Buyer must:
(a) keep the Goods in a manner that they are separately identifiable;
(b) keep proper stock records and records of account with respect
to the purchase, receipt, sale of, and other dealings with, the Goods;
and
(c) not do or allow anything to happen that might contribute to a
deterioration in the value of the Goods or otherwise adversely affect
the rights or interest of EPI in the Goods under these Terms.
5.9 Application of the PPSA: The Buyer acknowledges and agrees that:
(a) EPI has a security interest under the New Zealand Personal
Property Securities Act 1999 (PPSA) in all the Goods supplied by EPI
under these Terms and any Related Terms as security for payment of the
Amount Owing (including, for the purposes of sections 71 and 72 of the
PPSA in respect of the Goods), for the avoidance of doubt this includes
the proceeds from the sale of these goods;
(b) the Buyer acknowledges that it has received value from EPI as
at the date of first delivery of the Goods and has not agreed to
postpone the time for attachment of the security interest granted to
EPI under these Terms nor to subordinate such security interest in
favour of any person;
(c) these Terms and each security interest created under these
Terms is a continuing security, unaffected by any intermediate payments
or anything else whatsoever other than a written release signed by EPI
and is in addition to, and not to be merged in, any other security
agreement, guarantee or other agreement (present or future) expressed
or intended to be security for any amounts owing to EPI in respect of
Goods;
(d) no security interest created under these Terms is discharged,
nor are the Buyer’s obligations affected by any amendment to, or the
validity or enforceability of, or failure to enforce, these Terms, or
anything else whatever that, but for this clause, may have discharged
these Terms or affected the Buyer’s obligations under these Terms, and
EPI is not liable to the Buyer in relation to any of these matters,
even though the Buyer’s rights in subrogation or otherwise may be
prejudiced as a result;
(e) the Buyer will, at its own cost, promptly provide all
information and do all things that EPI may require to ensure that EPI
has perfected security interests in respect of the Goods under the PPSA
or otherwise to secure to EPI the full benefit of its intended rights
under these Terms; and
(f) the Buyer waives its rights under the PPSA to:
(i) receive a copy of any verification statement; and
(ii) receive a copy of any financing change statement.
5.10 Waiver: To the extent permitted by law, the Buyer and EPI contract out of, and the Buyer waives its rights under:
(a) section 114(1)(a) of the PPSA; and
(b) the Buyer’s rights referred to in section 107(2), 116,
120(2), 121, 125, 127, 129, 131 of the PPSA, and, where EPI has rights
in addition to those in Part 9 of the PPSA, those rights continue to
apply.
5.11 Notice of insolvency: The Buyer must immediately notify EPI
if the Buyer is unable to pay its debts when due (or is deemed unable
to pay its debts under any law) and/or is considering whether to
appoint an administrator, receiver or liquidator to the Buyer.
5.12 No discharge for insolvency: The security interest created
by these Terms is not discharged nor the Buyer’s obligations affected
by the appointment of any insolvency official.
5.13 Change in details: The Buyer must provide EPI with at least
14 days prior written notice before changing its name, address or
contact details, including the email address for invoices and
statements to be sent. If the Buyer doesn’t inform EPI of such
changes in writing, the communication to the previous addres
6. WARRANTIES AND LIABILITY
6.1 Sole remedies for Buyer: In respect of Claims of any kind, to the maximum extent permitted by law:
(a) the Buyer and EPI agree that Claims shall be subject to the
qualifications, limitations, exclusions and caps contained in these
Terms; and
(b) the sole remedies available to the Buyer against EPI, whether
under these Terms or at law shall be, at EPI’s discretion:
(i) the repair, rework or replacement of the Goods under these Terms; or
(ii) any payment, at EPI’s sole discretion, will be applied as a credit on the customer’s account.
(iii) any payment of compensation, will be up to the liability cap prescribed in clause 6.2.
6.2 Liability cap: Subject always to clause 6.4 EPI’s maximum
liability arising out of any Claim or under these Terms or at law
(whether in contract, tort, including negligence, statute or otherwise)
shall not exceed:
(a) where any Claim relates to Goods, the Price of the Goods which are the subject of the Claim and
(b) in any other case, $5,000.
