New Zealand terms and conditions
Orders are accepted only on the following terms and conditions.
1. DEFINITIONS In this acceptance unless the context otherwise requires: "Rio Tinto Aluminium" means Rio Tinto Aluminium (New Zealand) Limited: "contract" means the contract for sale of the goods of which this acceptance forms part: "customer" means the person, corporation, firm or body to whom this acceptance is addressed: "goods" means the goods sold and purchased or agreed to be sold and purchased pursuant to the contract.
2. METHOD OF TRANSPORT [a] Unless this contract specifies the means by which the goods are to be transported, they shall be transported by means chosen by Rio Tinto Aluminium. [b] If, at the customer's request, the goods are transported by means other than stated on this acceptance or chosen by Rio Tinto Aluminium, the customer shall pay all transport and other costs.
3. DELIVERY [a] Unless otherwise stated on this contract. Rio Tinto Aluminium shall deliver the goods to the customer's store where they shall be unloaded at the cost and risk of the customer. Delivery of the goods shall be deemed to be effected when the goods are unloaded from the delivery vehicle. [b] Risk in the goods shall pass to the customer on delivery or on deemed delivery of the goods herein provided.
4. TITLE [a] Legal title in the goods shall remain in Rio Tinto Aluminium until payment in full for the goods has been received by Rio Tinto Aluminium. [b] Until payment in full for the goods is received by Rio Tinto Aluminium, the customer shall hold the goods and any goods manufactured therefrom as bailee for Rio Tinto Aluminium and will, if required by Rio Tinto Aluminium, store the goods in such a manner that they are clearly identifiable as the property of Rio Tinto Aluminium. [c] If the goods and any goods manufactured therefrom are sold by the customer prior to payment in full of any amount outstanding to Rio Tinto Aluminium, the proceeds of such sale will be the property of Rio Tinto Aluminium and the customer will hold the proceeds of such sale on account of Rio Tinto Aluminium and keep the proceeds and the funds separate from its own money.
5. WEIGHTS AND TOLERANCES [a] Each Rio Tinto Aluminium invoice shall be prima facie evidence of the classification, number and measurement of goods delivered. [b] Unless otherwise stated on the quotation or product drawing, the goods shall be supplied and accepted within the tolerances in regard to quantity, weight, dimension, and chemical composition as specified in this acceptance or, if not so specified, as normally regarded as being commercially acceptable. Where the total mass or length of any item supplied includes a fraction of a tonne, the customer will be invoiced for and shall pay for that fraction.
6. PRICE The price of goods specified on this contract/order shall prevail irrespective of the time of delivery.
7. PAYMENT [a] The customer shall pay for the goods in New Zealand currency in the manner and within the time stated on this contract. [b] If the customer makes default in any payment due to Rio Tinto Aluminium or a resolution is passed or proposed or an application is presented for the winding up of the customer, or a receiver and/or manager is appointed for the property of any part of the property of the customer, or the customer is declared insolvent, or the customer makes or proposes to make any arrangement with its creditors, or execution is levied upon the assets of the customer, then Rio Tinto Aluminium may, at its option, do any or all of the following without prejudice to any other rights it has hereunder and without notice to the customer. [i] withhold any deliveries of goods [whether or not in transit]; [ii] if Rio Tinto Aluminium in its sole discretion so elects, specify that all monies outstanding hereunder, or under any other contract between Rio Tinto Aluminium become immediately due and payable on demand: [iii] immediately recover possession of any goods title to which is retained pursuant to paragraph 4[a] and for this purpose enter upon any premises of the customer or any other place where the goods may be situated: and [iv] terminate performance of the contract and any other contract with the customer. [c] If the customer makes default in any payment due to Rio Tinto Aluminium such payments shall bear interest at the ANZ Banking Group [New Zealand] Limited 30 days bank bill mid rate from the day the payment was due until the day payment is made.
8. WARRANTY [a] Rio Tinto Aluminium warrants: [i] that upon payment in full it shall give good title to the goods; and [ii] that the goods shall be free from defects in material and workmanship except such defects as are normally regarded as being commercially acceptable: and [iii] subject to paragraph 5[b] that the goods delivered pursuant to the contract shall conform to the description shown on this contract. Expressly excluded by the contract are any conditions or warranties [expressed or implied] that the goods are fit for a particular purpose, and, except as otherwise stated in this acceptance, any conditions or warranties [expressed or implied] relating to title, defects or conformity of the goods with a description. [b] No statement or recommendation made, or advice, supervision or assistance given by Rio Tinto Aluminium , its employees, agents or representatives, whether oral, written, published or otherwise, shall constitute a warranty by Rio Tinto Aluminium or a waiver of any of the provisions hereof, and Rio Tinto Aluminium accepts no responsibility therefor. Rio Tinto Aluminium shall not be liable for damage or loss arising directly or indirectly from any act of forbearance resulting from statements or recommendations so made, or advice, supervision or assistance given.
