Spec Papers Ltd
Terms and Conditions of Sale - April 2008
1
Spec Papers Ltd
TERMS AND CONDITIONS OF SALE
1. EXCLUSION OF BUYER'S TERMS
1.1 It is expressly acknowledged and agreed that these
terms operate to the exclusion of all and any terms
and conditions issued by the Buyer whether before
or after the date these Terms and Conditions of sale
come into effect.
2. ORDERS AND PERFORMANCE
2.1 Spec Papers Ltd may accept or refuse any order for
Goods in its absolute discretion and may make its
acceptance of an order conditional upon a
satisfactory credit assessment of the Buyer.
2.2 Unless otherwise agreed orders must be in writing
and either mailed, couriered, faxed or transmitted by
EDI (if available) to Spec Papers Ltd. Orders must
be made in multiples of standard pack quantities
(where available).
2.3 Spec Papers Ltd will use reasonable endeavours to
fulfil accepted orders and comply with any
requested or estimated date for delivery but time will
not be of the essence in this regard and if Specialty
Papers ability to fulfil an accepted order is affected
by circumstances or events beyond its control
Specialty Papers may:
(a) Extend the date for delivery;
(b) With the Buyer's approval, alter the
specifications for the Goods to allow the
substitution of equivalent Goods; or
(c) Cancel the order without liability for breach.
2.4 Spec Papers Ltd may perform any of the obligations
undertaken by it and exercise any rights granted to it
under the Contract through any other company
which at the relevant time is its holding company or
subsidiary or the subsidiary of any such holding
company and any act of any such company will for
the purposes of the Contract be deemed to be the
act of Specialty Papers.
2.5 Spec Papers Ltd policy is one of constant
improvement and therefore changes of
specifications and performance data may be made
by Spec Papers Ltd without notice and without
incurring liability to the Buyer.
3. QUALITY
3.1 Subject to these terms Spec Papers Ltd warrants to
the Buyer that all Goods manufactured or supplied
by Spec Papers Ltd will be free from defects due to
faulty factory materials or workmanship and will
comply with any specification for them published by
Spec Papers Ltd or agreed in writing. In the case of
any services supplied, Spec Papers Ltd warrants
that it will supply the services to the Buyer at a
standard of care and skill that is reasonably to be
expected.
3.2 The Buyer is responsible for informing and keeping
Spec Papers Ltd updated on the import and other
regulatory requirements for the Goods in any
notified territory and Spec Papers Ltd agrees to use
its best efforts to work with the Buyer in order to
meet such requirements. However, if any Goods
supplied by Spec Papers Ltd to the Buyer fail to
meet the import or other regulatory requirements of
any notified territory for which the Goods are
manufactured, the Buyer’s sole remedy shall be the
return of the Goods in good order and condition to
Spec Papers Ltd at the Buyer’s cost.
3.3 Except as provided in these terms, all express and
implied warranties, guarantees and conditions under
statute or general law as to merchantability,
description, quality, suitability or fitness of the
Goods for any purpose or as to design, materials or
workmanship or otherwise are expressly excluded.
3.4 To the fullest extent permitted by law, Spec
Papers Ltd will not be liable for any loss, injury or
damage (including, without limitation, loss of profit,
consequential and economic loss) sustained by the
Buyer or any other person (whether to a person or
to property and whether directly or indirectly) from
the supply of any Goods. The Buyer agrees to
indemnify Spec Papers Ltd and keep Spec
Papers Ltd indemnified against any claim, demand or
proceedings made or brought arising from such
loss, injury or damage.
4. PRICE
4.1 Prices charged for Goods will be according to a
Current Quotation for those Goods. Otherwise they
will be determined by Spec Papers Ltd by reference
to its standard prices in effect at the date of Delivery
(whether notified to the Buyer or not and regardless
of any prices contained in the order). Spec Papers Ltd will use its best endeavours to notify the
Buyer of price changes but bears no liability in this
regard.
4.2 Unless specifically indicated, prices in quotations or
elsewhere do not include insurance, special
packing, delivery or Taxes
4.3 Any reference to resale prices contained in
Spec Papers Ltd standard price lists or other
documents (if any) are recommended resale prices
only and there is no obligation on the Buyer to
comply with these recommendations.
4.4 Prices shown in Spec Papers Ltd price list are
exclusive of Goods and services Taxes, sales Taxes
and other indirect Taxes unless otherwise stated
and such Taxes, where applicable, will be charged
in accordance with current legislation.
5. DELIVERY AND PACKING
5.1 Unless otherwise agreed, Goods sold to the Buyer
shall be supplied ex Spec Papers Ltd premises.
5.2 Unless otherwise indicated or agreed, prices include
standard packing by Spec Papers Ltd and any
special packing will be to the Buyer's account.
