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Trading Terms

 
  1. Olex New Zealand Ltd (Olex) will contract on these terms only. Receipt of an order from the buyer will be deemed to be acceptance by the buyer of these terms, notwithstanding anything that may be stated to the contrary in the buyer's orders.
  2. Goods are offered subject to availability.
  3. Prices are subject to change without notice. Goods ordered will be supplied at the prices in effect at the date of consignment less any percentage discounts which may have been offered.
  4. Prices include Olex's standard packaging but do not include cutting to Customer length requirements. Olex may charge an additional fee or fees for cut-to-length service, special packaging or freight and handling arrangements. These charges may vary from time to time and can be confirmed at placement of order.
  5. Quoted prices are valid for 30 days from the date printed on the quote. All goods ordered and supplied within the validity period will be at the quoted prices. At the end of that 30 day period prices cannot be guaranteed and are subject to revision.
  6. Olex will repair or replace free of charge goods damaged in transit up to the point of delivery specified in the quotation or agreement, provided that the consignment note is endorsed as damaged at the time of delivery to the buyer.
    1. Olex shall not be liable for any loss or damage whatsoever caused by any factors beyond the control of Olex and without limiting the generality of the forgoing, loss or damage due to delay in delivery caused by strikes, lockouts, labour disputes of any kind, delays or defaults of other manufacturers or suppliers, unavailability of materials or components, breakdowns of plant, delay in transportation, acts of government , acts of God, or any other contingency or event beyond the control of Olex.
    2. Time periods for delivery quoted by Olex are estimates only, not involving any contractual obligation on the part of Olex, and shall not in any event commence until the buyer has provided any information necessary to enable Olex to carry out the contract. Olex shall be entitled to cancel, suspend or delay production, delivery, or installation of the goods in the event of the occurrence of any event or contingency referred to in subclause a).
  8. Any performance figures in our quotation are not guaranteed but are such as are based on experience and expected to be obtained on test. No liability is accepted by Olex if those figures are not achieved. All specifications and drawings provided with our quotation or included in catalogues or advertisements are approximate only and do not form part of the contract of sale. The goods shall be subject to the standard tolerances of the industry.
    1. Except to the extent provided for in clause 4 and in this clause or any express written agreement to the contrary.
      1. All warranties, conditions, descriptions representations as to the fitness for the purpose or suitability or otherwise (whether express or implied by the law, trade, custom or course of dealing or otherwise) in respect of the goods are expressly excluded;
      2. Olex shall be under no liability whatsoever, in contract, tort, or under any statute or otherwise for any injury, loss or damage arising out of or caused by any defect in the supply or installation of or the failure to supply or install the goods. In particular Olex shall in no circumstances be liable for any consequential loss or damage or any economic loss howsoever arising, whether caused by Olex’s negligence, wrongful act, omission or otherwise.
    2. Olex liability in respect of any defect in, shortage in quantity of or failure of the goods or for any loss or damage attributable thereto is limited to:
      1. In respect of defects in goods manufactured by Olex, making good by (at Olex’s option) refund of the price, replacement or repair defects which under proper use of the goods appear therein within a period of twelve months from the date of delivery (and in the event of installation or erection by Olex within a period of twelve months after completion of installation or erection) and are caused by faulty design, defective material or workmanship provided that ;
        1. Olex is notified of the defect within seven days of the defect arising;
        2. Olex is given a reasonable opportunity to investigate the claim;
        3. The goods are returned to Olex without undue delay;
        4. All costs in respect of the dismantling (where appropriate) and return of the goods to Olex, the delivery of the repaired or replaced goods to the buyer and the reinstalling of same (where appropriate) shall be for the buyer’s account.
