Conditions of Sale

1. For the purposes of interpretation:
 
“Customer” means the person buying the Goods and its successors and any person acting on behalf of and with the apparent authority of the Customer;
 
“Conditions” means these conditions of sale;
 
“Contract” means the contract for the sale of the Goods and/or the provision of Services from Rapt to the Customer;
 
“Rapt” means Designation Limited trading as Rapt, and its successors and assigns;
 
“Goods” means the Goods listed in the Contract (and where the context so permits shall include any supply of Services as hereinafter defined);
 
“Order” or “Orders” means an order or orders as detailed in clause 3 of these Conditions;
 
“Services” shall mean all Services supplied by Rapt to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods).
 
2.      The Contract includes these Conditions which shall not be deemed or construed to be modified, rescinded or waived in whole or in part except by written amendment by Rapt and the Customer. All other terms and conditions are expressly excluded.
 
3.      An Order shall be deemed to be an offer by the Customer to purchase the Goods and/or Services from Rapt pursuant to these Conditions. All Orders submitted by the Customer to Rapt shall be deemed to be accepted by Rapt unless otherwise advised.  An Order must be in writing and include:
 
(a)        a detailed description of the Goods and/or Services ;
 
(b)        the amount or quantity;
 
(c)        the unit price as agreed by Rapt;
 
(d)        the location for delivery of the Goods and/or Services ; and
 
(e)        a proposed delivery date.
 
4.      An Order which has been accepted by Rapt may not be cancelled by the Customer except with Rapt’s agreement in writing on terms that the Customer shall indemnify Rapt in full against all losses (including loss of profit), costs, damages, charges and expenses incurred by Rapt as a result of cancellation.
 
5.      Acceptance of delivery of the Goods and/or Services shall be deemed conclusive evidence of the Customer's acceptance of these Conditions.
 
6.      Any typographical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document issued by Rapt shall be subject to correction without any liability on the part of Rapt.
 
7.      The price for the Goods and/or Services shall be Rapt's quoted price. All prices exclude freight, duty, insurance and any applicable tax unless otherwise agreed.
 
8.      Where a quotation is given by Rapt for Goods and/or Services:
 
(a)        Unless otherwise agreed the quotation shall be valid for 14 calendar days from the date of issue; and
 
(b)        The quotation shall be exclusive of Goods and Services Tax unless specifically stated to the contrary;
 
(c)        Rapt reserves the right to alter the quotation because of circumstances beyond its control.
 
9.      Where Goods and Services are required in addition to those specified in a quotation, the Customer agrees to pay for the cost of such additional Goods and Services.
 
10.    Rapt reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of the Goods and/or Services to reflect any increase in the cost to Rapt which is due to any factor beyond the control of Rapt.
 
11.    The amount due for the purchase by the Customer of the Goods and/or Services (together with any freight, duty, insurance or other taxes) shall be paid (without deduction or set off) on or before the 7th day after the date of Rapt’s invoice. Time for payment shall be of the essence.
 
12.    Payment for the Goods and/or Services shall be deemed to be duly made by the Customer only upon Rapt's receipt of cash or cleared funds amounting to the price of the Goods and/or Services. Where payment for the price of the Goods and/or Services is made by way of a Letter of Credit or Bill of Exchange, any costs incurred thereby shall be borne by the Customer.
 
13.    If the Customer fails to make full payment on the due date or is otherwise in breach of its obligations under the Contract, then without prejudice to any other right or remedy available to Rapt, Rapt shall be entitled to cancel the Contract or suspend any further deliveries to the Customer, appropriate any payment made by the Customer to such of the Goods and/or Services as Rapt may think fit and charge the Customer daily interest (both before and after any judgement) on the amount unpaid at the rate of 2.5% per month until payment in full is made.  The Customer shall also be liable for all of Rapt’s costs and expenses (including legal costs on an indemnity basis) incurred as a result of a default by the Customer under these Conditions and/or any Contract.
 
14.    The quantity, quality and description of and any specification for the Goods and/or Services shall be those set out in Rapt's price list for the Goods and/or Services as published by Rapt from time to time or noted in the Order (if accepted by Rapt).
 
15.    Rapt may from time to time make changes in the quantity, quality and description of and any specification for the Goods and/or Services which are required to comply with any applicable safety or statutory requirements or which do not materially affect the quality or fitness for use of the Goods and/or Services.
 
16.    No representations or warranties concerning the Goods or Services are made by Rapt unless they are confirmed in writing by Rapt.
 
17.    Except where the Customer is a consumer (as the term “consumer” is defined in the Consumer Guarantees Act 1993 (“the Act”) the guarantees contained in the Act that the Goods and/or Services supplied are (a) of acceptable quality (sections 6 and 7); (b) reasonably fit for any particular purpose (section 8); (c) comply with description (section 9); (d) comply with sample (section 10); (e) reasonable as to price (section 11); and (f) that facilities for the repair of the Goods are available (section 12), do not apply.
 
18.    Rapt shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of Rapt's obligations in relation to the Goods and/or Services, if the delay or failure was due to any cause beyond Rapt's reasonable control.
 
19.    Delivery of the Goods shall be made by the Customer delivering the Goods into the control of the Customer’s carrier or agent or to the address specified by the Customer where Rapt is arranging delivery.
 
20.    Any dates quoted for delivery of the Goods and/or Services are approximate only. Rapt shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence of the Contract.
 
21.    Where the Goods and/or Services are to be delivered in instalments, each delivery shall constitute a separate contract.  Failure by Rapt to deliver any one or more of the instalments in accordance with these Conditions shall not entitle the Customer to treat the Contract as a whole as repudiated.
 
