Terms And Conditions of Supply
RX Plastics Ltd (“the company”) products and services (“goods”) are supplied subject to the following Terms and Conditions of sale which shall prevail despite any indication to the
contrary given by any person acting or purporting to act on this company’s behalf. Any variations to the conditions set out below require our written confirmation (including all
representations or understandings which may conflict with any of them).
1.1 All goods are supplied to Buyers for business purposes and accordingly the Consumer Guarantees Act 1993 does not apply to these conditions of sale.
2.1 Receipt of an order will be deemed acceptance by the Buyer of these terms, notwithstanding anything stated to the contrary in the Buyer’s enquiries on the Buyer’s order.
3.1 Goods are offered subject to availability and are sold on the basis that the place of delivery is the Buyers premises. Delivery to the Buyer’s nominated carrier or to a carrier
appointed by the Company shall be deemed delivery to the Buyer. Where the Buyer requires delivery other than their own premises (store), the Buyer accepts all liability for loss or
damage and subsequent payment/s.
4. Freight and Insurance:
4.1 Freight and transit insurances are to the Buyer’s account unless specified to the contrary.
5.1 The Customer may not assign all or any of its rights or obligations under this contract without the prior written consent of the Company.
6.1 The failure of the Company at any time to enforce any provision of this agreement shall not be construed as a waiver of any such provision or shall not in any way affect the validity
of this contract or any part thereof. All waivers shall be effective only in writing by the Company.
7.1 Unless otherwise agreed in writing or specifically prescribed by an applicable specification or standard, all goods are sold subject to:
(a) manufacturers normal tolerances, variations and limitations in respect of dimension, mass, straightness, composition, mechanical properties, surface and internal conditions
chemical composition and quality; and
(b) diversions from such tolerances, variations and limitations consistent with practical testing and inspection methods; and
(c) any discrepancy in quantity not exceeding 10% from that ordered; and
(d) the Company’s normal packaging practice.
8.1 All prices are net on delivery of the goods to the custody of the first Carrier.
8.2 Payment is due on the 20th on the month following date of delivery to the custody of the first carrier, except that for goods supplied direct from overseas on indent or specific
order for the customer payment is due on receipt of the Company’s invoice, or bill of lading, or other negotiable instrument, whichever is presented first. The Company reserves
the right to treat each separate delivery as a separate contract for the purposes of payment.
9. Default of Payment:
9.1 It is acknowledged that the relationship between the Company ntil the Buyer is that of vendor and purchaser for cash, and that this clause has effect only when the buyer
defaults on the obligation to pay for the goods.
9.2 The Buyer agrees to pay interest on all sums outstanding at 2.5% per month from the date of default (i.e. when payment becomes due and is not made) until payment is made.
9.3 If a solicitor or debt collector is instructed by the Company the Buyer agrees to pay the solicitor or debt collector’s reasonable fees and disbursements as charged to the
Company in full.
9.4 All payments by the Buyer shall be applied first in the reduction of interest and costs due pursuant to 9.2 and 9.3 and the balance shall then be applied in reduction of amounts
due under 8.2.
9.5 The Company shall be entitled at any time to assign to any other person (being a related company of RX Plastics Ltd within the meaning ascribed to that term by
section 2 (3) of the Companies Act 1993) all or any part of the debt owing to the Company and notwithstanding any rule of common law or equity to the contrary or the
appointment of a liquidator receiver and/or manager over the Buyer or the assets thereof, the assignee shall be entitled to claim full rights of set-off or counterclaim against the
Buyer, its charge holders or successors, in respect of the debt or part thereof so assigned.
9.6 Without prejudice to such other rights as the Company may have the Buyer agrees to grant to the Company such further security as the Company may from time to time
request so as to secure to the Company all sums due to it. Such security may be by way of a mortgage of land or directors personal guarantees or a debenture charge over the
assets of the Buyer and shall be prepared at the Buyer’s expense by the Company’s solicitors and shall contain all usual provisions. Should the Buyer default granting of any
such security in registrable form then the Company is hereby irrevocably appointed the Buyer’s attorney in the Buyer’s name and on its behalf to enter into, execute and sign all
deeds, instruments, acts and things whatsoever which may be necessary to complete such further security.
