METHVEN LTD ("the Company")

TRADE TERMS AND CONDITIONS OF SALE

Any Goods supplied by the Company to the Buyer are supplied on the terms set out below, together with the terms set out in any quotation given by the Company. Unless otherwise agreed in writing by the Company no other terms will apply to any supply of Goods to the Buyer by the Company.

1. Payment
   1. Subject to any contrary provision in the Contract, payment of the Price and any delivery charges in respect of the Goods shall be made by the end of the month following the month of the Company invoice date.
   2. The Buyer shall not be entitled to withhold payment or to make any deduction from, or set off any amount against, any moneys payable to the Company under the Contract.
   3. Where the Buyer defaults in payment of any moneys under the Contract, the Company may withhold further supplies of Goods.
   4. In the case of export sales, payment shall be made by confirmed irrevocable letter of credit unless otherwise agreed. Letters of credit shall, unless otherwise agreed, be established through a first class bank and be irrevocable, confirmed and without recourse available for the Company's draft at sight and otherwise in a form satisfactory to the Company.
2. Price
   1. The Price shall be increased by the amount of any increase in the cost of any items (including any change in currency exchange rates) affecting the cost of supply, production and/or delivery of the Goods due to circumstances beyond the control of the Company between the Date of the Contract and the date of delivery.
   2. If there are any changes in any regulations, bylaws, codes or standards with which the Company is obliged to comply after the Date of Contract, any additional costs in complying with those changes shall be met by the Buyer.
3. Taxes and Duties
   1. Unless expressly included in any quotation given by the Company, GST and other taxes and duties relating to the supply of Goods to the Buyer are not included in the Price and shall be payable by the Buyer in addition to the Price of the Goods at the rate(s) prevailing as at the date of supply of the Goods.
4. Interest for Late Payment
   1. Interest at a rate equal to 5% above the Company's bank's base overdraft lending rate from time to time calculated on a daily basis shall be payable on any moneys outstanding under the Contract from the date payment is due until the date payment is received by the Company.
5. Delivery and Shipment
   1. Delivery shall be made at the place indicated in the Contract or, if no place is indicated, at the Buyer's premises in such manner as indicated in the Contract, or if no such manner is indicated, in the manner elected by the Company at its sole discretion. If the Buyer fails or refuses to take delivery, or indicates to the Company that it will fail or refuse to take delivery, the Goods shall be deemed to have been delivered when the Company was willing to deliver them.
   2. Without prejudice to any other right or remedy, the Company may charge storage and transportation expenses in addition to the delivery charges payable under clause 1.1 if the Buyer fails or refuses to take or accept delivery or indicates to the Company that it will fail to do so.
   3. In the case of export sales, delivery on a sale FOB, CIF, or CFR shall, unless otherwise stated in the Contract, be complete when the Goods effectively pass the ship's rail at the port of shipment or arrive at the airport for dispatch or earlier leave the Company's custody for shipment to the Buyer. Trans-shipment shall be allowed.
   4. The Company reserves the right to deliver the Goods by instalments and each instalment shall be deemed to be a separate contract under the same provisions as the main Contract. Failure by the Company to deliver or defective delivery by the Company of one or more instalments shall not entitle the Buyer to repudiate the main Contract.
   5. Delivery of up to 10% less than the quantity of Goods ordered by the Buyer shall constitute performance of the Contract, with the amount of any under supply to be deducted from the Price. If the Buyer accepts any Goods in excess of the Goods ordered then it will pay for those excess Goods at the agreed per unit Price.
6. Delay
   1. The Company shall not be liable under any circumstances for any loss or damage (including any consequential loss) for late or non-delivery of any Goods.
   2. If any time for delivery of the Goods is stated in the Contract, the time shall be an approximate time and shall not be deemed to be of the essence of the Contract.
