CONDITIONS OF SALE
EFFECTIVE 1 JANUARY 2017
A.General Cable New Zealand Ltd (GC) is in the business of manufacturing and supplying cable and related accessories.
B.The buyer has requested that GC supply cable and/or other products to it.
C.GC's agreement to supply and the buyer's agreement to purchase the products is set out in these Conditions of Sale, and now reflect the position that GC has announced that a managed wind down and closure of General Cable Corporation's manufacturing and support operations in New Zealand will occur in 2017.
1.1In these Conditions of Sale:
'the buyer' means the buyer as described above.
'confidential information' means:
(a)the existence of the contract, its subject matter and the terms and conditions contained in it; and
(b)any information which is not public knowledge and which is obtained from the other party pursuant to or in the course of the negotiation or implementation of the contract.
'the contract' means these Conditions of Sale between GC and the buyer for the purchase of the goods together with the relevant purchase order and confirmation of order.
'cut-to-length service fee' means $40.00 or such other fee determined by GC from time to time upon the giving of twenty (20) working days prior notice.
'delivery' occurs at the earlier of when goods are delivered to the buyer's premises and when they are signed for and 'delivered' has a corresponding meaning.
'the goods' means the cable, services and accessories supplied or to be supplied by GC to the buyer including cable and accessories made to order pursuant to clause 4.1.
'minimum transaction value' means $500.00 or such other value determined by GC from time to time and notified to the buyer upon the giving of twenty (20) working days prior notice.
'the price' means the price of the goods in New Zealand dollars determined in accordance with these Conditions of Sale. This may include (but is not limited to) the quoted price, price list price or contract price.
'quote' means a quote issued by GC to the buyer in relation to specific goods.
'service fee' means $50.00 or such other fee determined by GC from time to time upon the giving of twenty (20) working days prior notice.
'specifications' means the specifications for goods made to order by GC for the buyer as described in the quotation.
'specification change order' means a specification change order made in accordance with clause 4.
'working day' means a day other than a Saturday or Sunday, on which are banks in Christchurch are generally open for business.
1.2Headings are used as a matter of convenience and shall not affect the interpretation of these conditions.
2.1These Conditions of Sale replace any existing written agreement between GC and the buyer for the supply of goods by GC to the buyer.
2.2Any purchase order and GC's confirmation of order (where the contract arises from an order by the buyer) together with these Conditions of Sale shall form the contract between GC and the buyer. Receipt of a purchase order from the buyer will be deemed to be acceptance by the buyer of these Conditions of Sale.
2.3Where there is a conflict between:
(a)GC's confirmation of order and these Conditions of Sale, GC's confirmation of order shall prevail;
(b)a purchase order and these Conditions of Sale, these Conditions of Sale shall prevail; and
(c)a quote and a purchase order, the quote shall prevail.
2.4No agent or representative of GC is authorised to make any representations, warranties, conditions or agreement not expressly confirmed by GC in writing and GC is not in any way bound by any such unauthorised statements nor can any such statements be taken to form a contract or part of a contract with GC.
2.5No contract or purchase order (whether or not confirmed) may be varied or cancelled without
GC's prior written consent and without payment of any variation or cancellation charge prescribed by GC.
3.1Purchase orders bind the buyer to the delivery of, and payment for, the quantities of the goods specified in the purchase order at the quoted price (where the purchase order is made in
reliance on a quote and delivery is required before the expiry of the quote) or the price determined in accordance with these Conditions of Sale (e.g. per price list or agreed contract).
3.2Purchase orders bind GC once GC has confirmed the purchase order in writing.
3.3Purchase orders must specify:
(a)the goods and quantity required;
(b)the specifications (if necessary);
(c)the required date and place of delivery;
(d)any relevant quote number, quoted price and quote expiry date;
(e)the relevant contract number;
(f)the delivery address; and
(g)all other relevant provisions.