6.3 Exclusions of liability: In addition to the other
qualifications, limitations, exclusions and caps contained in these
Terms, EPI will not be liable (whether in contract, tort, including
negligence, statute or otherwise) for any:
(a) loss of profits, loss of production, loss of use or indirect, consequential or special loss or damage of any kind;
(b) Claim relating to Goods that have been modified or
incorrectly used by the Buyer without EPI’s prior written approval or
which, in EPI’s reasonable opinion, have not been stored or maintained
or transported appropriately by the Buyer; or
(c) technical advice or assistance given or tendered by it to the
Buyer whether or not in connection with the manufacture, construction
or supply of goods for or to the Buyer.
(d) failure on the part of the Buyer to follow any instructions or guidelines provided by EPI.
(e) any use of any Goods otherwise than for any application specified on a quote or order form.
(f) the continued use of any Goods after any defect becomes apparent or
would have become apparent to a reasonably prudent operator or user, or
(g) fair wear and tear, any accident or act of God.
6.4 Limitation on Buyer’s Claims and Returns: No Claim may be made against EPI:
(a) that Goods do not conform with these Terms, if the Buyer
fails to give EPI notice of such non-conformity within 10 working days
after Delivery. Where Goods are delivered by multiple
instalments, a Claim in respect of each instalment must be made within
20 days of Delivery of the first instalment;
(b) in respect of any other event, more than 20 working days after Delivery;
(c) unless it is in writing and the Buyer must receive
notification in writing from EPI that EPI has received the claim
notice;
(d) 2 days or less after Deliver, inform EPI that the goods were
determined to be non-conforming at time of Delivery or receipt at the
Buyer’s location;
(e) if the Goods are not returned in the condition in which they were
Delivered and with all packaging material, brochures, instructions in
as new condition as is reasonably possible in the circumstances;
(f) if the products have been altered, repaired, reworked without the prior written approval of EPI; or
(g) for compensation for any delay in either replacing or remedying the
workmanship or product or in properly assessing the Buyer claim;
6.6 Handling Fee for Returns: EPI may, in its sole discretion,
accept the return of Goods for credit and may, in EPI’s sole discretion
charge the Buyer a handling fee of $35 per return; in addition, EPI
may, at its sole discretion, charge the freight cost to the Buyer for
said return.
6.7 Buyer's responsibility for Suitability: The Buyer is
solely responsible for establishing whether the Goods are suitable for
the Buyer’s purpose and if the Buyer’s product and use is compatible
with the Goods. EPI is not responsible if a bottle, jerrycan, or
other product is not suitable, or does not perform, for the Buyer’s
particular product or purpose, including storage, transport and use,
whether or not EPI has knowledge of how a Buyer intends to use the
Goods. The Buyer shall make an examination and test of any Goods
Delivered immediately upon Delivery, and failure of the Buyer to give
notice of any Claim within 10 working days after the Delivery shall be
deemed to be acceptance of the Goods as suitable.
6.8 Inadvertent Misrepresentation. The Buyer acknowledges that
the Goods are bought relying solely upon the Buyer’s skill and
judgment, and no representations have been given by or on behalf of EPI.
6.9 Testing. It is the Buyer’s responsibility to ensure that
EPI’s packaging, bottles, jerrycans, and any other product has been
tested to satisfy the Buyer that EPI’s products are suitable for the
Buyer’s use. These tests and trials will be solely at the Buyer's
own cost.
6.10 Buyer's responsibility for artwork, origination, checking
proofs and samples: For the avoidance of doubt, it is the
responsibility of the Buyer to approve all artwork and origination
before going to press. No claim may be brought against EPI in respect
of such artwork and origination.
6.11 Variation in Colour. EPI shall be under no liability whatever to
the Buyer for any variation (beyond the reasonable control of EPI) in
colours between the approved prototype and the finished Goods.
6.12 Variation to Earlier Information etc. When quotations are
based on information, documents, specifications, roughs, prototypes,
layouts, samples or dummies or printed, typewritten or other good copy,
any extra work or cost caused by any variation by the Buyer of the
Buyer’s original instructions or by the manuscript copy being, in EPI’s
opinion, poorly prepared or by the Buyer’s requirements being different
from those originally submitted or described, then the cost of such
variations may be charged to the Buyer and shown as extras on the
invoice.
