ESP Terms of Trade

ES PLASTICS LTD - Terms and Conditions of Trade

1   DEFINITIONS
1.1    “ESP” means ES Plastics Ltd, its successors and assigns or any person acting on behalf of and with the authority of ES Plastics Ltd. 2   ACCEPTANCE
2.1     The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods
2.2     These terms and conditions may only be amended with ESP’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and ESP.
2.3     None of ESP’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the management of ESP in writing nor is ESP bound by any such unauthorised statements.

3   CHANGE IN CONTROL
3.1     The Customer shall give ESP not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by ESP as a result of the Customer’s failure to comply with this clause.

4   PRICE AND PAYMENT
4.1     At ESP’s sole discretion the Price shall be either:
          (a)  as indicated on any invoice provided by ESP to the Customer; or
          (b) ESP’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty    (30) days.
4.2     ESP reserves the right to change the Price if a variation to ESP’s quotation is requested.  Any variation from the plan of scheduled Services or specifications of the Goods (including, but not limited to, any variation as a result of availability of Goods, increases to ESP in the cost of taxes, levies, materials and labour) will be charged for on the basis of ESP’s quotation and will be shown as variations on the invoice.
4.3     At ESP’s sole discretion a non-refundable deposit may be required.
4.4     Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by ESP, which may be:
          (a)  the date specified on any invoice or other form as being the date for payment; or
          (b)  by way of instalments/progress payments in accordance with ESP’s payment schedule; or
          (c)  failing any notice to the contrary, the date which is twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices.
4.5     Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Customer and ESP.
4.6     Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to ESP an amount equal to any GST ESP must pay for any supply by ESP under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

5   DELIVERY OF GOODS
5.1     Delivery (“Delivery”) of the Goods is taken to occur at the time that:
          (a)  the Customer or the Customer’s nominated carrier takes possession of the Goods at ESP’s address; or
          (b)  ESP (or ESP’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
5.2     The costs of carriage and any insurance which the Customer reasonably directs ESP to incur shall be reimbursed by the Customer (without any set-off or other withholding whatever) and shall be due on the date for payment of the Price. The carrier shall be deemed to be the Customer’s agent.
5.3     The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then ESP shall be entitled to charge a reasonable fee for redelivery and/or storage.
5.4     ESP may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.5     The Customer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that;
          (a)  such discrepancy in quantity shall not exceed 10%, and
          (b)  the Price shall be adjusted pro rata to the discrepancy.
5.6     Any time or date given by ESP to the Customer is an estimate only. The Customer must still accept delivery of the Goods even if late and ESP will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.  

6   RISK
6.1     Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
6.2     If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, ESP is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by ESP is sufficient evidence of ESP’s rights to receive the insurance proceeds without the need for any person dealing with ESP to make further enquiries.
6.3     If the Customer requests ESP to leave Goods outside ESP’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
6.4     Any advice, recommendation, information, assistance or service provided by ESP in relation to Goods or Services supplied is given in good faith, is based on ESP’s own knowledge and experience and shall be accepted without liability on the part of ESP and it shall be the responsibility of the Customer to confirm the accuracy and reliability of the same in light of the use to which the Customer makes or intends to make of the Goods or Services.
6.5     The Customer acknowledges and accepts that the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, ESP reserves the right to vary the Price with alternative Goods as per clause 4.2.  ESP also reserves the right to halt all Services until such time as ESP and the Customer agree to such changes.

7   ACCURACY OF CUSTOMERS PLANS AND MEASUREMENTS
7.1     ESP shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer. The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, ESP accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
7.2     In the event the Customer gives information relating to measurements and quantities of the Goods required to complete the services, it is the Customer’s responsibility to verify the accuracy of the measurements and quantities, before the Customer or ESP places an order based on these measurements and quantities. ESP accepts no responsibility for any loss, damages, or costs however resulting from the Customer’s failure to comply with this clause.