10. Ownership and Risk:
10.1 Ownership in the goods shall remain vested in the Company and the Buyer has made payment in full for all goods supplied by the Company to the Buyer, together with all interest
and monies due.
10.2 Until payment in full in terms of Clause 10.1:
(a) all goods supplied shall remain the sole and absolute property of the Company;
(b) the Buyer will hold the goods in trust for the Company as bailee of the Company;
(c) the Buyer shall store the goods on the Buyer’s premises in such a manner as to make them readily identifiable as belonging to the Company and shall display such identification
as may from time to time be requested by the Company:
(d) if the goods are sold by the Buyer then all proceeds of sale shall be the property of the Company and shall be retained in a separate account by the Buyer in trust for the
Company and shall not be intermingled with any other monies or paid into any overdrawn bank account and shall at all times be kept identifiable as monies held in trust for the
(e) if before it becomes the owner of the goods the Buyer makes new objects from the goods or incorporates them into or with other goods those other or new goods shall be
held on trust for the Company;
(f) the Buyer will “on demand’ (as those words are defined in the Fifth Schedule in the Chattels Transfer Act 1924 now repealed) assign to the Company all proceeds of sale of the
goods by the Buyer and will upon request disclose to the Company full details of the sale and the proceeds;
(g) where the Company has reasonable cause to believe the Buyer has not strictly complied with these Terms and Conditions or that the Buyer has or will commit an act of
bankruptcy or (being a company) has had a receiver appointed or about to be appointed the Company may repossess any or all of the goods supplied and for such purpose
may at any time day or night enter by force if necessary upon any premises where such goods are reasonably thought to be stored.
10.3 Notwithstanding anything else herein contained, the risk in any and all goods supplied shall pass to the Buyer on dispatch of the goods from the Company’s premises and in
particular, the Buyer shall be responsible for all goods in transit and shall fully insure them.
10.4 The Buyer shall reimburse the Company for all liabilities and expenses (including legal expenses) incurred by it in enforcing or attempting to enforce any rights it has under this
11.1 Notwithstanding any other agreement as to the terms of payment, the total purchase price shall immediately become due and payable and the company shall have the right to
forthwith cancel this contract (without prejudice to any other of its rights) upon the occurrence of any of the following events:
(a) The Buyer ceases or threatens to carry on the business;
(b) The Buyer enters into any negotiations for any arrangement or composition with its creditors;
(c) The Buyer is unable to pay its debts (including contingent liabilities) as they fall due;
(d) The Buyer becomes bankrupt or commits an available act of bankruptcy or proceedings are taken for liquidation of the Buyer’s affairs,
(e) The Buyer, being a company, goes into liquidation whether voluntary or compulsory or does anything or fails to do anything which would allow a receiver or manager to be
appointed or a receiver or manager to take possession of any of the Buyers assets or which would entitle any person to present an application for winding up or is wound up or
dissolved or placed under statutory management or enters into a scheme or arrangement with its creditors or any class thereof:
(f) Any distress or execution is levied on the Buyer;
(g) Breach by the Buyer of any other terms contained in this agreement.
11.2 Upon the happening of any or more than one of the above events the Company will be entitled to repossess and resell goods which remain the property of the Company within the
terms of Clause 8.
12.1 Prices quoted are GST exclusive and are based on rates and charges in effect at the date of the sales contract or as listed in the Company’s price book.
12.2 Any difference between these rates and charges and those actually ruling at the time of delivery or incurred by the Company will be to the Buyer’s account.
12.3 The rates and charges referred to above include, but are not limited to:
(a) the rates of currency exchange, freight, insurance and customs duty;
(b) the cost of labour, wharfage, clearing, handling and delivery;
(c) the cost of the goods to the Company.
12.4 Where contracts are based on the latest terms of supply available to the Company from a specific supplier the Company reserves the right to pass on to the Buyer any extra costs
incurred by the Company as a result of:
(a) Changes in the terms of supply by that supplier; or
(b) The Company accessing an alternative supplier.
12.5 Where the Company issues special quoted prices on the Company’s standard quote form, the conditions of the quotation document shall apply, notwithstanding other related
standard terms and conditions of sale as contained herein.