6.13 Investigative Work. All work carried out whether experimentally,
investigative, production of samples, or otherwise at the Buyer’s
request will be charged to the Buyer.
6.14 Foreign Language and Tabulated Work. Any tabulated work and/or
foreign language included in the job but not contained in the
manuscript originally submitted for the purpose of estimating may be
charged to the Buyer and shown as extras on the invoice.
6.15 Purchased Inputs. Unless otherwise agreed, the Buyer shall bear
the cost of fonts, or colour proofs, or artwork, specially bought at
its request for the work.
6.16 Third Party Supplies. At EPI’s sole discretion, where the
performance of any contract with the Buyer requires EPI to obtain Goods
or Services from a third party, the contract between EPI and the Buyer
shall incorporate and shall be subject to the conditions of supply of
such Goods and Services to the Buyer, and the Buyer shall be liable for
the cost in full including EPI’s margin of such Goods or Services.
6.17 Proofs and Samples. Whilst every care is taken by EPI to carry out
the instructions of the Buyer, it is the Buyer’s responsibility to
undertake proof reading of the Goods and check and approve any samples
supplied. EPI shall be under no liability whatever for any errors,
problems or non-conformance not corrected by the Buyer in the final
proof reading or analysis by the Buyer of samples provided. Should the
Buyer’s alterations require additional proofs or samples these shall be
invoiced as an extra.
6.18 Non-Return of Special Orders. Goods printed or made to special
order, or on customer owned moulds, made to Buyer specification or
non-catalogue items are under no circumstances acceptable for credit or
return. Cancellation of orders for printed or special or non-catalogue
items will definitely not be accepted, once these orders are in
production.
6.19 Variation of Samples and Proofs. EPI is under no obligation to
provide samples of printed Goods ordered other than by virtual
(computerised) sample. Whilst every effort will be taken by EPI to
match virtual colours with physical colours, EPI will take no
responsibility for any variation between virtual sale samples and
either the virtual sale sample displayed on the Buyer’s computer and/or
the final product. Should a physical sample be required this will be
provided on request by the Buyer and will be charged for as an extra
including return freight, special set up charges and cost of the
product.
6.20 Variation from PMS and CMYK. While every effort will be taken by
EPI to print colours PMS and CYMK, EPI reserves the right to judge
defectiveness at EPI’s discretion based on industry standards.
6.21 Wear and Tear. EPI shall not be held liable for inks wearing off through general wear and tear.
6.22 Buyer Supplied Materials for Production. Where the Buyer supplies
packaging, pallets, materials, products, adequate quantities shall be
supplied to cover spoilage. These items shall not be counted or checked
when received unless requested by the Buyer in writing. An additional
charge may be made by EPI in respect of any such counting or checking
requested by the Buyer. It is deemed that if there is an
undersupply, this is due to the Buyer dispatching fewer than was
required.
6.23 Disposal of Remaining Product. In the case of property and
materials left with EPI without specific instructions, EPI shall be
free to dispose of them at the end of twelve (12) months after
receiving them and to accept and retain any proceeds gained from such
disposal to cover EPI’s costs in holding and handling such items.
6.24 Buyer Supplied Goods, Materials and Equipment. Where products,
materials or equipment are supplied by the Buyer to assist with the
provision of Goods EPI shall accept no liability for imperfect work
caused by defects in, or the unsuitability of, such products,
materials, or equipment for the work.
6.25 Change in Inputs Required. Any change or correction to any raw
material, film, bromides, artwork and/or any printing surface supplied
by the Buyer which is deemed necessary by EPI to ensure correctly
finished work shall be invoiced as an extra.
7. CONSUMER GUARANTEES ACT 1993 and FAIR TRADING ACT 1986
7.1
Supply in trade: The Buyer acknowledges that it is acquiring Goods for
the purposes of resupplying them in trade and accordingly the Consumer
Guarantees Act 1993 (CGA) does not apply. The Buyer indemnifies EPI
from and against any liabilities, losses, damages, costs or expenses of
whatever kind and nature which arise from any Claim against EPI as the
manufacturer of the Goods under the CGA.