   3. If 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, the Company may require payment by the Buyer of such portion of the Price as represents the extent to which the Company has performed the Contract or carried out work required by the Contract up to the date such payment is required together with any expenses or additional costs incurred by the Company as a result of such delay. If the delay continues beyond a reasonable time, the Company may, without prejudice to its other rights and remedies, terminate the Contract.
7. Risk and Insurance
   1. Risk of any loss, damage or deterioration of or to the Goods shall be borne by the Buyer from the time the Goods are in possession of the Carrier (or the first of the Carriers).
   2. Until property in the Goods passes to the Buyer, the Buyer shall at its own cost keep the Goods insured and will produce to the Company upon demand such evidence as the Company may require to confirm the existence of such insurance.
8. Property
   1. Property in the Goods shall not pass (and the Buyer upon receipt of the Goods shall be a bailee only in respect of them) until the Buyer has paid all moneys owing by the Buyer to the Company. Until such time the Buyer shall store and identify the Goods in such a way that the Goods are clearly the property of the Company.
   2. Prior to property in the Goods passing to the Buyer, the Buyer shall be entitled to sell the Goods to a third party as agent for the Company provided that the Buyer shall be fully accountable to the Company for all proceeds derived from any such sale and shall deposit proceeds from such sales so as to clearly identify them as the property of the Company.
   3. The authority to sell the Goods under clause 8.2 shall immediately be revoked if the Buyer:
      1. Breaches any term of these term and conditions;
      2. Enters into any composition or arrangement with creditors;
      3. (Being a company) has a receiver appointed in respect of any of its assets, a resolution is passed or an order filed to wind it up, or if the Company is placed in statutory management or declared to be "at risk" pursuant to the Corporations (Investigation and Management) Act 1989; or
      4. (Being an individual) commits any act of bankruptcy or is declared bankrupt.
   4. Prior to property in the Goods passing to the Buyer:
      1. The Buyer shall not be entitled to intermingle such Goods with any other objects or otherwise deal with the Goods so that they may become a constituent part of any other object without the prior consent of the Company. Such consent, if granted, shall be deemed to be granted upon the terms that should the Buyer intermingle or deal with the Goods in a way that they become a constituent part of any other object the Buyer shall be deemed to do so as agent of the Company and property in all such other objects shall vest in the Company as principal.
      2. The Company appoints the Buyer its agent for the sale of any such new objects. The Buyer shall be fully accountable to the Company for all proceeds derived on sale of such Goods and shall deposit proceeds from such sales so as to clearly identify them as the property of the Company and shall hold such proceeds on trust for the Company.
   5. The Buyer shall indemnify the Company for all actions which arise as a result of intermingling of such Goods or otherwise howsoever arising from its position as agent of the Company.
   6. Prior to property in the Goods passing to the Buyer, the Buyer must not create or allow to exist any Security Interest in the Goods.
9. Samples
   1. Any sample exhibited to or inspected by the Buyer prior to placing an Order is solely for the convenience of the Buyer and the Contract shall not constitute a contract for sale by sample.
   2. All samples remain the property of the Company.
10. Defective Goods
    1. Subject to clauses 10.2 and 10.3 the Company shall replace any Goods delivered to the Buyer in a defective state (where the defect results from an act or omission by the Company) but shall have no other liability in respect of defective Goods.
    2. The Company shall not be liable to replace any defective Goods:
       1. Unless written notice of the defect is received by the Company as soon as reasonably possible following discovery of the defects.
       2. If the defect is the result of incorrect storage or handling by the Carrier or Buyer or any other person not under the direct control of the Company.
       3. If any attempt to repair the defective Goods is made by any person or persons not authorised by the Company to effect such repair.
       4. If the defective Goods have been modified without the approval of the Company.
    3. The Company shall not be obliged to replace any defective Goods while the Buyer is in default in relation to any payment or in the performance of any obligation under the Contract.