3.4If the buyer fails to record any of the information as required by clause 3.3 above on the purchaser order or the buyer records incorrect information on the purchase order (such as an incorrect part number) and, as a result, GC incurs costs then GC may, at its option, require the buyer to reimburse it for such costs incurred.
3.5Purchase orders may be cancelled with GC's consent on payment of the costs incurred by GC in processing the order and manufacturing the relevant goods to the date written notice of GC's consent to the cancellation of the order is sent by GC to the buyer, on invoice by GC.
3.6If GC forms the view that the buyer is unable to fulfil any of the conditions of sale including the payment terms for any goods then GC may, in its sole discretion, suspend performance of its obligations under these Conditions of Sale, including manufacturing to meet the requirements of any purchase order or continuing to fill any purchase order.
4.GOODS MADE TO ORDER
4.1Where goods are made to order for the buyer, the buyer may issue a specification change order on the following grounds:
(a)to improve manufacture, including but not limited to, technological improvements, reduction in cost or time of production;
(b)to correct a problem in a design current at that time;
(c)to respond to a request from a buyer for a change to the design, manufacturing process or the specifications;
(d)to respond to a request from GC for a change to the design, manufacturing process or the specifications.
4.2The specification change order is to specify:
(a)the change to the specifications;
(b)the name and signature of the person with the authority to approve and release the specification change order;
(c)the date from which the specification change order is effective; and
(d)whether the specification change order is effective in respect of any or all of the following:
(i)new production; or
(ii)existing stock; or
4.3If GC accepts the request and confirms this to the buyer in writing, GC shall carry out and comply with any specification change order made under these Conditions of Sale. The cost of complying with the specification change order shall be added to or deducted from the price of goods and will be set in the specification change order confirmation from GC. Any dispute over the appropriate adjustment shall be determined in accordance with the procedure set out in clause 17.
4.4If manufacturing or procurement has begun before a specification change order request is confirmed by GC to the buyer any completed items, work in progress or raw materials that cannot be altered or will not be required to comply with the specification change order will be invoiced to the buyer. This will be at the previously agreed price (in terms of completed items) or at the cost of manufacture and processing the order to the date GC accepts in writing the specification change order request.
5.1Subject to clauses 5.2 and 5.3, the price for goods will be as set out in the relevant quote or, in the absence of a quote, as invoiced by GC using the agreed pricing applicable at the date of delivery.
5.2Unless there has been a failure on the part of GC to supply goods on or before an agreed delivery date, a price specified in a quote will cease to apply to an order where the quote has expired at the time of delivery. Quotes expire twenty (20) working days after submission to the buyer by GC unless otherwise noted on the quote.
5.3The buyer agrees that the price for goods the subject of a quote may exceed the price in the quote where the price to GC of raw materials and other manufacturing costs have increased since the time of the quote and the exchange rate has moved against GC, in which case the quoted price may be increased by GC to reflect the increased price of metals and the change in the exchange rate.
5.4The price excludes freight unless otherwise specified. Freight surcharges may also apply to after hours or weekend deliveries.
5.5Price change notifications will be at GC's discretion.
5.6Goods and Services Tax and other taxes and duties assessed or levied in connection with the supply of the goods to the buyer are not included in the price and shall be payable by the buyer in addition to the price or, where the payment of such taxes or duties is the responsibility of GC at law, the price shall be increased by the amount of such taxes or duties.
5.7GC will charge the service fee in respect of each transaction which relates to goods with a total price (including all standard charges) of less than the minimum transaction value.
5.8GC will charge a flat cut-to-length service fee for each individual cut required. The cut-to-length service fee will not apply to standard packs and full drum lengths.
6.1Payment for goods delivered and payment of any other amounts invoiced by GC shall be made by the 20th of the month following invoice.
6.2GC may at any time require security for payment for goods and may suspend performance of its obligations under the contract until sufficient security is provided.
6.3For the avoidance of doubt, the buyer shall not be entitled to withhold payment for any goods where there is no dispute in relation to those goods i.e. if an invoice relates to a delivery where some goods are in dispute and some are not, then the buyer must pay for the goods that are not in dispute by the date specified in clause 6.1 above.