13.1 Any tax is additional to the Company’s quoted prices and shall be the Buyer’s responsibility.
14. Limitation of Liability:
14.1 The following provisions shall not apply to any supply of goods made to a Buyer for personal, domestic or household use but only to supplies made for business purposes
14.2 The Company’s liability in any event (whether under these Terms and Conditions or otherwise howsoever) is limited to:
(a) the replacement of any goods supplied free of charge on the same basis as originally agreed or as set out in Clause 3 hereof; or
(b) at the option of the Company a refund of the sale price; and
(c) in respect of defective goods not manufactured by it, the Company shall in no event be liable to pay to the Buyer any amount in excess of such amount (if any) as it shall have
received from its supplier in respect of the defect; and
(d) if the contract is frustrated, and/or the goods cannot be delivered for any cause whatsoever, then it is expressly agreed that all expenses incurred by the Company in
connection with the contract are to be set off against any sum payable by the Company to the Buyer; and the balance, if any, of the Company’s expenses in connection with
the contract over the amount of the set-off, is to be paid to the Company by the Buyer.
14.3 The Company accepts no responsibility for labour, material and other costs incurred in removing defective goods and refitting its replacement or for any loss or damage
howsoever arising from and whether directly or indirectly attributable to, any defect in any goods supplied.
14.4 Without limiting anything elsewhere contained in these Terms and Conditions, the Company will not be liable for labour, material and other costs or any consequential losses
incurred in respect of the Company’s failure to supply the goods, or to supply them by any particular time or at any particular place.
14.5 “Downgrade’ material is sold without warranty as to product quality fitness for purpose or compliance with specification.
14.6 Except as expressly provided in these Conditions all express or implied conditions, statements or warranties, whether statutory or otherwise, are expressly excluded
14.7 The Buyer shall indemnify the Company against any and all liability the Company may incur as a result of supplying or agreeing to supply goods to the Buyer other than any
liability arising under Clause 14. 2 or any liability to a consumer arising under the Consumer Guarantees Act 1993. This indemnity shall extend to any liability of the Company to any
third party who has acquired the goods from the Buyer for business purposes and the Buyer has failed to contract out of the provisions of the Consumers Guarantees Act 1993.
14.8 No clause herein shall be construed as limiting any other clause, but shall be construed as extending the widest limitation of liability in favour of the Company (which term shall for
the purposes of this clause be deemed to include officers, employees and agents),
15. Law Applicable:
15.1 This contract shall be construed and governed by the laws of New Zealand.
16. The Privacy Act 1993
16.1 The Buyer acknowledges that:
(a) Personal information collected or held by the Company (whether contained in this document or otherwise obtained) is provided and may be held, used and disclosed for the
(b) Administering, whether directly or indirectly, the Company’s contracts and enforcing the Company’s rights thereunder;
(c) Marketing goods and services provided by the Company;
(d) Ascertaining at any lime the Buyer’s creditworthiness and obtaining at any time credit reports, character references or credit statements:
(e) Enabling the Company to notify any credit agency of any application for credit or default on any obligation of the Buyer to the Company enabling the Company to provide
such personal information to any credit agency so such credit agency can maintain effective accounting records;
(f) Enabling the Buyer to communicate with the Company for any purpose;
(g) Such personal information is collected by and will be held by the Company whose address is West Street, P.O. Box 360, Ashburton, New Zealand.
16.2 The Buyer has the right under the Privacy Act 1993 to obtain access to and to request correction of any personal information concerning it held by the Company.
16.3 The Buyer authorises the Company lo obtain at any time from any person or entity, any information the Company may require to process and/or accept any application for credit
the Buyer may make to the Company or to perform or complete any of the other purposes for which the Buyer has provided personal information to the Company. The Buyer
authorises any such person to release to the Company any personal information that person holds concerning the Buyer.
16.4 For the purposes of the preceding clauses the term “the Company” includes any financier or discounter of the Company’s contract or any related company of the Company. The
term ‘related company” has the meaning given it by the Companies Act 1993 or replacement legislation.
