Facteon Terms and Conditions - New Zealand
1. Definitions: For the purposes of these Conditions, the following terms have the following meanings:
a. “Acceptance Tests” means the tests, agreed between the parties, for the purpose of testing whether the Products satisfy the Specifications; “Acceptance Testing” has a corresponding meaning;
b. “Acceptance” means satisfactory completion of the Acceptance Tests in relation to the Product; “Accept” and “Accepted” have corresponding meanings;
c. “Budget Estimate” means a non-binding estimate provided by us, describing the Products to be manufactured and supplied by us, and the Services to be provided by if (if applicable), and setting out the price for such Products and Services. A Budget Estimate is not an offer capable of acceptance by the Customer;
d. “Commercial Schedule” means the Specific Commercial Terms Schedule agreed between the parties;
e. “Conditions” means these general terms and conditions of supply;
f. “Force Majeure Event” means an event or circumstance beyond a party’s reasonable control, which results in or causes the failure of such party to perform any of its obligations under this Agreement. Such events may include, but are not limited to:
(i) acts of God;
(ii) strike, lockout or other industrial disturbance;
(iii) acts of a public enemy, declared or undeclared war, threat of war, terrorist act, blockade, revolution, riot, insurrection, civil commotion, public demonstration, sabotage, acts of vandalism, epidemics or disease;
(iv) acts of animals, lack of adequate fuel resources, accidental collisions, explosion, acts of aircraft, motor vehicles or trains, fault or failure of any plant, apparatus or equipment,
provided that lack of funds will not be considered a Force Majeure Event;
g. “Intellectual Property” means any patent, trademark, service mark, copyright, moral rights, right in a design, know-how and all or any other intellectual or industrial property rights whether or not registered;
h. “Market Circumstances” means such circumstances affecting the market generally or the particular supply chain relevant to this Agreement, as determined by us;
i. “Quotation” means the quotation form provided by us, describing the Products to be manufactured and supplied by us, and the Services to be provided by us (if applicable), and setting out the price for such Products and Services, either in the form of a proposed Specific Commercial Terms Schedule or other form of quote. A Quotation is an offer which is stated to be capable of acceptance by the Customer;
j. “Taxes” or “Tax” includes all forms of taxation and statutory, governmental, state, principal, regional, local governmental or municipal impositions, duties, contributions and levies of New Zealand, the Customer’s jurisdiction or elsewhere in the world, whenever imposed and all penalties, charges, costs and interest relating thereto and, without limitation, all employment taxes and any deductions or withholdings of any sort.
2. Quotation: We may provide you with a Budget Estimate prior to providing a Quotation. If you wish to progress with an order following the Budget Estimate, we will provide you with a Quotation. A Quotation will lapse and be invalid if it has not been accepted by you within 30 days following the date of the Quotation unless it has been reconfirmed by us in writing. The Quotation is exclusive of all freight, shipping and insurance charges unless otherwise specified in the Quotation. We may withdraw the Quotation at any time before acceptance by you. The Quotation will not be binding on us if the Quotation was given based on incomplete, inaccurate or misleading information provided by you.
3. Price: The Charges for the Products and Services will be as set out in the Commercial Schedule or as otherwise agreed. All prices are in New Zealand dollars and exclusive of Taxes, unless otherwise stated, and the amount of any such Tax, shall be added to the price payable by the Customer.
4. Orders: Your acceptance of the Quotation will create a legally binding order by you for the Products, which will be reflected in a completed Commercial Schedule and will incorporate these Conditions, unless we expressly agree in writing with you to enter into an agreement with you on different terms and conditions, in which case the order will consist of the Quotation or Commercial Schedule (as applicable) and the negotiated terms and conditions . You may not cancel any order without our written consent (which we may withhold at our discretion), and such consent (if any) may be given on such terms and conditions as we may determine at our discretion (which will usually ensure that we recover from you all costs incurred or committed in respect of the cancelled order and that you pay for all work done on, or in relation to, the Product up until the cancellation date at a market rate inclusive of standard costs plus overheads).