7.2 Contracting out of FTA: The Buyer and EPI each agree, for the
purposes of section 5D of the Fair Trading Act 1986 (FTA) that they are
contracting out of sections 9, 12(A) and 13 of the FTA in respect of
all matters covered by these Terms.
7.3 Legal advice: The Buyer and EPI have each had the opportunity
to receive advice from a lawyer prior to contracting on these Terms and
agree that, in the context of these matters covered by these Terms, it
is fair and reasonable for them to be bound by the provisions of this
clause 7.
8. DEFAULT
8.1 Consequences of default: If an Event of Default occurs:
(a) EPI may suspend or terminate these Terms;
(b) any Amount Owing shall immediately become due and payable notwithstanding that the due date has not arisen; and/or
(c) to the extent permitted by law, each security interest
created by these Terms will become immediately enforceable and the
Buyer must return the Goods to EPI promptly on request or EPI may take
possession of and sell the Goods and EPI has all the rights of a
natural person in relation to the Goods and all other rights conferred
by law (including under Part 9 of the NZ PPSA) in relation to the
Goods.
8.2 Enforcement costs: EPI is entitled to recover from the Buyer
all costs that EPI incurs in connection with the exercise, protection
or enforcement of EPI’s rights under these Terms or conferred by law,
in each case on demand and on a full indemnity basis (including
solicitor client costs).
8.3 Exercise of rights: To the extent permitted by law, EPI will
not be liable in respect of any loss or damage which results from the
exercise, attempted exercise or non-exercise by EPI of its rights under
these Terms or conferred by law.
9. OWNERSHIP OF WORKS
9.1 Ownership of works: All works produced by or for EPI, or
required by EPI to make products (including, without limitation,
plastic blow and injection moulds, jigs, tooling, samples, prototypes,
designs, artwork, silk screens, plates, films, cutting dies and
moulding dies in whatever form) and any intellectual property in and to
such works, remain the exclusive property of EPI unless otherwise
agreed in writing, and the buyer has fully complied with their
obligations in that agreement. EPI may charge the Buyer for
maintenance, re-working and storage of such works.
9.2 Buyer tooling: Where the Buyer supplies, or reimburses EPI
for the cost of, but not limited to, plastic blow and injection moulds,
jigs, tooling, samples, prototypes, designs, artwork, silk screens,
plates, films, cutting dies and moulding dies, intellectual property,
in whatever form used in the manufacturing process:
(a) EPI will not be liable for any loss or damage (whether due to
the negligence of EPI, or its employees, agents, contractors or
otherwise) of any such item;
(b) EPI reserves the right to charge the Buyer for the re-working of any such item; and
(c) EPI reserves the right the Buyer will reimburse EPI for all storage and maintenance expenses.
9.3 Exclusive property: Where the Buyer supplies or covers the
entire cost, and Buyer fulfils all their agreed obligations, for the
items listed in clause 9.2 above, EPI agrees that the items remain, or
become, the exclusive property of the Buyer. Where the Buyer
contributes towards the cost of any item listed in clause 9.2 above
(but does not cover the entire cost of any such item), then the Buyer
agrees that such items remain, or become, the exclusive property of
EPI, and the transfer of these items to EPI will be deemed to have
occurred. EPI holds exclusive ownership of the items, and
subsequent products, until the buyer has discharged themselves fully of
their obligations under these terms and any further terms agreed
between both parties. If the buyer doesn’t fulfil these
obligations after one year, the ownership of the items, without offset
or compensation, will permanently transfer to EPI.
10. INTELLECTUAL PROPERTY
9.1 Ownership of
works: All Goods and works produced by or for EPI, or required by EPI
to make products (including, without limitation, plastic blow and
injection moulds, jigs, tooling, samples, prototypes, designs, artwork,
silk screens, plates, films, cutting dies and moulding dies in whatever
form) and any intellectual property in and to such Goods and works,
remain the exclusive property of EPI unless otherwise agreed in
writing, and the Buyer has fully complied with their obligations in
that agreement. EPI may charge the Buyer for maintenance,
re-working and storage of such Goods or works.