9. DESCRIPTIONS AND SAMPLES Any description of the goods contained in this contract shall be read in conjunction with the standards and specifications set and/or recognised by the Australian Aluminium Development Council. The contract shall not be construed as a sale by sample, even if exhibited or inspected by the customer.
10. DELIVERY BY INSTALMENTS When this contract states that the goods are to be delivered by instalments, each instalment shall be deemed to be sold under a separate agreement. If Rio Tinto Aluminium fails to deliver an instalment within the time stated on this contract or to deliver at all, the customer shall not be entitled to terminate performance of the contract with regard to any other instalments remaining to be delivered.
11. CANCELLATION, DEFAULT AND REMEDY [a] If the customer repudiates the contract or terminates its performance other than pursuant to paragraph 11[d]. or refuses to accept all or any of the goods other than in circumstances permitted by the contract, or if Rio Tinto Aluminium terminates performance of the contract pursuant to paragraph 7[b] [iv], the customer shall be liable for any damage of loss thereby suffered by Rio Tinto Aluminium . If the goods have been produced especially for the customer, or are in the process of being so produced, the customer shall pay to Rio Tinto Aluminium as liquidated damages the full contract price thereof and any costs incurred by Rio Tinto Aluminium less the current scrap value of the goods as determined by Rio Tinto Aluminium . [b] If any goods delivered by Rio Tinto Aluminium do not conform to the warranty set out in paragraph 8[a], the customer may return the goods to Rio Tinto Aluminium , if Rio Tinto Aluminium consents to it doing so, whereupon after receipt of the goods Rio Tinto Aluminium may elect either to replace them or to refund the purchase price. The alternative elected by Rio Tinto Aluminium shall be the customer's only remedy. [c] Any claim which the customer may have against Rio Tinto Aluminium shall be deemed to have been waived unless notice thereof is given to Rio Tinto Aluminium within 14 days after delivery of the goods and unless Rio Tinto Aluminium is given a reasonable opportunity to investigate the claim before any goods are returned to it. [d] Subject to paragraph 10, if Rio Tinto Aluminium fails to deliver the goods to the customer within the time provided by the contract, the customer shall not be entitled to terminate performance of the contract unless, within 7 days after it has delivered a written notice to Rio Tinto Aluminium requiring delivery of the goods, Rio Tinto Aluminium fails to deliver them. If Rio Tinto Aluminium fails to despatch any goods to the customer for which the customer has paid, Rio Tinto Aluminium only obligation shall be to refund to the customer the amount received in respect of the goods not despatched. Rio Tinto Aluminium shall not be liable for any damage or other loss incurred by the customer or any third party arising directly or indirectly from Rio Tinto Aluminium's failure to deliver the goods on time or at all. [e] Rio Tinto Aluminium shall not be liable for any consequential, special or contingent damages which may be claimed to have resulted from the use of the goods from Rio Tinto Aluminium's failure to perform any obligation under the contract. [f] Notwithstanding anything contained in the contract, Rio Tinto Aluminium shall not be liable for any failure to perform its obligations under the contract which arises from any cause not within its reasonable control including strikes, other industrial disputes, plant failures, failure of a usual source of supply, inability to obtain labour or transportation, fire and other accidents or Act of God.
12. PATENTS AND DESIGNS The customer shall accept full responsibility for all claims made against the customer or Rio Tinto Aluminium that the goods, their method of manufacture or their design infringe any patent or registered design. The customer shall indemnify Rio Tinto Aluminium against all damages, losses and expenses which Rio Tinto Aluminium may incur arising out of any such claim.
13. MISCELLANEOUS [a] The waiver by Rio Tinto Aluminium of any provision or breach by the customer of any provision of the contract shall not be construed as a waiver of any other provision or breach of any other provision, or subsequent breach of the same or any provision of the contract. [b] Errors in this contract or any invoice shall be corrected and requisite adjustments made between the parties. [c] Subject to paragraph 13[b] where a statement made on the face of this contract conflicts with anything set out in Rio Tinto Aluminium's price book, than, for the purposes of this acceptance and the contract, the statement made on this contract shall prevail to the extent of the conflict. [d] Notwithstanding the terms of the customer's order, these conditions of sale shall be deemed to constitute the terms of the contract between the customer and Rio Tinto Aluminium unless otherwise agreed. [e] Should any provisions of these conditions become unenforceable, or be held void either in whole or part for any reason, then that provision shall be deemed to be deleted without in any way affecting the validity or enforceability of any other provision.
14. JURISDICTION The contract shall be construed according to the laws of New Zealand. The parties accept the jurisdiction of the Courts of New Zealand.