5. Payment terms:
a. We will invoice you for the Products prior to delivery of the Products, or in such other manner or upon such other milestones as may be specified in the Commercial Schedule. You will ensure that all payments for the Charges will be made at the times and in the manner set out in the Commercial Schedule.
b. You may not withhold payment or make any deductions from any amount owing to us without our prior written consent.
c. If you default on payment of any amount due to us, without prejudice to any of our other rights and remedies, you must pay to us interest on the unpaid amount at the rate of 2.5% per month (or part thereof) computed on a monthly basis from the date on which such amount should have been paid until the date on which actual payment is received, compounding monthly.
a. Unless otherwise specified in the Commercial Schedule the terms of delivery of the Products will be DAP, as that term is defined in Incoterms 2020 published by the International Chamber of Commerce.
b. You will pay all freight and insurance costs associated with delivery unless the parties have agreed in writing that we will pay such costs.
c. We undertake to use reasonable commercial endeavours to deliver the Products in accordance with the Timetable. However to the fullest extent permitted by law, we will not be liable to you, or any other party, for loss resulting from delay.
d. In the event of any delay by you in taking delivery of the Products, we will be entitled to charge you for our reasonable costs incurred in storing the Products.
7. Force Majeure Event or Market Circumstances:
a. Where either party is unable, wholly or in part, by reason of a Force Majeure Event to carry out any obligation under this Agreement, or where, by reason of a Force Majeure Event or Market Circumstances, it is in our reasonable opinion uneconomic for us to supply the Product under this Agreement, and that party:
(i) gives the other party prompt written notice of the nature and expected duration of, and the obligation affected by, the Force Majeure Event or the Market Circumstances; and
(ii) uses reasonable endeavours to mitigate the effects of the Force Majeure Event or the Market Circumstances on that party's obligations under this Agreement,
that obligation is suspended so far as it is affected by the Force Majeure Event or the Market Circumstances during its continuance.
b. If by reason of a Force Majeure Event or the Market Circumstances, the delay or non-performance of either our or the Customer's obligations shall continue for more than 90 consecutive days, either party may terminate this Agreement (and/or any order to the extent affected by the Force Majeure Event or the Market Circumstances) by written notice to the other party.
8. Risk and Title: Risk in the Products will pass to you once they are delivered to you. However, title in (and ownership of) the Products will not pass to you until all Products supplied to you by us have been paid for in full. Until such title passes:
a. you will only sell or dispose of the Products in the ordinary course of your business and will hold the proceeds of such sale or disposal in a separate account on trust for us; and
b. we may at any time require the Products to be returned to us at your cost, and will be entitled to enter your premises or any other place where the Products are situated at any time in order to take possession of them, and you will indemnify us against any claim or demand that may be brought in relation to such entry and taking of possession.
Part payment of any amount for the Products does not convey any part right, title, and interest in the Products.
9. Specifications and materials:
a. We will manufacture the Products based on Specifications provided by you [and/or agreed with you]. You will be responsible for making sure all such Specifications are complete and accurate in all respects and include details of the materials to be used in the Products.
b. If you provide any materials for the Products those materials must comply with the relevant Specifications. You will be responsible for the cost of all materials used in any try-outs, or any commissioning or Acceptance Tests.
c. In the case where any item of the Product is manufactured and supplied by us in reliance upon designs and Specifications supplied by you, you agree to indemnify and keep us indemnified, from and against all and any costs, claims or damages of any kind suffered or incurred by us as a result or consequence of any allegation or proceedings threatened or taken by any third party as to infringement of Intellectual Property rights of any kind in relation to the Product supplied.
10. Intellectual property rights:
a. Any Intellectual Property provided by either party pursuant to the Agreement which is owned by that party (or its third party licensors) prior to the Agreement being signed or which is developed independently of the Agreement (“Pre-existing IP”), and any modification of such Pre-existing IP developed by either party, will be and remain the property of the party owning the Pre-existing IP. Without limiting the foregoing, each party, or its third-party licensors, retain ownership of all Intellectual Property rights in its documentation, software, inventions and other materials in existence as at the date of the Agreement, or developed independently from the work the subject of the Agreement.
b. Subject to clause 10(a), all Intellectual Property rights created by us or on behalf of us arising out of the provision of the Products or Services, will vest on its creation in us and be owned by us. Without limiting the foregoing, all Intellectual Property rights in the Products, and in any plans or drawings or prototypes of the Products created by us, and any inventions made by us in the course of designing and manufacturing the Product, will be exclusively owned by us. If any such Intellectual Property rights vest in you for any reason, you hereby assign to us all of your rights, title and interest in and to such Intellectual Property rights.
c. You acknowledge that the Intellectual Property in the Products and all related drawings and written material (including instruction and operating manuals) belongs to us and you will not dispute such ownership.
d. Software will be licensed to you on the terms provided with the relevant deliverable or as otherwise agreed between the parties in writing. Any such rights conferred on you will only take effect on payment in full of the price payable for the relevant deliverable and Product.
e. Subject to clause 10(d), the supply of the Product shall imply a licence to you to use the Product for your own internal business use for which it has been supplied to you by us, but for no other purpose whatsoever. No other licence is given or to be implied. Nothing in this Agreement shall be read or construed as creating or acknowledging any exclusive right in favour of the Customer in any item of the Product.
f. The parties’ rights and obligations under this clause 10 will survive termination of this Agreement, except that we can immediately terminate the licences described in this clause 10 if you breach this Agreement.
a. You will keep strictly confidential any information that is disclosed or provided by us to you, excluding any information that is already in the public domain at the time that it is disclosed or becomes part of the public domain other than as a result of an unauthorised disclosure by you.