9.2 Buyer tooling: Where the Buyer supplies, or reimburses EPI
for the cost of, but not limited to, plastic blow and injection moulds,
jigs, tooling, samples, prototypes, designs, artwork, silk screens,
plates, films, cutting dies and moulding dies, intellectual property,
in whatever form used in the manufacturing process:
(a) EPI will not be liable for any loss or damage (whether due to
the negligence of EPI, or its employees, agents, contractors or
otherwise) of any such item;
(b) EPI reserves the right to charge the Buyer for the re-working of any such item; and
(c) EPI reserves the right to require that the Buyer will reimburse EPI for all storage and maintenance expenses.
9.3 Exclusive property: Where the Buyer complies with clause 9.2
above, EPI agrees that the items remain, or become, the exclusive
property of the Buyer. Where the Buyer contributes towards the cost of
any item listed in clause 9.2 above (but does not cover the entire cost
of any such item), then the Buyer agrees that such items remain, or
become, the exclusive property of EPI, and the transfer of ownership of
those items to EPI will be deemed to have occurred. EPI will hold
exclusive ownership of the items, and subsequent products, until the
buyer has discharged themselves fully of their obligations under these
terms and any further terms agreed between both parties. If the
buyer doesn’t fulfil these obligations after one year, the ownership of
the items, without offset or compensation, will permanently transfer to
EPI.
11. USE OF INFORMATION AND PRIVACY LAW
10.1
EPI Intellectual Property (IP): Any technical information, knowledge or
processing methods at any time transmitted either orally,
electronically or in writing by EPI to the Buyer and any samples,
designs and artwork produced by or for EPI will remain EPI’s property
and will be considered absolutely confidential by the Buyer and the
Buyer will not use them for any purpose nor sell, transfer or divulge
them in any manner to anyone without EPI’s prior written consent.
10.2 Ownership of IP. Where EPI has designed, drawn or developed Goods
for the Buyer, then the copyright and ownership in any knowledge and
designs and drawings and documents and any subsequent products shall
remain the property of EPI unless otherwise agreed in writing between
EPI and the Buyer and the Buyer has fulfilled all their obligations
under that agreement.
10.3 Use of IP and Products for Marketing. The Buyer agrees that EPI
may (at no cost) use for the purposes of marketing or entry into any
competition, any documents, designs, drawings, products or Goods which
EPI has created for the Buyer.
10.4 Warranty and indemnity against third party claims: The Buyer
warrants that the use by EPI of any designs or instructions supplied by
the Buyer will not infringe the patents, trademarks, designs or
copyright (“intellectual property”) of any other person and the Buyer
agrees to indemnify EPI against any Claim relating to or arising from
the infringement of any intellectual property of any other person.
10.5 Termination or suspension for infringement: If at any time a
Claim is made against EPI or EPI becomes aware that a Claim is likely
to be made against EPI for infringing any intellectual property or
contributing to any such infringement by EPI or any other person as a
result of EPI’s use of designs or instructions supplied by the Buyer,
EPI may immediately terminate or suspend these Terms.
11. USE OF INFORMATION AND PRIVACY LAW
11.1 Buyer information: EPI and its Related Companies or any
other person or company it commissions (including, but not limited to,
credit or debt collection agencies, private investigators, and
marketing agencies) may collect from the Buyer (and Related Companies
of the Buyer) any information about the Buyer, and hold and use such
information in accordance with the Privacy Act 2020.
11.2 Consequence of non-disclosure: If the Buyer does not provide
information requested by EPI, EPI may not be able to process the
Buyer’s credit application and/or supply Goods to the Buyer on these
Terms.
11.3 Obligation to keep information up-to-date: The Buyer must
notify EPI of any change in circumstances that may affect the accuracy
of the information provided by the Buyer to EPI or its Related
Companies.