11. Liability
    1. The Company shall not be liable for any loss of profits or any consequential, indirect or special loss, damage or injury of any kind suffered by the Buyer arising directly or indirectly from any:
       1. Breach of any of the Company's obligations under, or cancellation of, the Contract.
       2. Negligence, misrepresentation or other act or omission on the part of the Company, its servants, agents or contractors.
    2. Notwithstanding any contrary provision, the liability of the Company, whether in contract or pursuant to any cancellation of the Contract or in tort or otherwise, in respect of all claims or loss, damage or injury, however arising, shall not in aggregate exceed the Price for the Goods to which the claim relates.
    3. The Buyer acknowledges that it is acquiring the Goods for the purposes of a business and accordingly the Consumer Guarantees Act will not apply to the supply of Goods to the Buyer by the Company.
12. Default
    1. If:
       1. The Buyer fails to pay for the Goods on the due date for payment; or
       2. The Buyer defaults in the due performance of its obligations to the Company, whether under the Contract or otherwise; or
       3. The Buyer commits any act of bankruptcy, enters into any composition or arrangement with creditors or (being a company commences to be wound up or has a receiver or manager or statutory manager appointed in respect of any or all of its assets; or
       4. The Company believes the Goods are "at risk" (as construed in accordance with section 109(2) of the PPSA),
       5. Then the Company may, without prejudice to any other right or remedy, suspend or terminate the Contract, and all other moneys payable by the Buyer to the Company shall immediately become due and payable.
    2. If any of the circumstances referred to in clause 12.1 shall arise, the Company may then:
       1. Enter upon the premises where any Goods for which the Company has not been paid are situated and take possession of and remove those Goods, without being responsible for any damage caused in doing so; and
       2. Resell those Goods and apply the proceeds towards the payment of all moneys owing to the Company by the Buyer, and all costs incurred by the Company as a result of such action shall be immediately payable by the Buyer upon written demand from the Company.
    3. Despite any other provisions of these terms and conditions of sale, there is no intention to contract out of the Credit (Repossession) Act 1997 where it may apply and any provision which has such an effect will be ineffective to that extent.
13. Patents and Copyright
    1. If any Goods are to be supplied to the Buyer's design, the Buyer warrants that the manufacture or supply of the Goods by the Company will not infringe any patent, copyright, registered design or other rights of any other person and the Buyer shall indemnify the Company against any liability incurred by the Company, including any costs and expenses, in the event of any claim being made that the manufacture or supply of such goods by the Company infringes any patent, copyright, registered design or other rights of any other person.
14. Dimensions and Specifications
    1. Dimensions and specifications contained or referred to in the Contract or in any catalogues or other publications maintained or issued by the Company are approximate only. Unless otherwise expressly agreed in writing, it is not a condition of the Contract that the Goods will correspond precisely with such dimensions or specifications, and customary tolerances, or in the absence of customary tolerances, reasonable tolerances shall be allowed.
15. Contract
    1. The provisions of the quotation (if any), or in the Company's confirmation of an Order (if any) together with these terms and conditions shall constitute the Contract. All other conditions, warranties, descriptions, representations, conditions as to fitness or suitability for any purpose, tolerances to any conditions, merchantability or otherwise (whether of like nature or not) and whether express or implied by law, trade custom or otherwise are expressly excluded.
    2. No notice or document given by the Company to the Buyer under these terms and conditions shall be enforceable against the Company unless signed by either a director, general manager or duly authorised representative of the Company.