      2. In respect of defects in goods not manufactured by Olex to such amount (if any) as Olex shall have received from its supplier in respect thereof:
      3. In respect of shortages in quantity, to making up shortages in quantity provided that:
        1. The claim is notified to Olex within three days of delivery
        2. Olex is given a reasonable opportunity to investigate the claim.
  10. Olex is authorised to pass personal information to a credit reporting agency/ies for the purpose of credit checking. This information will be used by the credit reporting agency/ies to update and maintain credit information files and will be accessed by the customers of the credit reporting database.
  11. Unless otherwise agreed in writing, the terms of payment are:
    1. Strictly net; and
    2. Payment in full on the 20th day of the month following delivery.
      Olex reserves the right to treat each separate delivery as a separate contract for the purpose of payment and to limit the amount of credit or withdraw monthly credit facilities at any time.
  12. If the buyer fails to make payment to Olex by the due date it shall be liable to pay to Olex default interest thereon at the then current ANZ commercial unsecured overdraft rate for the period for which it remains unpaid which interest shall accrue on a daily basis and shall accrue after as well before judgement and shall also be liable to pay on demand all expenses and legal costs of Olex (calculated as between solicitor and own client) in relation to obtaining remedy of the failure to comply. 
  13. Olex shall be entitled to refuse to deliver the goods if there are any outstanding moneys owing to it by the buyer however such refusal to deliver shall not entitle the buyer to cancel the contract.
  14. The buyer shall make all payments due to Olex whether in respect of the purchase price or otherwise howsoever in full without deductions of any nature whatsoever whether by way of set off, counter claim or other equitable or lawful claim or otherwise howsoever.
    1. Property in any goods delivered by Olex to the buyer shall not pass (and the buyer shall be a bailee only in a fiduciary capacity in respect of such goods) until the buyer shall have paid all that is owing to Olex whether in respect of the purchase price or contingently or otherwise howsoever. The borrower acknowledges that the retention of title clause herein will create a security interest within the meaning of Section 17 of the Personal Property Securities Act 1999.
    2. Where ownership in any goods passed to the buyer is retained by Olex in accordance with these terms we reserve the right to register a financing statement on the Personal Property Securities Register to prioritise and protect a security interest. The buyer hereby agrees to provide Olex with any or all information of the client referred to in Section 142 of the Personal Property Securities Act 1999 being of a personal nature or otherwise to enable Olex to register a financing statement.
    3. If prior to its acquiring property in any goods the buyer shall sell or purport to sell the same the buyer shall be deemed to be selling or purporting to sell as the agent of Olex and shall hold as trustee for and hand over to Olex the claims it has against its purchaser in respect of each sale or where the buyer has received the proceeds of sale or where the buyer has received the proceeds of sale of any such goods it shall hold such proceeds of sale on trust for Olex.
    4. Prior to the buyer acquiring property in any goods Olex may at any time directly or by its agents or servants enter upon any land, premises or property where it believes such goods may be to view and inspect the same and if the buyer fails to make any payment in full on the due date to Olex’ reasonable opinion unable to pay its debts when due or a receiver, liquidator, official assignee or statutory manager of the buyer’s assets is appointed or the buyer enters into an arrangement or composition with its creditors or the buyer defaults under the terms of any lease for the premises on which any or all of its goods are stored then:
      1. The right of the buyer or any agent of the buyer to possession of any goods and any right to sell or otherwise dispose of those goods shall immediately and without the necessity for any notice terminate; and
      2. Olex or its agents may at any time take possession of and remove the goods, by force if reasonably necessary. The buyer will reimburse indemnity and hold harmless Olex, its employees and agents in respect of any costs, expenses, loss or damage (including such to any third parties) in respect of the exercise or attempted exercise of Olex’ remedies under this clause; and
      3. Upon any removal of goods, the buyer expressly waives its right under Section 114 (1) (a) of the Personal Property Securities Act 1999 to receive 10 days notice of the sale of any collateral or inventory and the buyer also waives its right under Section 120 (2) to receive notice of Olex proposal to repossess any collateral or inventory. Furthermore the buyer also vaives its rights with respect to repossession by Olex pursuant to a security interest, damage to collateral during repossession, and damage to accession contained in Sections 125, 126, 127, 129, and 131 of the Personal Property Securities Act 1999 and acknowledge that they will not apply upon any enforcement by Olex of a security interest through repossession of collateral or inventory; an
      4. All monies owing by the buyer to Olex on any account whatsoever shall become immediately due and payable.
  16. The goods shall be at the buyer’s risk from delivery notwithstanding that the property in the goods remains with Olex
  17. The Buyer shall pay to Olex all goods and services tax or other value added tax on the goods / service supplied (including such tax payable in the event of default by the buyer).