11.4 Buyer confidentiality: The Buyer agrees not to disclose any
Terms, or any special arrangements, or agreements, or any information
relating to price, products, quantities, Intellectual Property, supply
agreements, and any other items or information EPI deems
confidential. For purposes of clarity, all information is to be
treated as confidential, unless the Buyer is notified in writing by
EPI. This does not apply if the information being shared is
within the Buyer’s company, or Related Company, a professional advisor,
or as required by law or the regulations of a registered securities
exchange, and those people within the Buyer’s company or related
companies, advisors and regulators are to act as if they were the Buyer
and treat such information with exactly the same level of
confidentiality.
12. MEDIATION
12.1 Mediation: Either party may require
any dispute arising which has not been resolved within 20 business days
to be referred to mediation. The mediator shall be appointed by both
parties or, where the parties cannot agree within 14 days, appointed by
the chairperson or any other office holder of the New Zealand chapter
of LEADR. The mediator will conduct the mediation in accordance with
the guidelines agreed between the parties or, if the parties cannot
agree, within 14 days following appointment of the mediator, the
guidelines set by the mediator. The costs and expenses of the mediator
shall be shared by the parties equally.
12.2 Urgent Relief: The provisions of clause 12.1 shall not limit or
affect the right of EPI to apply to a court at any time for any interim
or preliminary relief in respect of the relevant dispute
13. GENERAL
13.1 Force Majeure: EPI will
not be liable for any delays or failure in the performance of any
obligation under these Terms if the cause of the delay or failure is
beyond its reasonable control.
13.2 Entire Agreement: These Terms constitute the entire
agreement between the parties in relation to the subject matter and
supersede all previous agreements and undertakings, whether oral or
written in relation to the matters covered by these Terms. Unless
otherwise agreed in writing by the parties, any Goods supplied by EPI
to the Buyer will be supplied on these Terms only. If any Order
submitted by the Buyer (whether in writing, verbally or otherwise)
purports to be made on or subject to terms and conditions other than
these Terms, the Buyer agrees that such terms and conditions are to be
disregarded. Any change to these Terms may only be amended with
EPI’s consent in writing.
13.3 Acceptance of Terms: It is agreed that the Buyer, or
potential Buyer as interpreted solely by EPI, has accepted these terms
in full, and is immediately bound by them, jointly and severally, when
the Buyer places the order for Goods or other similar business
agreements and interactions, for example, but not limited to, accepting
goods, storage of moulds, soliciting product or business information,
and enquires regarding the supply of Goods that may or may not be
ordered.
13.4 Waiver: If EPI exercises or fails to exercise or delays
exercising any right or remedy available to it, this will not prejudice
EPI’s rights in exercising that or any other right or remedy unless
expressly specified in writing and signed by EPI.
13.5 Assignment: The Buyer must not transfer or assign its rights
under this contract to anyone else without EPI’s prior consent in
writing. Any change in 50% or more of the direct or indirect
shareholding of the Buyer or in the Buyer’s effective control will be
deemed an assignment. EPI may assign, novate or transfer any of its
rights or obligations under these Terms (including any part of the
Buyer’s indebtedness to EPI) and the Buyer agrees to such assignment,
novation or transfer. Each assignee or transferee is to have the same
rights against the Buyer under these Terms as if named as EPI.
13.6 Amendments: EPI may amend these Terms from time to time, and
the Buyer (and other parties as per 14.2 below) immediately agrees upon
and is bound by them, when written notice has been sent (by email,
including in the signature panel, on packing slips, invoices,
statements and other correspondence, directing the recipient to the new
Terms and Conditions, as published on EPI’s Website). By
continuing to order Goods, and continued interaction with EPI, the
Buyer (and other parties as per 14.2 below) will be deemed to have
accepted these Terms (as amended). Mislaying, not receiving the
email, for reasons including, but not limited to being caught by
antispam programmes, does not void this clause, and the sole act of EPI
sending the email, or other correspondence, is deemed to have informed
the Buyer (and other parties as per 14.2).
13.7 Sub-Contracting: EPI may license or sub-contract all or any part
of its rights and obligations without the Buyer’s consent, this
includes third party manufacturers supplying the Goods, or purchasing
the ordered product and reselling it to the Buyer.