12. Support and Maintenance:
a. The Customer acknowledges that unless expressly agreed with us, we are under no obligation to provide support and maintenance services in relation to the Products.
b. To the extent Support and Maintenance Services in relation to specified Products are expressly agreed to be included in the Services, the following provisions apply to such Services.
c. Subject to payment of all applicable Charges for such support (“ Support Charges”), we will provide to the Customer the agreed Support and Maintenance Services during the agreed support period as more particularly described in item 11 of the Commercial Schedule.
d. We may charge additional fees at our then current hourly rates for:
(i) support provided outside agreed support hours;
(ii) support required due to fluctuations in external power supply;
(iii) support required due to failure by the Customer to maintain the Product in the environmental conditions specified by us;
(iv) support required due to improper use or misuse of the Product, including failure to adhere to any written or verbal operating instructions or procedures laid down by us;
(v) preparation and/or provision of additional or replacement parts;
(vi) unauthorised maintenance, alteration or modification made to the Product by any person other than us.
e. The Customer will pay all reasonable travel and accommodation expenses incurred by us in relation to visits to the Premises or any other site for the purpose of providing support and maintenance services.
f. We may increase the Support Charges for the Product from time to time upon one month's written notice to you.
g. Nothing in this Agreement will require us to carry out, without extra charge, any alteration or modification to the Products.
a. You warrant as follows:
(i) all information provided by you to us is true and correct; and
(ii) our use of the Specifications provided by you under clause 9(a), and our manufacture and supply to you of Products based on those Specifications, will not infringe the Intellectual Property rights of any third party.
b. We warrant that:
There are no liens or encumbrances in the Products that would prevent title to the Products passing to you upon payment pursuant to clause 8; and for the period from the earlier of (i) Acceptance of the Products and (ii) use of the Products in production mode (“ Warranty Commencement Date”), until the end of any applicable Warranty Period specified in the Commercial Schedule, the Products will comply substantially with the Specifications detailed in the Commercial Schedule. If no Warranty Period is specified in the Commercial Schedule, the Warranty Period under this clause 13(b) will be 12 months from the Warranty Commencement Date.
c. No warranty is given by us for the Products where any failure to comply with such warranty or defect in the Product results from any of the following:
(i) any errors or omissions in the Specifications provided by you to us under clause 9(a);
(ii) use, installation, modification or alteration of the Products other than as recommended or authorised in writing by us;
(iii) normal wear and tear or damage during normal operation of the Products or replacement of any consumables used in the Products;
(iv) physical damage caused to the Products following Delivery;
(v) an external cause including natural disaster, fire, accident, neglect, misuse, vandalism, water, power surge or spike;
(vi) use of a Product for other than its intended purpose;
(vii) use with or connection of a Product to items not approved by us;
(viii) a change made to the Product or to the operating environment, or any maintenance or attempted repair, unless made by us or on our behalf; or
(ix) relocation, configuration, reconfiguration or other change by you of the Product or other equipment with which the Products interface.
d. The warranty in clause 13(b) is only applicable to the extent that:
(i) the Product is serviced in accordance with our reasonable instructions, manuals and in accordance with good engineering practice;
(ii) the Product is operated in the normal course of business and is not subject to misuse, neglect, negligence, improper testing, improper handling, abnormal physical stress;
(iii) the Product is kept in suitable premises and under suitable conditions and the Buyer only permits trained and competent personnel to use it and follow any operating instructions the Seller may give from time to time.
e. Any attempt by any person to repair any Products without our prior written authorisation will invalidate the warranty in clause 13(b).
f. Your sole remedy against us for Products that do not comply with the warranty in clause 13(b) will be (at our option and cost) for us to repair or replace such Products, or give to you a full credit or refund for the Products provided that:
(i) if requested by us, you give us the opportunity to investigate the alleged non-compliance; and
(ii) you must notify us in writing of the non-compliance within the applicable warranty period, and no later than seven days following the date you first became aware of the non-compliance.