6.4All payments are strictly net. No deductions may be made for rebates until a credit note has been raised by GC and issued to the buyer.
6.5Any late payment or non-payment will constitute a default by the buyer in the performance of the contract. Interest at 4% per annum above the highest base overdraft rate charged by GC's principal bank at the time of commencement of the default may be payable from the time of commencement of the default until the date of payment but without prejudice to GC's other rights or remedies.
6.6In addition to interest, the buyer will be liable for all debt collection costs, including solicitor's costs, incurred by GC in recovering any outstanding amounts.
6.7GC may offset any payments due to the buyer while any overdue amounts payable to GC remain outstanding.
6.8If the buyer defaults in the due payment of any moneys payable to GC, whether under the contract or otherwise, or if the buyer is in default in the performance of its obligations under the contract or any other contract between GC and the buyer or if GC deems the credit of the buyer to be unsatisfactory GC, without prejudice to any other right it has at law or in equity, may, at its option, suspend or terminate the contract, and payment for goods delivered and work in progress up to the date of such suspension or termination and any other moneys payable hereunder shall immediately become due and payable.
7.1Delivery shall be made at the place specified in the relevant confirmation of order within New Zealand. If the buyer fails or refuses or indicates to GC that it will fail or refuse to take or accept delivery, then the goods shall be deemed to have been delivered when GC was willing to deliver them. The buyer will meet any costs incurred if goods have been turned away and returned to a depot. Off-loading shall be the responsibility and at the cost of the buyer.
7.2The date and place for delivery specified in the relevant confirmation of order may be changed at the request of the buyer with GC's consent.
7.3GC reserves the right to deliver the goods by instalments at times suitable to it in its sole discretion determined with reference to its manufacturing timetable.
7.4Should GC fail to deliver or make defective delivery of one or more instalments this shall not entitle the buyer to repudiate the contract.
7.5GC will not accept goods that have been damaged in transit for return where the buyer has indicated on its acceptance of delivery that they are in a satisfactory condition. Goods that are obviously damaged must be advised as such immediately on receipt.
7.6GC will not accept liability for goods delivered to sites other than business premises or where buyer staff are not present to receipt the goods.
8.1Any time for delivery of the goods shall be approximate only and shall not be deemed to be of the essence of the contract.
8.2While GC will use all reasonable endeavours to ensure that goods are delivered by their agreed delivery date, no penalty will be imposed on GC nor will a reduction in the price be available on the grounds of failure to meet a delivery date.
8.3If the manufacture, supply or delivery of the goods is delayed by reason of or as a result of any act, omission, default or request by or on behalf of the buyer, GC may, without prejudice to its other rights and remedies, require payment by the buyer of such portion of the price as represents the extent to which GC has performed the contract or carried out work required by the contract up to the date such payment is required together with the any expenses or additional costs incurred by GC as a result of such delay. In the event of such delay continuing beyond a reasonable time, GC may, without prejudice to its other remedies, terminate the contract.
9.1Risk of any loss, damage or deterioration of or to the goods shall be borne by the buyer from the date of delivery of the goods.
9.2The buyer must notify GC in writing within three (3) working days of the date of delivery of the goods should there be any discrepancy in the goods which should have been delivered and the
goods actually delivered including details of any deficiencies in quantity, quality and so on (the “Notice”). Upon GC's receipt of the Notice, GC will have twenty (20) working days to investigate the details of discrepancies or deficiencies in respect of the goods as provided in the Notice before deciding on the appropriate course of action.
9.3From the time of delivery until property in the goods passes to the buyer, the buyer will insure the goods against all appropriate risks and provide copies of all insurance policies or certificates of currency to GC on request.
9.4If any of the goods are damaged or destroyed prior to property therein passing to the buyer, GC shall be entitled, without prejudice to any of its other rights or remedies under the contract, to receive all insurance proceeds which are payable in respect thereof (whether or not the price of such goods has become payable under the contract).