  18. The term “Olex” means Olex New Zealand Limited. A subsidiary of Olex Holdings Pty Limited.
  19. This contract shall be governed by the law of New Zealand.
  20. Cancellation or variation of order
    20.1    The buyer may not:
            a. terminate an order; or
            b. reduce the quantity of Goods to be supplied under an order; or
            c. direct Olex to delay the date for delivery of the Goods under an order, without Olex’s written consent, which consent may be withheld in Olex’s discretion.
    20.2    Any request from the buyer to terminate the order or vary the order as described in clause 20.1 shall be in writing and shall not be effective until the date on which Olex gives consent (unless an earlier date is otherwise agreed). 
    20.3    If an order is terminated or the quantity of the Goods to be supplied is reduced, the buyer shall pay Olex reasonable and proper charges which shall include:
               a. a portion of the price reflecting the amount of work completed up to the date on which the termination (or variation) takes effect;
               b. any incurred or committed costs incurred by Olex;
               c. additional expenses incurred by reason of termination (or variation) of Olex’s agreements with its suppliers and subcontractors, including but not limited to, the financing costs related to raw materials in inventory; and 
               d. as liquidated damages:
                       (i) an amount equal to the negative difference, if any, between the value of the metal content of the Goods calculated using the London Metals Exchange rate referred to in the quote or the purchase order as the case may be, and the value of the metal content calculated using the official London Metals Exchange cash rate (i.e. for immediate delivery on the same date) on the date on which the termination or variation becomes effective, or if the quote or the purchase order makes no reference to an applicable rate for the determination of the value of the metal content, an amount equal to the negative difference, if any, between the value of the metal content of the Goods determined using the official London Metals Exchange cash rate prevailing on the effective date of the purchase order and the value of the metal content of the Goods determined using the official London Metals Exchange cash rate prevailing on the date on which the termination or variation becomes effective;

    and, if the price in the purchase order is not in US dollars,

                       (ii) an amount equal to the negative difference, if any, between the value of the metal content of the Goods as determined in 20.3 d.(i) converted from US dollars into the applicable price currency as per the exchange rate prevailing on the effective date of the purchase order and the value of the metal content of the Goods as determined in 20.3 d.(i) above converted from US dollars into the applicable price currency as per the exchange rate prevailing on the date on which the termination or variation becomes effective.

            20.4     The entitlement to payment described in clause 20.3 is in addition to and without prejudice to Olex’s other rights. 
            20.5     If the date for delivery of the Goods is postponed for the buyer’s convenience under clause 20.1 or is extended due to any other cause of delay attributable to the buyer, Olex shall be entitled to payment of the following amounts:
                        a. the amount which Olex would have been entitled to claim on delivery;
                        b. reasonable storage and handling costs for the Goods (if applicable); and
                        c. any additional expenses incurred by reason of the delay in delivery, including but not limited to, the financing costs related to raw materials in inventory or rolling over forward purchase of metal.
            20.6     Olex may render:
                        a. An invoice under clause 20.5 on the initial date for delivery; and 
                        b. invoices for storage, handling costs and additional expenses progressively each month as such costs are incurred. 
            20.7     Where the date for delivery of the Goods is postponed or extended as described in clause 20.5, the warranty period for the Goods shall commence as if delivery had taken place on the initial date for delivery (unless otherwise agreed in writing).