    3. No Contract is formed until the Company accepts any order placed by the Buyer.
16. Personal Property Securities Act 1999
    1. The Buyer acknowledges and agrees that:
       1. It grants a Security Interest in all present and after-acquired Goods as security for the Buyer's obligations to the Company;
       2. It will do all things and execute and arrange for execution of all such documents as in the Company's opinion are necessary or desirable to ensure that the Company has a perfected first ranking Security Interest in the Goods;
       3. It will have none of the rights under sections 114(1)(a), 116, 120(2), 121, 125, 129, 131, 133 and 134 of the PPSA;
       4. Where the Company has rights in addition to those in Part 9 of the PPSA, those rights will continue to apply and, in particular will not be limited by section 109 of the PPSA;
       5. It will reimburse the Company for any cost the Company incurs in enforcing the Security Interest created by these terms;
       6. It will immediately notify the Company of any change in the Buyer's name.
17. General
    1. No waiver of any breach or failure to enforce any provision of these terms and conditions by the Company shall in any way affect, limit or waive the Company's right to subsequently enforce these terms and conditions.
    2. The Buyer may not assign any of its rights or obligations under the Contract without the prior written consent of the Company, which consent may be withheld at the Company's sole discretion.
    3. Should any of these terms and conditions become void or inoperative by operation of law, the remaining terms and conditions shall remain unaffected and valid.
    4. The Contract shall be governed by New Zealand law and the New Zealand Courts shall have exclusive jurisdiction in respect of all claims and actions arising out of the Contract provided that the Company shall be entitled to commence action arising out of or in respect of the Contract in any other jurisdiction.
    5. If, due to any circumstances beyond its reasonable control, the Company is unable, either wholly or partly, to carry out any obligations under these terms and conditions, that obligation shall be suspended so far as it is affected by and during the continuance of that circumstance.
    6. Where the Buyer is an individual, the Buyer irrevocably authorises the Company:
       1. To obtain from any third party such information in respect of the Buyer as the Company may require in connection with its lawful commercial purposes (including but not limited to obtaining credit checks on the Buyer);
       2. To provide any such information to any third party in connection with its lawful commercial purposes.
    7. Where the Buyer is a company or a partnership the Buyer confirms that each of its directors or partners has irrevocably authorised the Company:
       1. To obtain from any third party such information in respect of the director or partner as the Company may require in connection with its lawful commercial purposes (including but not limited to obtaining credit checks on those directors or partners);
       2. To provide any such information to any third party in connection with its lawful commercial purposes.
    8. The Buyer acknowledges that it is aware of the rights of access to and correction of personal information under the Privacy Act 1993.
    9. All notices to be given pursuant to these terms and conditions of sale will be given in accordance with section 185 to 189 of the PPSA.
18. Interpretation
    1. In these terms and conditions of sale, unless the context requires otherwise:
       1. "Buyer" means the person buying the Goods from the Company.
       2. "Carrier" means the carrier responsible for delivery of the Goods to the Buyer.
       3. "Company" means Methven Limited.
       4. "Contract" means the contract between the Company and the Buyer for the purchase of the Goods under clause 15.1.
       5. "Date of Contract" means:
          1. Where the Contract arises from an Order, the date of acceptance of that Order by the Company; or
          2. Where the Contract arises from a quotation given by the Company, the date upon which written acceptance of the quotation is received by the Company or, where no written acceptance of the quotation is received by the Company, the date upon which the Company in its discretion determines to treat as a valid acceptance.
       6. "Goods" means all kitchen, bathroom, laundry fixtures and fittings and other water control devices being purchased by the Buyer from the Company and includes without limitation taps, faucets, showers, valves, all parts and components and any associated product supplied by the Company to the Buyer.
       7. "GST" means goods and services tax in terms of the Goods and Services Tax Act 1985.
       8. "Order" means an order placed by the Buyer for the purchase of Goods.
       9. "PPSA" means the Personal Property Securities Act 1999;
       10. “Price" means the price of the Goods as agreed between the Company and the Buyer, or if no specific agreement is reached then as specified in the Company’s price list.
       11. "Security Interest" has the meaning given to that term in the PPSA.
       12. A reference to a "person" includes a corporation, association, firm, company, individual or government or local body.
       13. The terms “FOB”, “CIF”, and “CFR” shall have the meanings given to them in the 2011 edition of Incoterms published by the International Chamber of Commerce.