8   TITLE
8.1     ESP and the Customer agree that ownership of the Goods shall not pass until:
          (a)  the Customer has paid ESP all amounts owing to ESP; and
          (b)  the Customer has met all of its other obligations to ESP.
8.2     Receipt by ESP of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
8.3     It is further agreed that:
          (a)  until ownership of the Goods passes to the Customer in accordance with clause 8.1 that the Customer is only a bailee of the Goods and must return the Goods to ESP on request.
          (b)  the Customer holds the benefit of the Customer’s insurance of the Goods on trust for ESP and must pay to ESP the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed. 
          (c)  the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for ESP and must pay or deliver the proceeds to ESP on demand.
          (d)  the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of ESP and must sell, dispose of or return the resulting product to ESP as it so directs.
          (e)  the Customer irrevocably authorises ESP to enter any premises where ESP believes the Goods are kept and recover possession of the Goods.
          (f)  ESP may recover possession of any Goods in transit whether or not delivery has occurred.
          (g)  the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of ESP.
          (h)  ESP may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.

9   PERSONAL PROPERTY SECURITIES ACT 1999 (“PPSA”)
9.1     Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:
          (a)  these terms and conditions constitute a security agreement for the purposes of the PPSA; and
          (b)  a security interest is taken in all Goods previously supplied by ESP to the Customer (if any) and all Goods that will be supplied in the future by ESP to the Customer.
9.2     The Customer undertakes to:
          (a)  sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which ESP may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
          (b)  indemnify, and upon demand reimburse, ESP for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
          (c)  not register a financing change statement or a change demand without the prior written consent of ESP; and
          (d)  immediately advise ESP of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
9.3     ESP and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
9.4     The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
9.5     Unless otherwise agreed to in writing by ESP, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
9.6     The Customer shall unconditionally ratify any actions taken by ESP under clauses 9.1 to 9.5.

10   SECURITY AND CHARGE
10.1   In consideration of ESP agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
10.2   The Customer indemnifies ESP from and against all ESP’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising ESP’s rights under this clause.
10.3   The Customer irrevocably appoints ESP and each director of ESP as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Customer’s behalf.
 
11   CUSTOMER’S DISCLAIMER
11.1   The Customer hereby disclaims any right to rescind, or cancel any contract with ESP or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by ESP and the Customer acknowledges that the Goods are bought relying solely upon the Customer’s skill and judgement.

12   DEFECTS
12.1   The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify ESP of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote.  The Customer shall afford ESP an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which ESP has agreed in writing that the Customer is entitled to reject, ESP’s liability is limited to either (at ESP’s discretion) replacing the Goods or repairing the Goods.
12.2   Goods will not be accepted for return other than in accordance with 12.1 above.

13   RETURNS
13.1   Returns will only be accepted provided that:
          (a)  the Customer has complied with the provisions of clause 12.1; and
          (b)  ESP has agreed in writing to accept the return of the Goods; and
          (c)  the Goods are returned at the Customer’s cost within fourteen (14) days of the delivery date; and
          (d)  ESP will not be liable for Goods which have not been stored or used in a proper manner; and
          (e)  the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
13.2   ESP will not accept the return of Goods for credit.

14   WARRANTY
14.1   Subject to the conditions of warranty set out in clause 14.2 ESP warrants that if any defect in any workmanship of ESP becomes apparent and is reported to ESP within three (3) months of the date of delivery (time being of the essence) then ESP will either (at ESP’s sole discretion) replace or remedy the workmanship.
14.2   The conditions applicable to the warranty given by clause 14.1 are:
          (a)  the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
               (i)    failure on the part of the Customer to properly maintain any Goods; or
               (ii)  failure on the part of the Customer to follow any instructions or guidelines provided by ESP; or
               (iii) any use of any Goods otherwise than for any application specified on a quote or order form; or
               (iv)  the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
               (v)   fair wear and tear, any accident or act of God.
          (b)  the warranty shall cease and ESP shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without ESP’s consent.
          (c)  in respect of all claims ESP shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.
14.3   For Goods not manufactured by ESP, the warranty shall be the current warranty provided by the manufacturer of the Goods. ESP 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.