14. No implied warranties: You acknowledge that except as expressly provided in these Conditions, we give no warranties in relation to the Products, either express or implied, including but not limited to any implied warranties relating to quality, fitness for any particular purpose or ability to achieve a particular result. All statements, technical information and recommendations about the Products are believed to be reliable but do not constitute a guarantee or warranty.
15. Your Other Obligations: In addition to paying the Charges you:
a. will comply with the Additional Customer Obligations set out in the Commercial Schedule and any other agreed obligations;
b. will provide promptly all relevant information, directions, assistance and co-operation as and when reasonably required by us; and
c. acknowledge that your failure to attend pre-acceptance at the scheduled time at our premises or your failure to provide materials required to be provided by you may result in delay to the delivery times stipulated under this Agreement and may result in a variation to this Agreement and the Charges.
a. You will conduct the Acceptance Tests, in accordance with the Timetable and within a reasonable time of notification by us that the Products are ready for Acceptance Testing.
b. Following completion of Acceptance Tests, you must notify us immediately in writing whether the Product has:
(i) passed its Acceptance Tests, in which case the Product will be taken to be Accepted; or
(ii) failed one or more of its Acceptance Tests, in which case we will correct the failures.
c. If you put a Product to commercial use it is deemed to have been Accepted on the first day of such use, whether or not a defect is notified to us.
a. Subject to the continued payment by you of all applicable Charges and other amounts agreed, we shall, during the Term, provide the Services.
b. Where we are supplying Services at the Premises you must:
(i) ensure that you provide us with reasonable access to the Premises and the Product to enable us to provide the Services (you recognise that restricting our access may cause delay and incur additional costs); and
(ii) comply in all respects with any and all applicable laws, including health and safety legislation.
18. Consequential loss: In no event will we be liable (whether in contract, tort, negligence or in any other way) to you for:
a. loss of revenue or profit, loss of anticipated savings, loss of goodwill or opportunity, loss of production, loss or corruption of data or wasted management or staff time; or
b. loss, damage, cost or expense of any kind whatsoever that is indirect, incidental, consequential, or of a special nature,
whether arising directly or indirectly from any Products or Services supplied by us to you or otherwise, even if we had been advised of the possibility of such damages, and even if such loss, damage, cost or expense was reasonably foreseeable by us.
19. Maximum liability: In no event will our total aggregate liability (whether in contract, tort, negligence or in any other way) under any claim of whatever nature arising directly or indirectly from the Products or Services supplied by us to you, any other breach of our obligations or otherwise, exceed the price paid by you for the specific Products and/or Services to which the relevant claim relates.
20. Exception: None of the exclusions or limitations set out in these Conditions will have the effect of limiting or excluding any form of liability where such liability cannot be so limited or excluded under applicable law.
21. Termination: Without affecting any other right or remedy available to it, either party may terminate this Agreement or a specific order with immediate effect by giving written notice to the other party if the other party:
a. fails to make a payment when due and remains in default not less than 7 days after being notified to make such payment;
b. is in material breach of this Agreement and fails to remedy that breach within 14 days after being notified to do so; or
c. has a receiver, liquidator, administrator, or statutory manager (or any other similar official) appointed or in the terminating party’s reasonable opinion that other party cannot or will not be able to pay its debts as they fall due.
If this Agreement is terminated due to breach by you, upon termination you shall pay us for all Services and for all work done on or in relation to the Product up until the termination date at a market rate inclusive of standard costs plus overheads.
22. Default: Following any default by you under these Terms, we (or our agent(s)) shall be entitled to do any or all of the following:
a. Suspend supply of any Product and/or Services; and/or
b. call up all amounts owing by you to us as immediately due and payable.
a. You may request, or we may suggest, a change or addition to the Products, Services, Specifications, Timetable or other aspects of the supply (“Change Request”). The party submitting the Change Request will provide all such information and assistance as is reasonably required to enable the other party to consider and deal with the Change Request. Should a Change Request be made, the parties will discuss the Change Request within a reasonable time (taking into consideration the urgency of the Change Request), and we will confirm in writing the following matters based on the information provided in the relevant Change Request:
(i) the amounts proposed to be charged by us for implementing the Change Request;
(ii) any changes to the terms and conditions of this Agreement which may be required to implement the Change Request;
(iii) any impact which implementation of the Change Request may have on our ability to satisfy the Specifications or Timetable; and
(iv) any other information which may be relevant to your consideration of the Change Request.
b. Without limitation, we may decline to proceed with your Change Request if in our reasonable opinion it is outside our normal business, we are unable to obtain adequate skills or resources to complete the Change Request or the Change Request is not feasible.
c. If agreement is reached to the Change Request, the Change Request and, if appropriate, a variation to this Agreement shall be signed by the respective party representatives. The Change Request, together with all consequential changes to the contractual arrangements between the Parties, shall then be deemed incorporated into and constitute a variation to this Agreement.
d. We shall have no obligation to proceed based on any Change Request until such Change Request has been agreed by both Parties and confirmed in writing.
