RFI Technology Solutions Limited – Terms of Trade (“Terms”)
1. Application of Terms
1.1 These Terms govern our supply of Goods and Services to you, including supplies on a cash basis.
1.2 If you wish to negotiate these Terms with us then you should respond to this document, marking up these Terms and drawing those changes to our attention and obtain our agreement in writing.
1.3 It is not our practice to otherwise review terms and conditions on documents that you issue to us.
1.4 Unless we otherwise agree in writing, we do not accept, and will not be bound by, any terms or conditions included in, attached to, or referenced in, any other document you give to us like a purchase order, and these Terms prevail.
2. Quotations
2.1 Each quotation that we issue:
is an estimate only;
is not an offer or obligation to supply any Goods or to perform any Services;
is exclusive of GST;
is made on a Free into Store (FIS) or Ex Works (EXW) (as those expression are defined in the Incoterms® 2020) basis, in which case freight is charged in addition to the price of the Goods;
does not include the costs of any special packing or packaging costs;
remains valid for acceptance for a period of thirty (30) days from the date of quotation (or such other date specified in the quotation), unless withdrawn by us before a contract for supply is formed; and
contains a price on the basis that all Services are performed, and all Goods delivered, during Business Hours,
unless the quotation states otherwise.
2.2 A quotation may include additional terms or conditions, which will supplement and form part of these Terms. In the event of any conflict, terms provided in a written quotation will prevail of these Terms to the extent of the inconsistency.
2.3 Should you wish to have services performed outside Business Hours; you must let us know as additional charges may apply.
3. Formation of contract
3.1 We are not obliged to supply any Goods or provide Services until after a contract for supply is formed.
3.2 A contract for supply is formed, and you have accepted these Terms, when:
you have placed an Order with us; and
(if applicable) we have received any deposit we have required from you in respect of the Order before progressing it; and
either we have:
accepted your Order in writing; or
supplied you with any Goods or performed any Services following receipt of your Order.
3.3 If you revoke an Order:
(a) prior to the formation of a contract for supply then:
we will refund you any deposit you have paid in respect of that Order; and
you will not be required to pay any fee for the cancellation of the Order; or alternatively (b) after the formation of a contract for supply then, unless we are in breach of the contract for supply: (i) you must pay all our reasonable costs associated with fulfillment of your Order; and
(ii) we may apply any deposit you have paid towards those costs.
3.4 We may (in our sole discretion) refuse to accept any Order.
3.5 If the Customer is a company, you must immediately advise us in writing in the event of any significant expansion, contraction or sale or restructure to your business and, without limiting the above, must notify us of any proposed changes of ownership of your shareholding or change of your directors at least seven 7 days prior to the change taking effect.
4. Price
4.1 The price payable for the Goods or Services will be:
the price agreed in writing; or alternatively (b) the price by our prevailing price list/rates as when you place your Order.
4.2 We may vary our price or rates by notice to you if you request: (a) the Goods or Services be rendered outside Business Hours;
different Goods or Services to be supplied to the contract for supply; or
that we delay provision of the Goods or Services for sixty (60) days or more.
4.3 Where we vary the price or rates payable for the Goods or Services pursuant to subclause 4.2, we will notify you of the new price/rates. Thereafter you may reject the new price/rates within seven (7) days and terminate the contract for supply without any cost or penalty to you, otherwise you agree that the price/rates will apply to the contract.
5. Delivery and risk
5.1 All Goods are supplied on a Free into Store (FIS) or Ex Works (EXW) (as those expression are defined in the Incoterms® 2020) basis. Unless prior arrangements have been made for delivery, you must make arrangements to promptly collect the Goods when we notify you they are ready for collection.
5.2 Where we have agreed to deliver the Goods: (a) you will be liable for the costs of delivery (in addition to the price of the Goods); and (b) we will use reasonable endeavours to deliver the Goods at the time and place agreed for delivery.