13.8 Power to Enter into this Agreement: The Buyer warrants that it has
the power to enter into this agreement and has obtained all necessary
authorisations to allow it to do so, it is not insolvent, and that this
agreement creates binding and valid legal obligations on it.
13.9 Governing law: These Terms will be governed by the laws of New
Zealand and the parties submit to the exclusive jurisdiction of the
Courts of New Zealand.
14. WORDS USED IN THESE TERMS
14.1
“Amount Owing” means, at any time, all amounts owing by the Buyer to
EPI under these Terms, or if the context specifically provides, in
respect of specific Goods.
14.2 “Buyer” means the person, as defined by clause 14.9,
purchasing the Goods from EPI pursuant to these Terms, including that
person’s successors and assignees. It also includes a potential
Buyer, their agents, as interpreted solely by EPI, or a business or
individual that interacts with EPI with regards to enquires about
products and business. For example, but not limited to, accepting
goods, storage of moulds, soliciting product and services or business
information, and enquires regarding the supply of product or service
that may or may not be ordered.
14.3 “Claim”:
(a) means any demand or assertion of right to compensation or
other legal or equitable remedy (whether in contract, tort, including
negligence, statute or otherwise) arising out of or relating to the
supply of Goods; and
(b) includes any proceeding in any tribunal, court or other forum arising out of or relating to the supply of Goods.
14.4 “Delivery” means delivery of the Goods as determined pursuant to clause 4 of these Terms.
14.5 “Event of Default” means an event where:
(a) the Buyer fails to comply with these Terms (including,
without limitation, where the Buyer fails to pay for Goods on or before
the due date);
(b) the Buyer or any Related Company of the Buyer fails to comply
with any Related Terms (including, without limitation, fails to pay any
amounts before the due date); and/or
(c) the Buyer becomes bankrupt, goes or is put into liquidation,
has a receiver or statutory manager appointed over its assets or any of
them, becomes insolvent, ceases to carry on its business, makes any
composition or arrangement with its creditors, or is deemed or
perceived unable to pay its debts when they fall due.
(d) EPI believes that any of the events above may occur, or are being
considered, in the near future, as determined solely by EPI.
14.6 “Goods” means all goods and related services, transport,
warehousing, sub-contracted works, printing, origination, design,
intellectual property, rent, legal fees and packaging supplied to the
Buyer by EPI under these Terms and includes any services forming part
of the supply of such Goods.
14.7 “Order” means an order placed by the Buyer with EPI for the purchase of Goods.
14.8 “Ownership” means the property in and legal and beneficial ownership of the Goods.
14.9 “Person” includes a corporation, association, firm, company, partnership or individual.
14.10 “PPSA” means the New Zealand Personal Property Securities
Act 1999. Terms defined in the PPSA will have the same meaning where
used in these Terms unless the context otherwise requires.
14.11 “Related Company” has the meaning given to that term in section 2(3) of the Companies Act 1993.
14.12 “Related Terms” means any other terms of sale, and as the
context requires, each contract entered into between the Buyer or a
Related Company of the Buyer and EPI or a Related Company of EPI (as
the case may be) and each invoice issued by EPI or a Related Company of
EPI to the Buyer or a Related Company of the Buyer (as the case may be)
for Goods into which the relevant terms of sale are incorporated.
14.13 “Terms” means these terms and conditions of trade as amended from time to time.
15. INTERPRETATIONS:
15.1
References to legislation include as amended, re-enacted or substituted
and any statutory instruments, regulations and orders issued under such
legislation.
15.2 Whenever “include” or “for example” or any form of those
words are used, it must be construed as if it were followed by
“(without being limited to)”.
15.3 “Business Day” of “Day” excludes: Saturday, Sunday, Public
Holidays, and the period between and including the 27th of December and
14th of January.
This version of our General Terms and Conditions of Trade:
© 9 April 2022, Passion Plastic EPI Limited, 225 Kaikorai Valley,
Bradford, Dunedin 9011, New Zealand. Ph:(03) 453 5947 (from
overseas +64 3 453 5947) email office@epiplastics.co.nz
Please note. These Terms & Conditions of Trade are regularly
updated. The latest version will be published on our website
www.epiplastics.co.nz
End of Terms