17. Force Majeure:
17.1 The Company is not liable for failure or delay in supply or delivery occasioned by strike, industrial dispute, natural disaster, shortage or unavailability of stocks of products or raw
materials, shortage of labour, lack of skilled labour, failure of the Customers suppliers delay in transit, import restriction, legislative governmental or other prohibition or restriction,
fire, flood, hostilities, commotions or other causes whatsoever beyond the Company’s reasonable control including power outage or telecommunication disruption or act of war
or terrorist attack,
18. Local Laws:
18.1 It shall be entirely the responsibility of the buyer to ensure that the goods and the use thereof comply with the laws, regulations and codes of a particular country or local
authority and with the requirements of the Buyer.
19. Acceptance of Quotation:
19.1 The Company’s quotation shall be deemed to be withdrawn unless accepted by the buyer within a period of 30 days from the date of issue, unless otherwise agreed.
20.1 Prices will be quoted inclusive or exclusive of GST and such option shall be specified in writing on the quotation.
21. Allocation of Payments Received:
21.1 Where, at any time, there is an amount owing by the buyer under any two or more contracts, the Company may apply a payment made by the buyer in such manner (including in
such order and to any amounts owing to the Company, including under another contract) as the Company thinks fit and in the Company’s sole discretion (despite any direction to
the contrary and whether before or after any default by the buyer). The security interest provided for by these Terms and created by this Agreement also secures the amount
owing under each contract and this Agreement shall be construed accordingly.
22. Payment by Other than Cash:
22.1 Receipt by the Company of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured.
23. Inspection and Returns:
23.1 The buyer agrees to inspect the goods and verify delivery within 7 days of receipt. If no notice to the contrary has, within 7 days of delivery, been communicated to the company,
the buyer is deemed to have accepted the goods or services as received. The Company will, at the company’s option issue a credit note for the goods or will repair or replace the
goods where disclosed as faulty on such inspection following delivery and when the goods are authorised by the Company to be returned to the company as faulty.
24.1 The Company will not consider any job or account queries which are not raised within 1 month from the date of invoice.
25. Security Interest:
25.1 Each contract for the supply of goods entered into between the buyer and the Company creates, in favour of the Company, a security interest in the goods which are the subject
of the contract and such security interest secures the payment by the buyer lo the Company of all amounts the buyer may owe the Company from time to time and at any time,
including future advances.
25.2 The buyer authorises the Company to take possession of the collateral if the Company from time to time deems it necessary to do so to perfect or re perfect the Company’s
security interest in the collateral. For the purposes of this clause, possession includes but is not limited to the meaning ascribed to it in section 18 of the PPSA.
25.3 The buyer agrees that it will not do any thing or allow any act to be done which would have the effect of allowing the creation of a lien over any or all of the collateral that is the
subject of the Company’s security interest.
25.4 The buyer agrees to indemnify the Company, upon demand from the Company, for all costs and expenses (including legal fees) incurred Company as a result of the buyer
defaulting under this Agreement and in complying with any demand made under section 162 of the PPSA.
25.5 On the request of the Company, the buyer shall promptly do all things necessary and provide all information required by the Company to enable the Company to perfect and
maintain the perfection of any security interest granted to the Company by the buyer (including registration of a financing statement over the goods or the proceeds thereof).
25.6 The buyer shall promptly notify the Company of any changes to its personal details as supplied on the credit application form. Where the buyer proposes to change its name, it
shall notify the Company accordingly within 5 days of the change taking effect.
25.7 The buyer shall, within five working days of receiving a written request from the Company, supply the Company with copies of all security interests registered over the buyer’s
personal property and the Customer hereby authorises the Company, as its duly appointed agent, to request information from any secured party relating to any security interest
to which the buyer is a debtor.
26. Security Interest where goods become Accessions etc:
26.1 The Company’s interest in the goods continues if the goods are processed included or dealt with in any way causing them to become accessions processed or commingled goods
(as defined in the PPSA). The security interest in the original goods will continue in the whole in which they are included and the buyer agrees that it will not grant to any other
person a security interest in either the goods or in the whole.
27. Verification Statement:
27.1 The Customer waives its right to receive a copy of the Verification Statement in respect of any financing statement relating to the security interest granted to the Company by the
28.1 In addition to any other right, power or remedy of the Company expressed or implied in this agreement, at any time after the Customer has defaulted in its obligations, the
Company may appoint in writing any person or persons receiver of all or any of the collateral and the receiver shall have the power set out in the Receiverships Act 1993.