5.3 You will make arrangements necessary to take delivery of the Goods.
5.4 You acknowledge and agree that:
unless the contract for supply expressly states otherwise, time in respect of delivery is not of the essence; and
any timeframe or date for delivery is an estimate only and is not a contractual commitment.
5.5 Individual freight arrangements will need to be made for the shipment of dangerous goods and bulky items. 5.6 Risk of loss, damage, or deterioration to the Goods passes to you, and delivery is deemed to occur, at the time: (a) you or any third party on your behalf collect the Goods from us; (b) we or our nominated carrier deliver the Goods to the delivery location stated in your Order (or to such other location as agreed in writing); or (c) your nominated carrier takes possession of the Goods.
5.7 You agree to sign our delivery docket or consignment note or that of our nominated carrier as confirmation that you have received the Goods, and if appropriate, certify that you have received the Goods in apparent good order and condition in the quantity or volume you have ordered.
5.8 If delivery or collection of the Goods is deferred:
at your request; or due to you being unable or unwilling to accept delivery of the Goods (other than as a result of the Goods delivered not being in accordance with the contract for supply);
in circumstances where:
we are ready to deliver the Goods and a delivery date has not been agreed; or the Goods are due to be delivered or collected on an agreed date, then you will pay to us:
reasonable daily storage charges (which will continue to accrue until such time as the Goods are delivered or collected); and any costs associated with us or our nominated carrier attempting to re-deliver the Goods (where we or our nominated carrier has previously attempted to deliver the Goods).
5.9 You acknowledge and agree that we may deliver the Goods in one or more lots and may invoice you for pro-rata progress in respect thereof.
6. Payment terms
6.1 Unless you have a Credit Facility with us which is not in default:
deposits we have requested must be paid before we commence providing Goods and Services;
you must pay for all Goods before they are dispatched (in cash or cleared funds); and
you must pay for all Services on a progressive hourly basis as performed.
6.2 Payment may be made by money order, cheque, electronic funds transfer, or Visa or Mastercard credit cards. We reserve the right to change the payment methods that we accept at any time.
6.3 We may charge a payment surcharge for applicable payment transactions equal to our reasonable cost of acceptance.
6.4 You agree to pay GST on all taxable supplies upon us issuing you a tax invoice relating to the taxable supply.
6.5 You agree to pay sums due to us free of any set-off or counterclaim and without deduction or withholding.
7. Claims
7.1 We will not be liable for any shortfall, incorrect supply, or damage to the Goods unless you notify us of your Claim in accordance with this clause 7, otherwise you are deemed to have accepted the Goods.
7.2 You must, within seven (7) days of the date of delivery:
give us notice in writing, with particulars, of any Claim that the Goods delivered are not in accordance with the contract for supply (including any Claim for shortfall, incorrect supply, or damage to the Goods); and
at our request, provide us with photographic evidence (to our satisfaction) of any alleged damage to the Goods.
7.3 You must notify us in writing of any Claim for non-delivery within seven (7) days of the date of the invoice which relates to the Goods the subject of your Claim.
7.4 If you fail to notify us in accordance with subclause 7.2 and 7.3, then, to the extent permitted by law, the Goods are deemed to have been delivered in good condition and in accordance with the contract for supply.
7.5 If the Customer is a Consumer, nothing in this clause 7 limits any remedy available for a failure of the guarantees under the CGA.
8. Returns
8.1 We will accept the return of any Goods if:
the Goods supplied do not conform with the contract for supply;
the Goods are defective; or
we are required by law to accept the return of the Goods.
8.2 At our discretion, we may accept the return of Goods if you change your mind if:
you agree to:
pay the lesser of a handling and administration charge of 20% of the purchase price of the returned Goods or $200; and
reimburse us for all costs we incur in connection with the return of those Goods (except for Goods we have incorrectly supplied or we agree are defective);
the Goods are in substantially the same condition to the condition in which they were delivered; and
the Goods were not specifically produced or procured at your request.