5.3 If packing is charged for and is returnable allowance
will only be made for packing which has been
received back by Spec Papers Ltd in good
condition. Ownership of pallets used for Delivery
remains with the Buyer.
6. PAYMENT
6.1 Terms of payment by the Buyer will be by net cash
in exchange for Goods; for Buyers fulfilling Specialty
Papers credit requirements - net cash by the 20th of
the month following, invoice date or otherwise as
agreed in writing.
6.2 Spec Papers Ltd will provide an invoice to the Buyer
who will pay the invoice in full to Spec Papers Ltd
within the time specified above or on the invoice.
Spec Papers Ltd
Terms and Conditions of Sale - April 2008
2
6.3 All payments to Spec Papers Ltd will be made
without set-off, deduction or counterclaim.
6.4 If the Buyer fails to pay the invoice in full to
Spec Papers Ltd when due, Spec Papers Ltd will be
entitled (without prejudice to any other right or
remedy it may have) to:
(a) cancel or suspend any further delivery to the
Buyer under any order;
(b) cease or suspend provision of any services
provided to the Buyer under any order;
(c) charge the Buyer interest on the overdue
amount at the rate that would be payable by
Spec Papers Ltd to its bankers for overdraft
accommodation from the date of invoice to
the date of full and final payment
(irrespective of whether the date of payment
is before or after any judgment or award in
respect of the overdue amount).
7. CLAIMS
7.1 Any claim by the Buyer for incorrect orders,
shortages, overcharges and the like will only be
recognised by Spec Papers Ltd if made in writing
and forwarded within 14 days of the date of invoice
or Packing Slip to Spec Papers Ltd.
7.2 Any claims by the Buyer for Goods lost or damaged
in transit following Delivery should be made to the
relevant carrier or transport authority and unless
otherwise agreed Spec Papers Ltdis not
responsible for such loss or damage.
7.3 Return of Goods to Spec Papers Ltd by the Buyer
may only be made if Spec Papers Ltd has agreed to
that return.
8. INSURANCE, RISK AND PROPERTY
8.1 Unless otherwise agreed, Goods are not insured by
Spec Papers Ltd.
8.2 The risk of damage, loss or deterioration to any
Goods will pass to the Buyer either on Delivery or
on the expiry of 14 days from the date of notification
by Spec Papers to the Buyer that the Goods are
ready for collection.
8.3 Notwithstanding that risk in the Goods may pass to
the Buyer, property in and title to the Goods will not
pass to the Buyer until those Goods and all other
amounts owed to Spec Papers Ltd by the Buyer
(regardless of any credit period) have been paid for
in full and until then:
(a) The Buyer will hold the Goods as a fiduciary
bailee of Spec Papers Ltd;
(b) the Goods must be stored separately and in
a manner enabling them to be identified and
cross-referenced to particular invoices and
the Buyer acknowledges that if it should mix
the Goods with other products or items such
that the Goods are no longer separately
identifiable then the Buyer and Spec
Papers Ltd will be owners in common of the
new product;
(c) the Buyer may sell the Goods in the
ordinary course of its business as agent for
Spec Papers Ltd and will hold the proceeds
of sale in a separate account and account to
Spec Papers Ltd for those proceeds; and
(d) Spec Papers Ltd may require the Buyer to
return the Goods to it on demand and may
enter upon the premises of the Buyer to
inspect or repossess the relevant Goods.
8.4 The Buyer shall insure the Goods against theft or
any damage until their price has been paid or until
sale - whichever first occurs - and Spec Papers Ltd
will be entitled to call for details of the insurance
policy. If the Buyer does not insure the Goods or
fails to supply details of its insurance policy the
Buyer will reimburse Spec Papers Ltd for the cost of
any insurance which Spec Papers Ltd may
reasonably arrange in respect of Goods supplied to
the Buyer.
9. WARRANTIES
9.1 The warranty in clause 3.1 does not apply in respect
of defects specifically drawn to the Buyer's attention
or defects arising from: the failure to meet import or
other regulatory requirements for any territory;
incorrect or negligent handling; disregard of
operating and/or maintenance instructions;
overloading or unsuitable operating conditions;
defective civil or building work; lightning, accident;
neglect, faulty erection or installation (unless carried
out by Spec Papers Ltd); unauthorised repairs or
alterations; acts of God or other causes beyond
Spec Papers Ltd control.
9.2 Spec Papers Ltd liability under clause 3.1 is limited
(at Spec Papers Ltd option) to replacement or repair
or payment of the cost of replacement or repair of
the relevant Goods or repayment of the price where
it has been paid. In the case of any services
supplied, Spec Papers Ltd liability under clause 3.1
is limited (at Spec Papers Ltd option) to the
supplying of the services again; or the payment of
the cost of having the services supplied again. Any
claim in respect of a breach of the warranty in
clause 3.1 should be made within 12 months of the
date of Delivery of the relevant Goods.