29. Trustee Liability:
29.1 Where the Customer is a trust, each trustee of the trust is bound by this Agreement and the trustees’ liability shall not be limited to the assets of trust unless the trustee is an
independent trustee (being a trustee who has no right lo or interest in any of the assets of the trust either directly or indirectly except in the trustee’s capacity as trustee of that
trust). However, this limitation of liability for independent trustees shall not affect the liability of the independent trustee that personally guarantees the buyer’s obligations under
30. Contracting out of the PPSA:
30.1 The parties contract out of sections 114(1)(a), 117(1)(c), 133 and 134 of the PPSA.
30.2 The parties contract out of Buyers rights in sections 116, 119, 120(2), 121, 125, 129, 131 and 132 of the PPSA.
31.1 Subject to the conditions of warranty set out in clause 331.2 the Seller warrants that if any defect in any workmanship of the Seller becomes apparent and is reported to the Seller
within twelve (12) months of the date of delivery (time being of the essence) then the Seller will either (at the Seller’s sole discretion) replace or remedy the workmanship.
31.2 The conditions applicable to the warranty given by clause 31.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(b) failure on the part of the Buyer to properly maintain any Goods; or
(c) failure on the part of the Buyer to follow any instructions or guidelines provided by the Seller; or
(d) any use of any Goods otherwise than for any application specified on a quote or order form; or
(e) the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(f) fair wear and tear, any accident or act of God.
31.3 The warranty shall cease and the Seller shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without
the Seller’s consent.
31.4 In respect of all claims the Seller shall not be liable to compensate the Buyer for any delay in either replacing or remedying the workmanship or in properly assessing the Buyer’s
31.5 For Goods not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller shall not be bound by nor be
responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
31.6 To the extent permitted by statute, no warranty is given by the Seller as lo the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded.
The Seller shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
31.7 The conditions applicable to the warranty given on Goods supplied by the Seller are contained on the ‘Warranty Card’ that will be supplied with the Goods.
31.8 In the case of second hand Goods, the Buyer acknowledges that he has had full opportunity to inspect the same and that he accepts the same with all faults and that no warranty
is given by the Seller as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Seller shall not be responsible for
any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
32. Intellectual Property:
32.1 Where the Seller has designed, drawn or developed Goods for the Buyer, then the copyright in any designs and drawings and documents shall remain the property of the Seller.
32.2 The Buyer warrants that all designs, specifications or instructions given to the Seller will not cause the Seller to infringe any patent, registered design or trademark in the execution
of the Buyer’s order and the Buyer agrees to indemnify the Seller against any action taken by a third party against the Seller in respect of any such infringement.
32.3 The Buyer agrees that the Seller may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which the Seller
has created for the Buyer.
33. Unpaid Seller’s Rights:
33.1 Where the Buyer has left any item with the Seller for repair, modification, exchange or for the Seller to perform any other service in relation to the item and the Seller has not
received or been tendered the whole of any moneys owing to it by the Buyer, the Seller shall have, until all moneys owing to the Seller are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable lo the sale or disposal of uncollected goods.
33.2 The lien of the Seller shall continue despite the commencement of proceedings, or judgment for any moneys owing to the Seller having been obtained against the Buyer.
34.1 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.
34.2 The Seller shall be under no liability whatsoever lo the Buyer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Buyer arising out of
a breach by the Seller of these terms and conditions (alternatively the Seller’s liability shall be limited lo damages which under no circumstances shall exceed the Price of the
34.3 The Buyer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Buyer by the Seller nor to withhold payment of any invoice
because part of that invoice is in dispute.
34.4 The Seller may license or sub-contract all or any part of its rights and obligations without the Buyer’s consent.
34.5 The Buyer agrees that the Seller may amend these terms and conditions at any time. If the Seller makes a change to these terms and conditions, then that change will take effect
from the date on which the Seller notifies the Buyer of such change. The Buyer will be taken to have accepted such changes if the Buyer makes a further request for the Seller lo
provide Goods o the Buyer.