8.3 You indemnify and release us from any damage that occurs to any Goods in return transit. You should ensure that any returned Goods are insured against such damage.
9. Retention of title
9.1 Until such time as you have made payment in full (in cash or cleared funds) for any Goods we have supplied:
title in the Goods does not pass to you and we retain the legal and equitable title in the Goods;
you will hold the Goods as fiduciary and bailee for us and agree to store the Goods in such a manner as to
enable them to be readily identifiable as our property; (c) you undertake to not mix the Goods with similar goods;
unless and until we notify you to the contrary, you will be entitled to sell the Goods in the ordinary course of your business (provided any such sale is at arm’s length and on market terms) and will sell the Goods as our agent and bailee; and
you undertake to hold any proceeds derived from the sale of the Goods on trust for us absolutely.
While title in the Goods remains with us, you permit us to enter upon any premises you occupy (or any premises any receiver, receiver and manager, administrator, liquidator, or trustee in bankruptcy of yours occupies) as your invitee to inspect the Goods and, when you are in default of payment of any invoice, to repossess any Goods in your possession, custody, or control.
Where we exercise our right of entry pursuant to subclause 9.2, you agree that us doing so will not give rise to any Claim for trespass or similar action against us or our officers, employees, and agents.
Where we have retaken Goods into our possession, we have the right to sell or deal with those Goods, and, if necessary, sell any Goods bearing your name or trade mark, and you hereby grant us an irrevocable licence to do all things necessary to sell those Goods.
For the removal of doubt:
these Terms constitutes a security agreement under the PPS Act;
our interest under this clause 9 constitutes a purchase money security interest for the purposes of the PPS Act in all present and future Goods supplied by us to the Customer and the proceeds of those goods; and
our security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Customer at any particular time.
10. Security interest
10.1 Unless you have obtained our prior written and fully informed consent, you undertake not to:
register a financing change statement in respect of a security interest in our favour; or
create, or purport to create, any security interest in the Goods (or any proceeds derived from the sale of such Goods), nor register, nor permit to be registered, a financing statement or financing change statement in relation to the Goods in favour of any third party.
10.2 You:
must do whatever is necessary to give a valid security interest over the Goods which is able to be registered by us on the New Zealand Personal Property Securities Register maintained under the PPS Act;
waive your right to receive a copy of any verification statement in accordance with section 148 of the PPS Act; and
agree that, to the extent permitted by the PPS Act:
the Customer will have no rights under (or by reference to) section 114(1), 116, 120(2), 121, 125, 127, 129, 132, 133 or 134 of the PPS Act; and
the provisions of Part 9 of the PPS Act, which are for the benefit of the Customer or place obligations on us, will apply only to the extent that they are mandatory or we agree to their application.
Where we have rights in addition to those under Part 9 of the PPS Act, those rights continue to apply
We may allocate amounts received from the Customer in any manner we determine, including in any manner required to preserve any purchase money security interest we have in Goods supplied by us.
If requested by us, the Customer must reimburse us for all costs and expenses incurred by us in relation to registering, maintaining or releasing any financing statement in respect of our security interest.
11. Formulae
Where you supply us with any formulae or other material:
you are responsible for the accuracy and detail of such formulae or other material, and, to the extent permitted by law, we will not be responsible for any loss or damage suffered by you in respect of any Goods we supply based on your formulae or other material,
which are either unsuitable or unusable for any reason, or are not of sufficient quantities for your intended use or purpose;
we may refuse any Order where, in our reasonable opinion, you have failed to provide us with sufficient detail in the formulae or other material to enable us to supply the Goods you have requested; and
you warrant your formulae and other material do not infringe the Intellectual Property Rights any third party and agree to indemnify us (and keep us indemnified) against any costs suffered by us or Claims arising from our use of the formulae or other material you have provided us.