10.1Unless the context otherwise requires terms and expressions in this clause 10 that are defined in the Personal Property Securities Act 1999 (“PPSA”) shall have the same meaning in this clause 10 as in the PPSA and references to the goods include references to any one of them.
10.2The buyer grants GC a security interest in the goods as security for all amounts owing by the buyer to GC and performance of the buyer's obligations under the contract.
10.3The buyer shall ensure that it is always able to identify:
(a)the goods from any other goods that may be in the buyer's possession; and
(b)the particular goods to which any invoice relates.
10.4Title to the goods shall remain in GC until there are no longer any amounts owing to GC by the buyer.
10.5Until title to any particular goods passes to the buyer, the buyer shall:
(a)return those goods to GC on request; and
(b)deposit any cash proceeds of those goods for GC in a separate account named the “General Cable Proceeds Account” and notify the bank where that account is held of GC's interest in the moneys in that account.
10.6If the buyer fails to comply with any term of the contract or any other agreement between GC and the buyer, GC or GC's agent may, in addition to any other rights and remedies either of them may have at law (including under any statute), enter any land or building owned, occupied, or used by the buyer, to search for and re-take possession of the goods.
10.7The buyer agrees that sections 114(1)(a), 133 and 134 of the PPSA shall not apply on the enforcement by GC of any security interest created or provided for by the contract. The buyer also waives any rights it may have under sections 116, 119, 120(2), 121, 125, 129 and 131 of the PPSA on such enforcement.
10.8The buyer acknowledges receipt of a copy of these Conditions of Sale and waives any right it may have to receive from GC a copy of any financing statement, financing change statement or verification statement that is registered, issued, or received at any time in relation to the contract.
10.9The buyer will not change its name without giving GC fifteen (15) working days' notice of what its new name will be.
10.10The buyer shall pay all costs and expenses of GC in relation to compliance with any demand given by the buyer under section 162 of the PPSA, or in relation to any application for, or the obtaining of, a court order to maintain any registration in respect of any of the security interests created under these Conditions of Sale and the serving of any such court order on the buyer or the Registrar of Personal Property Securities.
10.11Any payment received from the buyer may be applied by GC to all or part of the amount owing for any goods as GC sees fit irrespective of whether that payment is intended by the buyer to be for particular goods or in respect of a particular invoice.
10.12Any payment received from the buyer that is not applied by GC under clause 10 shall first go towards satisfying the buyer's obligation to pay for goods that, at the time of payment, have been sold by the buyer. The balance (if any) shall go towards satisfying the buyer's obligation to pay for goods that have not been sold by the buyer. This provision shall apply irrespective of the order in which goods have been delivered to the buyer, any entry contained in a statement of account issued by GC, any rule of law or any other matter.
10.13Clauses 10.11 and 10.12 shall apply to any payment received from the buyer irrespective of whether that payment is intended by the buyer to be for particular goods or in respect of a particular invoice.
10.14When there are amounts owing by the buyer to GC, the buyer shall, at the request of GC, promptly provide a written inventory of any dealings with the goods, including details of those goods that have:
(a)been sold by the buyer;
(b)become an accession; or
(c)been so manufactured, processed, assembled, or commingled that their identity has been lost.
Where the buyer has previously provided an inventory to GC any subsequent inventory need only include details of any dealings with the goods since the most recent inventory. If requested by GC an inventory shall also include the amount and location of any proceeds that the buyer is at that time holding on trust for GC.
10.15Notwithstanding that property in the goods is retained by GC, the buyer is hereby authorised to sell the goods in the ordinary course of business. Such authority:
(a)may be revoked by written notice from GC at any time if GC deems the credit of the buyer to be unsatisfactory or the buyer is in default in the performance of its obligations under the contract or any other contract between GC and the buyer; and
(b)shall be deemed automatically revoked if the buyer enters into any composition or arrangement with its creditors, passes a resolution for its liquidation or the appointment of a voluntary administrator or a liquidator, voluntary administrator or receiver is appointed.