9.3 Spec Papers Ltd liability to the Buyer for breach of
any implied term not excluded by clause 11.1(c) will
be limited (at Spec Papers Ltd option) to
replacement or repair or payment of the cost of
replacement or repair of the relevant Goods or
repayment of the price where it has been paid. In
the case of any services supplied, Spec Papers Ltd
liability to the Buyer for breach of any implied term
not excluded by clause 11.1(c) will be limited (at
Spec Papers Ltd option) to the supplying of the
services again; or the payment of the cost of having
the services supplied again.
9.4 To the fullest extent permitted by law, Spec
Papers Ltdwill not be liable to the Buyer for loss of
profit or other economic loss; direct, indirect or
consequential loss; special, general or other
damages; or other expenses or costs arising out of
any breach of the Contract or any common law duty
(including negligence) by Spec Papers Ltd, its
agents or employees.
10. OTHER ITEMS
10.1 The sale to and purchase by the Buyer of any
Goods does not confer on the Buyer any licence or
right under any Intellectual Property which is the
property of Spec Papers Ltd and the Buyer will
conform to all reasonable requirements imposed by
Spec Papers Ltd with respect to trade marks, or
identification marks in respect of the Goods.
Spec Papers Ltd
Terms and Conditions of Sale - April 2008
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10.2 Any Intellectual Property created during the course
of performing any services under the Contract will
remain the property of Spec Papers Ltd and the
Buyer will have a first right of refusal to licence the
Intellectual Property on terms acceptable to
Spec Papers Ltd in its absolute discretion by prior
written agreement.
10.3 The copyright in any report provided to the Buyer by
Specialty Papers after performing any services
under the Contract will remain the property of
Spec PapersLtd. The Buyer will have a licence to
use and copy any such report for the purposes for
which the services have been supplied, provided
that the Buyer pays all monies due to Spec
Papers Ltdcunder the Contract in full.
10.4 The Buyer acknowledges and agrees that where
any services provided under the Contract involve
research, development and testing, they may
produce no results, unpredictable results or results
that do not favour the Buyer. Spec Papers Ltd
makes no promise, prediction or warranty
concerning any such results.
10.5 Spec Papers Ltd will be entitled to set off against
any monies owing to the Buyer amounts owed to
Spec Papers Ltd by the buyer under the Contract or
on any other account.
11. MISCELLANEOUS
11.1 Each party acknowledges and agrees that:
(a) The Contract represents the entire
agreement between the parties and
supersedes all previous agreements;
(b) It has not entered into the Contract in
reliance on, or as a result of any statement
or conduct of any kind (including without
limitation, any representation, warranty,
advice or undertaking);
(c) All conditions, warranties or other terms
implied by statute or common law are
expressly excluded to the fullest extent
permitted by law; and
(d) The Contract may only be amended by
agreement in writing.
11.2 Nothing in these Terms and Conditions of Sale shall
entitle the Buyer to any priority of supply of Goods
as against Spec Papers Ltd other distributors,
agents and customers.
11.3 New Zealand law and the jurisdiction of the courts of
New Zealand will apply to this Contract. The Vienna
Convention on Contracts for the International Sale of
Goods is excluded.
12. DEFINITIONS AND INTERPRETATION
In these Terms and Conditions of Sale the following
terms have the following meanings unless the
context requires otherwise:
' Spec Papers Ltd ' means Spec Papers Ltd,
'Buyer' means a person from whom Spec
Papers Ltd accepts an order for Goods.
'Contract' means the agreement constituted by
Spec Papers Ltd acceptance of the Buyer's order
and includes these Terms and Conditions of Sale.
'Current Quotation' means a quotation no older than
28 days at the time the order is received by
Spec Papers Ltd.
'Delivery' means delivery of any Goods to the Buyer
or to a carrier arranged by the Buyer or Spec
Papers Ltd(at the request of the Buyer).
'Goods' means the products and, if any, services
specified in the Buyer’s order.
'Intellectual Property' means statutory and other
proprietary rights in respect of copyright and
neighbouring rights; all rights in relation to
inventions, patents, plant varieties, registered and
unregistered trade marks, registered and
unregistered designs, circuit layouts and confidential
information; and all other rights with respect to
Intellectual Property as defined in Article 2 of the
July 1967 Convention Establishing the World
Intellectual Property Organisation
'Tax' means any tax, levy, charge or duty imposed
by any governmental entity or authority (including,
without limitation, sales tax and customs or import
duty) on or in relation to Goods sold to the Buyer
(excluding taxes on Spec Papers Ltd income and
capital gains).