12. Description of Goods
If you require any Goods for a particular purpose, you must advise us of that purpose prior to placing your Order and must obtain a written assurance from us that the Goods will meet your requirements. If you do not advise us of your requirements and we do not expressly warrant in writing that the Goods will be fit for your particular purpose, then you agree that you did not rely upon our skill or judgment in relation to the suitability of the Goods for that purpose.
13. Intellectual Property Rights
13.1 All right, title, and interest in the Intellectual Property Rights in and to all Working Documents, and all Goods sold or supplied by us are, and will at all times, remain our property.
13.2 All improvements, derivatives and modifications to the Intellectual Property Rights contemplated by subclause 13.1 (the Improvements) vest in us immediately on creation. To the extent necessary to give effect to this clause 13, you assign to us all right, title, and interest in the Improvements.
13.3 You acknowledge and agree that you have no rights to use our Intellectual Property Rights, except as expressly set out herein, unless otherwise agreed in writing.
14. Default
14.1 Subclauses 14.2 to 14.4 apply if you fail to pay sums to us when they fall due.
14.2 We may charge you interest on the outstanding debt (including any judgment debt) at the rate of 15% per annum, provided that if any late payment is the subject of a genuine dispute, you will only pay interest on the amount ultimately determined (whether by agreement or otherwise) to be payable by you.
14.3 We may suspend or cease the supply of any further Goods or Services to you.
14.4 We may require pre-payment in full for any Goods or Services which have not yet been supplied.
15. Indemnity
15.1 If you default in the performance or observance of your obligations under any contract of which these Terms form part, then:
we will take steps to mitigate our loss and act reasonably in relation to any default by you; and
we will give you notice requesting payment for loss and damage occasioned in respect of those events and requesting that you remedy any breach within a reasonable time; and
if that demand is not met then you indemnify us in respect of loss, damage, costs (including collection costs, bank dishonour fees, and legal costs on an indemnity basis) that we have suffered arising therefrom.
15.2 Your liability to indemnify us will be reduced proportionally to the extent that any fraud, negligence, or wilful misconduct by us or a breach of our obligations under contract has contributed to the Claim, loss, damage, or cost which is the subject of the indemnity.
15.3 Your liability to indemnify us is a continuing obligation separate and independent from your other obligations and survives the termination or performance of any contract of which these Terms form part.
16. Limitation of liability
16.1 No party is liable to the other party for any Consequential Loss, including under clause 15, however caused arising out
of or in connection with any contract for supply of which these Terms form part.
16.2 While we will take reasonable endeavours to meet any estimated delivery date or estimated time for Goods and Services, you acknowledge and agree that we are not liable for any delay associated with meeting those estimated timeframes.
16.3 To the extent permitted by law, our liability is limited to:
(in the case of a supply of Goods):
us repairing or replacing the Goods; or
us paying you the cost of having the Goods repaired or replaced;
(in the case of a supply of Services):
(i) us supplying the Services again; or (ii) us paying you the cost of having equivalent Services supplied.
Nothing in these Terms is to be interpreted as excluding, restricting, or modifying or having the effect of excluding, restricting, or modifying the application of any law, statute, regulation, or bylaw applicable to the sale of goods which cannot be excluded, restricted or modified including, without limitation, the CGA and the FTA (except to the extent permitted by those Acts).
The Customer must comply with all relevant laws, statutes, regulations or bylaws applicable to the Customer’s business including in connection with Goods or Services supplied by the Supplier, including the CGA and the FTA, and will indemnify the Supplier against all and any demands, claims, actions and proceedings in connection with or arising out of any non-compliance by the Customer.
You agree that:
if the Goods and Services are supplied to and acquired by you in trade for the purposes of a business, the CGA does not apply;
you do not rely on the representations or other conduct of us or our employees or agents, and that the purpose of this clause 16.6(b) is to expressly contract out of the FTA to the maximum extent possible; and
it is fair and reasonable that the parties are bound by this clause 16.6.
