1. Interpretation and Definitions:
(a) In these General Terms and Conditions of Sale unless the context requires otherwise:
“Buyer” means the person buying the Goods from MILLS DISPLAY N.Z. LIMITED (MILLS DISPLAY).
“Goods” means plastics and silicone products and all accessories being purchased by the Buyer from the Seller.
“Seller” means MILLS DISPLAY and includes its subsidiaries and successors.
(b) References to one gender include the other genders and references to the plural includes the singular and vice versa.
2. Electronic Commerce: The Seller may offer products for sale using the internet, e-mail or other computer-based electronic communications methods. All sales of products made using any such method will be governed by these General Terms and Conditions of Sale and referenced in the Seller’s internet site or electronic communications. In the event of any conflict between these General Terms and Conditions of Sale and such additional terms, the additional terms shall prevail. Buyer may not share any password, access code or similar credential which may be issued to it by the Seller, and the Seller reserves the right to suspend or revoke any such credential. Buyer is solely responsible for ensuring the security and integrity of its ordering process. Any information provided by the Seller via any internet site or electronic communication (i) is subject to correction or change without notice and (ii) is provided for the sole use of the Buyer for purposes facilitating individual transactions involving the purchase and sale of the Seller’s products. Buyer agrees that it shall not rely upon any such information for any purpose other than making individual purchases and shall not seek to assert such information against the Seller for any other purpose. Buyer specifically agrees that the Seller may issue electronic invoices for any purchases made using the internet, e-mail or any other computer-based electronic communication method, and agrees to honour such invoice as if it had been delivered in writing.
3. Price: The price is stated in the currency of payment to the Seller and any necessary transaction to obtain this currency by the Buyer shall be at the Buyer’s risk and cost. All payments shall be made without deduction of any kind. Penalty interest is at the rate of 15% per annum and is payable form the date such payment is due to the date of payment in full.
4. Buyers Instructions: At the time of establishment of the Sale, the Buyer shall furnish the Seller with all necessary specifications and instructions to ensure satisfactory completion of the Sale.
5. Registered Rights: The Buyer shall indemnify the Seller from all claims for any infringement of trademark, design, and pattern, mode of construction, patent, know-how, utility model or copyright rights arising from performance of the Sale. The Sale shall not include the transfer of any such rights.
6. Quantity or Volume: Delivery of the Goods covered by this Sale shall be subject to quantitative or volumetric variations, plus or minus, which are customarily accepted and recognised in transactions within the trading of the respective Goods.
7. Shipment: Goods shall be shipped from any port or ports in the country of shipment, by vessel or vessels of any flag, subject to availability of shipping space. Transshipment and partial or divided shipment is permitted. Each consignment shall be treated as a separate Sale. The date of the Bill Of Lading shall be construed as the date of shipment. The Seller shall not be liable for any delay in shipment attributable to his compliance with the Buyer’s special instructions regarding shipment. In the case of containerised shipments, the Buyer shall be liable for any detention/demurrage incurred due to the delay in removing goods beyond the time limit granted to the Buyer.
8. Insurance: In C.I.F. and/or C.I. Sales, the Seller shall affect marine insurance for 105% of the invoice value, against customary risk applicable to the commodity or commodities involved. When war risk insurance is required or considered necessary by the Buyer, Seller, or Bankers involved, it shall be affected by the Seller, for the Buyer’s account.
9. Ownership: Ownership of Goods shall not pass to the Buyer until the Buyer has paid all that is owing to the Seller. Until ownership has passed, the Buyer holds the Goods on behalf of the Seller under the following conditions
(a) The Seller is permitted to enter upon the Buyer’s premises, and the premises of third parties, to inspect and/or repossess the Goods.
(b) If the Buyer sells the Goods to a third party, then the Buyer is accountable to the Seller for all proceeds derived from such sale, and shall hold such proceeds (either as received or in a separate bank account opened expressly for the purpose) on trust for the Seller.
(c) If the Buyer manufactures, intermingles, or deals with the Goods in such manner that they become an integral part of any other object, then the Buyer shall be deemed to do so as agent of the Seller, and ownership of the Goods will remain with the Seller as principal.
10. Return of Goods: The customer shall be deemed to have accepted the goods unless the customer notifies MILLS DISPLAY, otherwise within 48 hours of delivery of the goods to the customer.
11. Terms of Payment: Indent payment terms will be established for indents at the time of order and confirmed by the sales contact issued by the Seller. The actual due date for payment for indents and ex New Zealand warehouse supply is stated on the Seller’s invoice. For Goods supplied ex Seller, New Zealand warehouse payment terms are 20th month following month of supply or as specifically agreed between the Seller and the Buyer.
12. Risk: Risk in the Goods shall pass to the Buyer on delivery of the Goods.
13. Personal Property Securities Act 1999 (PPSA):
(a) The provisions of this clause 12 shall apply when the PPSA comes into force on 1st May 2002.
(b) In relation to contracts for the sale of Goods by the Seller to the Buyer, that were made prior to the PPSA coming into force, the Buyer agrees to sign any documents and do any acts necessary to give the Seller the same level of priority for purchase moneys owing for those Goods, after 1st May 2002, that the Seller enjoyed before the PPSA came into force.
(c) As security for payment of the purchase money due by the Buyer to the Seller under each contract for the sale and purchase of Goods, the Buyer, for value received, grants the Seller a security interest in those Goods.
(d) The Seller has the right to allocate purchase moneys paid by the Buyer to the Seller for Goods against any invoice that is
outstanding for the supply of Goods or to allocate any payment between several outstanding invoices.
14. Contingency Charges: All contingency charges such as exchange rate fluctuations, sales tax or other taxes, increases in freight or insurance costs, surcharges due to war, threat of war, warlike conditions, port congestion, or any other emergencies unforeseen or non-existent at the time of establishment of the Sale, shall be the Buyer’s account.
15. Events Beyond Seller’s Control: Seller will not be liable if Seller cannot perform under this agreement if events beyond the Seller’s control occur which make it possible or commercially unreasonable for Seller to perform, including so-called “Acts of God” or “force majeure” events and raw material shortages.
16. Defaults: Should the Buyer default or neglect any of his responsibilities specified here under, or become insolvent, the Seller shall have the option of suspending the performance of or cancelling the Sale and herewith reserves the right to claim against the Buyer for any expenses, charges, agency costs and commissions, legal fees, losses incurred and/or market differences caused by such suspension or cancellation.
17. Warranty: The Seller warrants the Goods only in so far as they are warranted by the manufacturers from which they originate. All other warranties or guarantees implied by any law or statute are excluded from the Sale.
18. Technical Advice and Other Services: The Buyer is responsible for the design, processing, testing and labelling of any product that the Buyer makes using products the Buyer buys from the Seller and the Buyer will not rely on anything on the Seller’s website or any statement by the Seller about the suitability of products or services the Seller provides. The Buyer has tested and
investigated products sold by the Seller enough to form an independent judgement concerning their suitability for their use, conversion or processing intended by the Buyer and will not make any claim against the Seller based on the Seller’s technical advice, statements, data, services or recommendation.
19. Claims: Claims of any kind shall be lodged by the Buyer with the Seller in writing and in full within 24 hours where goods are delivered from the Seller’s warehouse and within thirty days of the discharge from the vessel of the goods at the destination stated on the Bill of Lading. Such claims should be accompanied by sworn statements or certificates, from surveyors or other competent authorities. No claim shall be accepted after processing or other change in the state of goods. In any event the liability of the Seller here under shall not exceed the contract price of the goods.
20. Law Governing: The performance of the Sale shall be governed by the laws of New Zealand.