15   CONSUMER GUARANTEES ACT 1993
15.1   If the Customer is acquiring Goods for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by ESP to the Customer.

16   INTELLECTUAL PROPERTY
16.1   Where ESP has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of the Customer.
16.2   The Customer warrants that all designs, specifications or instructions given to ESP will not cause ESP to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify ESP against any action taken by a third party against ESP in respect of any such infringement.

17   DEFAULT AND CONSEQUENCES OF DEFAULT
17.1   Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of one and a half percent (1.5%) per calendar month (and at ESP’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgement.
17.2   If the Customer owes ESP any money the Customer shall indemnify ESP from and against all costs and disbursements incurred by ESP in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, ESP’s collection agency costs, and bank dishonour fees).
17.3   Without prejudice to any other remedies ESP may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions ESP may suspend or terminate the supply of Goods to the Customer. ESP will not be liable to the Customer for any loss or damage the Customer suffers because ESP has exercised its rights under this clause.
17.4   Without prejudice to ESP’s other remedies at law ESP shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to ESP shall, whether or not due for payment, become immediately payable if:
          (a)  any money payable to ESP becomes overdue, or in ESP’s opinion the Customer will be unable to make a payment when it falls due;
          (b)  the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
          (c)  a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

18   CANCELLATION
18.1   ESP may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice ESP shall repay to the Customer any money paid by the Customer for the Goods. ESP shall not be liable for any loss or damage whatsoever arising from such cancellation.
18.2   In the event that the Customer cancels delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by ESP as a direct result of the cancellation (including, but not limited to, any loss of profits).
18.3   Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

19   DISPUTE RESOLUTION
19.1   All disputes and differences between the Customer and ESP touching and concerning this agreement shall be referred to arbitration under a single arbitrator agreed upon by both parties, or failing agreement, by two arbitrators (one to be appointed by each party) and their umpire (appointed by them prior to arbitration), such arbitration to be carried out in accordance with provisions of the Arbitration Act 1996.

20   PRIVACY ACT 1993
20.1   The Customer authorises ESP or ESP’s agent to:
          (a)  access, collect, retain and use any information about the Customer;
               (i)   (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer’s creditworthiness; or
               (ii)  for the purpose of marketing products and services to the Customer.
          (b)  disclose information about the Customer, whether collected by ESP from the Customer directly or obtained by ESP from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.
20.2   Where the Customer is an individual the authorities under clause 20.1 are authorities or consents for the purposes of the Privacy Act 1993.
20.3   The Customer shall have the right to request ESP for a copy of the information about the Customer retained by ESP and the right to request ESP to correct any incorrect information about the Customer held by ESP.

21   UNPAID SELLER’S RIGHTS
21.1   Where the Customer has left any item with ESP for repair, modification, exchange or for ESP to perform any other service in relation to the item and ESP has not received or been tendered the whole of any moneys owing to it by the Customer, ESP shall have, until all moneys owing to ESP 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 to the sale or disposal of uncollected goods.
21.2   The lien of ESP shall continue despite the commencement of proceedings, or judgement for any moneys owing to ESP having been obtained against the Customer.

22  GENERAL
22.1   The failure by ESP to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect ESP’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
22.2   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. 
22.3   ESP shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by ESP of these terms and conditions (alternatively ESP’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
22.4   The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by ESP nor to withhold payment of any invoice because part of that invoice is in dispute.
22.5   ESP may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
22.6   The Customer agrees that ESP may amend these terms and conditions at any time. If ESP makes a change to these terms and conditions, then that change will take effect from the date on which ESP notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for ESP to provide Goods to the Customer.
22.7   Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
22.8   The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.