Goods which are not manufactured by us may have a manufacturer’s warranty. If so, we will, subject to the terms of the manufacturer’s warranty, pass on to the Customer the benefit of that manufacturer’s warranty. Unless expressly provided in writing otherwise, to the maximum extent permitted by law, we do not provide any warranty for, and will not be liable for any defect in, any Goods manufactured by a third party, nor are we liable to the Customer under the manufacturer’s warranty.
To the extent the limitations in this clause 16 do not apply or are not effective in accordance with their terms, in no event will the aggregate liability of the Supplier to the Customer arising from any breach of these Terms, tort (including negligence) or other action or contravention of any statute or otherwise, exceed the total amounts paid by the Customer to the Supplier over the 12 months preceding the Customer’s claim.
17. Termination
A party may, with immediate effect, terminate any contract for supply of which these Terms form part by notice in writing, if the other party:
commits a material or persistent breach of these Terms and does not remedy that breach (if capable of remedy) within seven (7) days of the receipt of a notice (or such longer time as specified in the notice) identifying the breach and requiring its remedy; or
has failed to pay sums due to the party within seven
(7) days; or
has indicated that it is, or may become, insolvent; or
ceases to carry on business; or
comprises an entity which is the subject of the appointment of receivers or managers; or (f) comprises a natural person who:
has committed an act of bankruptcy; or
has been made bankrupt; or (g) comprises a corporation which: (i) enters into voluntary administration;
(ii) is subject to a deed of company arrangement; or (iii) is subject to the appointment of liquidators or provisional liquidators.
18. Force Majeure
No party is not liable in any way howsoever arising under these Terms to the extent that it is prevented from acting by events beyond its reasonable control including, without limitation, industrial disputes, strikes, lockouts, accident, breakdown, import or export restrictions, acts of God, acts or threats of terrorism or war (Force Majeure Event). If an Force Majeure Event occurs and is continuing, we may suspend or terminate any contract for supply of Goods or Services by notice in writing to you.
19. Variation
We may amend these Terms in the future by notifying you in writing. The amended Terms will thereafter apply to each subsequent Order you place, unless you earlier give us written notice in advance of placing a further Order.
20. Assignment
A party may only assign its rights under the contract for supply with the written consent of the other party.
21. Subcontracting
21.1 You acknowledge that we may subcontract:
the manufacturing and supply of any part of the Goods to be supplied; and
the Services we are to provide (or any part of those
Services),
however, doing so will not relieve us of any of our obligations to you under any contract of which these Terms form part.
22. Conflicts and Inconsistencies
If there is any conflict or inconsistency between any of the documents which together govern the relationship between the parties, it is agreed the order of precedence will be (highest to lowest):
any additional terms or conditions contained in our quotation applicable to the supply of Goods or Services;
any terms governing your Credit Facility; and (c) these Terms.
23. Severance
If any part or term of our agreement with you (including any Credit Facility) is illegal, invalid, or unenforceable, it will be read down so far as necessary to give it a valid and enforceable operation or, if that is not possible, it will be severed from the contract and the remaining provisions will not be affected, prejudiced, or impaired by such severance.
24. General
24.1 Our failure to enforce any of these Terms will not be construed as a waiver of any of our rights.
24.2 A notice must be in writing and handed personally or sent by email, or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by email are deemed received on confirmation of successful transmission.
24.3 We comply with the Privacy Act and the information privacy principles set out in the Privacy Act. We may collect, retain, and use information that is personal information (as defined by the Privacy Act) for the purpose of supplying the Goods and Services, assessing the Customer’s credit worthiness, enforcing any rights under these Terms or referring any matter to debt collection, or marketing any goods or services we think might be of interest to you. The relevant person has the right to access any personal information we hold about them and to request correction or any incorrect information.
24.4 Any provision in these Terms that is held to be invalid or unenforceable for any reason will be severed from, and will not affect the remaining provisions of, these Terms.