24. Personal Property Securities Act 1999
a. The Customer grants to us a security interest in all present and after acquired Products supplied by us to the Customer and all proceeds of the Products for the purposes of the Personal Property Securities Act 1999 (“ PPSA”) as security for the payment of the Products and any amount owing by the Customer to us from time to time, until such time as the Products have been fully paid for by the Customer.
b. The Customer acknowledges that it has received value as at the date of the first delivery of Products under this Agreement and that nothing in this Agreement is an agreement that a security interest created herein attaches at a later time than the time specified in section 40(1) of the PPSA.
c. Each security interest created under this Agreement is a continuing security, notwithstanding any intermediate or milestone payments or settlements.
d. The Customer shall provide all information and do all things which we may reasonably require to register and perfect a first ranking security interest in favour of us over the Products on the Personal Property Securities Register established pursuant to the PPSA.
e. The Customer:
(i) shall not consent to or enter into any agreement which permits any supplier or other person to register a security interest in respect of the Products or their proceeds subject to our security interest, which ranks in priority to our rights as first-ranking perfected security holder in the Products and their proceeds;
(ii) shall notify us in writing of a change of its name, address or contact at least 14 working days prior to the date on which the change of name becomes effective;
(iii) shall provide any information we reasonably require to complete a financing statement or a financing change statement; and
(iv) waives any right to receive a copy of any verification statement, financing statement or financing change statement under the PPSA.
f. The Customer agrees that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to this Agreement. The Customer agrees that it has none of the rights referred to in section 107(2)(a) to (i) of the PPSA.
g. The Customer agrees that its rights as debtor in sections 116, 120(2), 121, 127, 129 and 131 of the PPSA shall not apply to this Agreement.
a. If there is any inconsistency between the provisions set out in the Commercial Schedule and these Conditions, and the provisions of any other schedule or document, then the order of precedence to the extent of the inconsistency will be:
(i) the Commercial Schedule;
(ii) these Conditions;
(iii) the provisions of the schedule or other document.
b. If there is any inconsistency in relation to drawings and Specifications, then the order of precedence to the extent of the inconsistency will be:
(i) figured dimensions on drawings take precedence over scaled dimensions;
(ii) drawings to a larger scale take precedence over drawings to a smaller scale;
(iii) drawings showing particular parts of a Product take precedence over drawings for more general purposes;
(iv) drawings take precedence over written Specifications; and
(v) drawings and written Specifications take precedence over the schedule of quantities, if any.
a. These Conditions embody the entire agreement of the parties in relation to the subject matter of these Conditions and supersede all prior understandings, communications and representations between the parties, whether oral or written.
b. You may not assign, transfer, sub-license or sub-contract any of your rights or obligations under these Conditions, without first obtaining our written consent.
c. No amendment to these Conditions will be effective unless in writing and signed by an authorised representative of us.
d. Where any provision of these Terms becomes illegal, invalid or unenforceable the remaining provisions of the Terms will be unaffected.
e. The parties are independent contractors, not employees, agents or representatives of each other. Neither party has the right to bind the other party or any other party to any agreement.
f. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the supply of any Products under these Conditions.
g. These Conditions will be governed by the laws of New Zealand, and the parties submit to the non-exclusive jurisdiction of the Courts of New Zealand.
h. The Customer consents to receive notices given pursuant to these Terms by email. Any notice to be given in terms of the Agreement must be made in writing or email sent to the registered office or principal place of business of the other party or to such other address as may be notified by either party to the other from time to time. Any communication by email will be deemed to be received when transmitted to the correct email address of the recipient. Any other communication in writing will be deemed to be received when left at the specified address of the recipient or on the [third day following the date of posting/ fifth day following the date of posting by international first-class airmail]. The initial email and physical address of the Customer is set out in Item1 of the Commercial Schedule and of Facteon is as follows:
Address: 52 Allens Road, East Tamaki, Auckland 2013, New Zealand
Phone: 09 393 9600
i. This Agreement may be executed in two or more counterparts each of which will be deemed an original, but all of which together will constitute one and the same instrument. A party may enter into this Agreement by signing any counterpart.