11.1Unless goods are returned pursuant to a warranty claim GC will not accept the return of any goods.
12.1GC will make good, subject to the availability of replacement stock, any defects in materials or workmanship arising within 6 months from the date of delivery of the goods. If no product is available then a payment will be made to the buyer in accordance with clause 12.4. No claim shall be accepted unless written notice of the claim is received by GC as soon as reasonably possible after the defect is discovered nor shall any claim be accepted if:
(a)any attempt to repair the defective goods is made by any person not authorised by GC to effect such repairs; or
(b)the defective goods have been modified or incorrectly stored, maintained, installed or operated.
12.2Any conditions, warranties, descriptions, representations, conditions as to fitness or suitability for any purpose, tolerance to any conditions, merchantability or otherwise (whether of a like nature or not) and whether express or implied by law, trade custom or otherwise are expressly excluded.
12.3If the goods or any component or components thereof are not manufactured by GC, then the foregoing warranty shall not apply to such goods, component or components as are not manufactured by GC and no warranties are given by GC in respect of such goods, component or components.
12.4If GC fails to perform its warranty obligations under clause 12.1 hereof, GC's liability for such failure shall be damages which shall not in aggregate exceed the price for the goods concerned.
12.5The buyer warrants that the design, materials, documents and methods of working for each of the goods that is made to order for it by GC shall not infringe any intellectual property rights.
13.1GC shall not be liable for any loss of profits or any other consequential, indirect or special loss suffered by the buyer or any other person arising from any breach by GC of the contract or from any negligence on the part of GC, its employees, agents or contractors in relation to the contract.
13.2The buyer shall not have any right of recourse (whether by legal proceedings or otherwise) against GC in respect of any claims made against the buyer by any third parties in relation to any loss of profits or any other consequential, indirect or special loss suffered by any such third parties arising from any breach by GC of the contract or from any negligence on the part of GC, its employees, agents or contractors in relation to the contract.
13.3Notwithstanding anything contained in this clause or contained elsewhere in the contract, the liability of GC, whether in contract, tort or otherwise, in respect of all claims for loss, damage or injury arising from breach of any of GC's obligations arising under or in connection with the contract or otherwise shall not in aggregate exceed the price for the goods concerned.
14.DIMENSIONS AND SPECIFICATIONS
14.1Dimensions and other descriptions of goods contained or referred to in the contract or in any catalogues or other publications maintained or issued by GC are estimates only. Unless otherwise expressly agreed in writing, it is not a condition of the contract that the goods, where they are not made to the buyer's specifications, will correspond precisely with such dimensions and descriptions, and customary tolerances, or in the absence of customary tolerances, reasonable tolerances, shall be allowed.
15.1Ownership of the intellectual property rights associated with the goods and any manufacturing process for the goods and any documentation provided by GC pursuant to these Conditions of Sale is vested and shall vest in GC.
16.1Neither party will be liable for any act, omission, or failure to fulfil its obligations under these Conditions of Sale if such act, omission or failure arises from any cause reasonably beyond its control including strikes, lockouts, riots, acts of war, epidemics, governmental action superimposed after the date of these Conditions of Sale, fire, communication line failures, power failures, earthquakes or other disasters (“Force Majeure”).
16.2The party unable to fulfil its obligations due to a Force Majeure shall:
(a)immediately notify the other in writing and provide full information concerning the Force Majeure event including an estimate of the time likely to be required to overcome the event;
(b)use its best endeavours to overcome the event and minimise the loss to the other party; and
(c)continue to perform its obligations as far as practicable.
17.1The parties will meet and discuss in good faith any disputes between them arising out of the contract.
17.2If the discussions referred to in clause 17.1 fail to resolve the relevant dispute within twenty (20) working days of the dispute arising, any party may (by written notice to the other parties) require that the dispute be submitted for mediation by a single mediator nominated by the President for the time being of the Canterbury District Law Society or its successor. In the event of any such submission to mediation:
(a)the mediator will be deemed to be not acting as an expert or an arbitrator;
(b)the mediator will determine the procedure and timetable for the mediation.