25. Governing law and jurisdiction
25.1 Our relationship is governed by and construed according to the law applying in New Zealand.
25.2 The parties irrevocably submit to the non-exclusive jurisdiction of the courts of New Zealand with respect to any proceedings that may be brought at any time relating to our relationship.
26. Definitions
In these Terms, unless the context otherwise requires, the following definitions apply.
26.1 Business Hours means between 08:30am to 5:00pm on a day that is not a Saturday, Sunday, or gazetted public holiday in the place where the Goods or Services are, or are to be, supplied.
26.2 CGA means the Consumer Guarantees Act 1993 (NZ), as amended.
26.3 Claim includes a claim, notice, demand, action, proceeding, litigation, investigation, judgment, or award howsoever arising, whether present, unascertained, immediate, future, or contingent, whether based in contract, tort, pursuant to statute or otherwise and whether involving a third party or a party to a contract for supply.
26.4 Consequential Loss includes any:
consequential loss;
loss of anticipated or actual profits or revenue;
loss of production or use; (d) financial or holding costs;
loss or failure to realise any anticipated savings;
loss or denial of business or commercial opportunity;
loss of or damage to goodwill, business reputation, future reputation, or publicity;
loss or corruption of data; (i) downtime costs or wasted overheads; or (j) special, punitive, or exemplary damages.
Consumer has the meaning given to this term in the CGA.
Credit Facility means an account we have opened for you on which we may, from time to time, extend you with additional time to pay for our Goods and Services and associated charges.
Customer or you means the person or entity who has placed an Order with us for Goods or Services.
FTA means the Fair Trading Act 1986 (NZ), as amended;
Goods means all goods supplied by us, as described on our quotation, invoice, or any other form issued by us.
Intellectual Property Rights means all industrial and intellectual property rights throughout the world, whether present or future, and whether protectable by statue, at common law or in equity, including rights in relation to copyright, trade secrets, know how, trade marks (whether registered or unregistered or whether in word or logo/device form), designs, patents and patentable inventions, including the right to apply for registration of any such rights.
Order means a written or oral order placed by you requesting that we provide Goods or Services.
PPS Act means the Personal Property Securities Act 1999 (NZ), as amended.
Privacy Act means the Privacy Act 2020 (NZ), as amended.
Services means all services performed by us, as may be described on our quotation, invoice, or (as applicable) any other form issued by us.
Supplier, we, us means RFI Technology Solutions Limited (NZCN 8974249) and, where appropriate, any of our related parties.
Working Documents means all literary, artistic, and other works, including all physical works, production materials and subject matter created solely or jointly with others, by us in the course of or in relation to any contract in which Intellectual Property Rights may subsist and all drafts, variations, alterations, and adaptations of such works or subject matter (whether currently existing or created in the future).
27. Interpretation
In these Terms, unless the context otherwise requires:
27.1 A time is a reference to the time zone of Christchurch, New Zealand unless otherwise specified.
27.2 $, dollar, or NZD is a reference to the lawful currency of Australia.
27.3 A party includes a reference to that person’s executors, administrators, successors, substitutes (including a person who becomes a party by novation), assigns, and in the case of a trustee, includes any substituted or additional trustee. 27.4 A right includes a benefit, remedy, authority, discretion, or power.
27.5 The singular includes the plural and vice versa, and a gender includes other genders.
27.6 “In writing” or “written” means any expression of information in words, numbers, or other symbols, which can be read, reproduced, and later communicated, and includes email and electronically transmitted and stored information. 27.7 If a word or phrase is given a defined meaning, its other grammatical forms have a corresponding meaning.
27.8 Words such as “includes”, “including”, “for example”, and “such as” are not words of limitation and are to be construed as though followed by the words “without limitation”. 27.9 A term of an agreement in favour of two or more persons is for the benefit of them jointly and each of them separately.