17.3The cost of the mediation will be shared equally between the parties to the dispute.
17.4If the dispute has not been resolved within twenty (20) working days of the mediator being appointed or such longer period agreed in writing by the parties then the parties agree to refer the dispute to arbitration in accordance with the Arbitration Act 1996 (excluding clauses 4 and 5 of the Second Schedule of that Act). The arbitration shall be conducted by one arbitrator appointed by the parties to the dispute, if the parties to the dispute can agree upon one, or, failing agreement, one arbitrator to be appointed by the President for the time being of the Canterbury District Law Society or its successor. The parties agree to be bound by the award of the arbitrator.
17.5Pending final settlement of any dispute, the parties shall continue to perform their obligations under the contract so far as possible as if no dispute had arisen.
17.6Nothing in this clause 17 shall preclude a party from taking immediate steps to seek equitable relief before a New Zealand Court prior to the award of an arbitrator being given.
18.1Each party agrees that it will not without the prior written consent of the other use confidential information or disclose confidential information to any person other than those of its officers, employees and advisers essential to the implementation of the provisions contained in it or as required by law.
18.2Each party shall use its best endeavours to ensure those of its officers, employees and advisers to whom confidential information is disclosed in terms of clause 18.1 are aware of and comply with the confidentiality obligations imposed by that clause.
18.3If a party is required by law to disclose any confidential information it will immediately, and prior to such disclosure, advise the other party.
18.4The obligations under this clause shall survive termination or cancellation of this agreement.
18.5Except as required by law, neither of the parties shall make any announcement or disclosure relating to the existence of these Conditions of Sale or its subject matter or terms except in such form and manner, and at such time as the parties agree.
19.1Each notice, agreement and other communication (each a "communication") to be given, delivered or made under these Conditions of Sale is to be in writing but may be sent by personal delivery, post (by airmail if to another country), email or facsimile.
19.2Each communication under these Conditions of Sale is to be sent to the address, email address or facsimile number of the relevant party set out below or to any other address from time to time designated for that purpose by at least five (5) working days' prior notice to the other.
19.3A communication under these Conditions of Sale will only be effective:
(a)in the case of personal delivery, when delivered;
(b)if posted or delivered to a document exchange, five (5) working days, in the place of receipt, after posting (by airmail if to another country) or delivery to the document exchange;
(c)if sent by email, on the date and time at which it enters the recipient's information system (as shown in a confirmation of delivery report from the sender's information system, which indicates that the email was sent to the email address of the recipient designated for the purposes of these Conditions of Sale); and
(d)if made by facsimile, upon production of a transmission report by the machine from which the facsimile was sent which indicates the facsimile was sent in its entirety to the facsimile number of the recipient designated for the purposes of these Conditions of Sale,
provided that any communication received or deemed received after 5pm or on a day which is not a working day shall be deemed not to have been received until the next working day.
20.1All the original rights, powers, exemptions and remedies of GC shall remain in full force notwithstanding any neglect, forbearance or delay in the enforcement thereof. GC shall not be deemed to have waived any condition unless such waiver shall be in writing under signature of GC or an authorised officer thereof and any such waiver, unless the contrary shall be expressly stated, shall apply to and operate only in particular transaction, dealing or matter.
21.1The buyer may not assign all or any of his rights or obligations under the contract without the prior written consent of GC.
22.1Nothing contained in the contract is deemed to constitute the parties partners nor, except as otherwise expressly provided in the contract constitute any party the agent or legal representative of another party. No party has authority to act or to assume any obligation or liability on behalf of any other party except as expressly provided in these Conditions of Sale.
23.LAW AND JURISDICTION
23.1The contract shall in all respects be deemed to be a contract made in New Zealand and the construction, validity and performance of the contract shall be governed by New Zealand Law and the New Zealand courts will have exclusive jurisdiction in relation to the contract.
GENERAL CABLE NEW ZEALAND LIMITED
1 January 2017