22.    If the Customer fails to take delivery of the Goods or fails to give Rapt adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Customer's reasonable control or by reason of Rapt's fault) then, without prejudice to any other right or remedy available to Rapt, Rapt shall be entitled to (a) store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or (b) take all steps it deems necessary to prevent the deterioration of the Goods and charge the Customer for the reasonable costs incurred thereby; or (c) without any reference to the Customer (i) where the Customer fails to make full payment of the price for the Goods on the due date or is otherwise in breach of its obligations under the Contract, treat the Contract as repudiated by the Customer and to sell the Goods at the best price readily obtainable or otherwise dispose of the Goods; or (ii) if the Customer has made full payment of the price for the Goods on the due date but is otherwise in breach of its obligations under the Contract, sell the Goods at the best price readily obtainable or otherwise dispose of the Goods and claim any loss on resale from the Customer. Notwithstanding the Goods being sold or disposed of at a higher price, Rapt shall only be obliged to account to the Customer for the price of the Goods under the Contract after deducting all reasonable storage and selling expenses.
 
23.    The Customer shall inspect the Goods on delivery and shall, within seven days of delivery, notify Rapt of any alleged defect or failure to comply with description or shortage in quantity.  The Customer shall then afford Rapt an opportunity to inspect the Goods within a reasonable time following delivery and before any use is made of them.  Any error by the Customer in the terms of its order under clause 3 of these Conditions shall not be a defect or a failure by Rapt.  Rapt may at its sole and absolute discretion on each occasion accept back Goods returned to it by a Customer because of a Customer error subject to the Customer being liable for all freight charges together with a handling and restocking charge of not less than 10% plus GST of Rapt’s price for such Goods.  Rapt shall not grant any credit for, or replace Goods that are returned to it in a damaged state.  If the Customer shall fail to comply with these provisions, the Goods shall be conclusively presumed to be in accordance with the Contract and free from any defect or damage or shortage and the Customer shall be deemed to have accepted the Goods.
 
24.    If the Goods are not in accordance with the Contract for any reason and the Customer has duly given Rapt notice thereof pursuant to clause 23 of these Conditions, the Customer's sole remedy shall be limited to Rapt making good any alleged defect, shortage in quantity or failure to comply with description by replacing or effecting rectification of such Goods at Rapt's discretion or, if Rapt shall elect, by refunding a proportionate part of the price for the Goods under the Contract. Rapt shall not be liable for any damage caused either to the Goods or as a result of the malfunction of the Goods if the Goods are:
 
(a)  fitted by unqualified tradesmen;
 
(b)  fitted in an untradesmanlike manner;
 
(c)   in any way adapted for a use for which they are not specifically intended; or
 
(d)  added to or repaired using components not recommended or approved by Rapt or the manufacturer of such components.
 
25.    Where the Customer rejects any Goods, the Customer shall have no further rights whatever in respect of the supply to the Customer of such Goods by Rapt.
 
26.    Risk of damage to or loss of the Goods shall pass to the Customer (in the case of Goods to be delivered to the Customer’s agent or carrier) at the time when Rapt notifies the Customer that the Goods are available for collection, or (in the case of Goods to be delivered by Rapt) at the time of delivery.  The Customer agrees that Rapt shall not be liable for any loss or damage to property, costs or expenses incurred as a result of a Customer placing an Order or being supplied Goods by Rapt.
 
27.    Notwithstanding delivery and the passing of risk in the Goods, or any provisions to the contrary, the property in the Goods shall not pass to the Customer until Rapt has received payment in full for the price of the Goods.
 
28.    Until such time as the property in the Goods passes to the Customer, the Customer shall hold the Goods as Rapt's fiduciary agent and bailee, and shall keep the Goods separate from those of the Customer and third parties and properly stored, protected, insured and identified as Rapt's property.
 
29.    Where Rapt has reasonable cause to believe that the Customer has not strictly complied with these Conditions and, in particular, has not effected payment in accordance with clause 11 of these Conditions, or the Customer has or will commit an act of bankruptcy or (being a company) has a receiver, liquidator or statutory manager appointed then, notwithstanding section 109 of the Personal Property Securities Act 1999 (the "PPSA"), and in addition to the rights contained in that section, Rapt may recover any or all of the Goods or the mixed goods and re-sell the Goods or the mixed goods and for such purpose may at any time of the day or night enter by force if necessary upon any premises where such Goods or mixed goods are reasonably thought to be stored (and the Customer grants to Rapt an irrevocable right and authority to so recover, re-enter and re-sell).
 
30.    In exercising its rights pursuant to clause 29 of these Conditions, Rapt shall be entitled to deduct from any sale of Goods or mixed goods recovered from the Customer all the liabilities and expenses (including legal expenses) incurred by Rapt in enforcing or attempting to enforce its rights.
 
31.    In relation to the PPSA:
 
a)          The Customer grants to Rapt a security interest in all present and after acquired Goods and their proceeds.
 
b)          On the request of Rapt the Customer shall promptly execute any documents and do anything else required by Rapt to ensure that the security interest created under these Conditions constitute a first ranking perfected security interest over the Goods and their proceeds including providing any information Rapt reasonably requires to complete a financing statement or a financing change statement.  The Customer waives any right to receive a copy of a verification statement under the PPSA.
 
c)          The Customer will pay to Rapt all costs, expenses and other charges incurred, expended or payable by Rapt in relation to the filing of a financing statement or a financing change statement in connection with these terms and conditions.
 
d)      Rapt and the Customer also agree that nothing in sections 114(1)(a), 117(1)(c), 133 and 134 of the PPSA shall apply to these Conditions.
 
e)      Rapt and the Customer also agree that the rights of the Customer as debtor in sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA shall not apply to these Conditions.
 
f)       The Customer acknowledges that it has received a copy of these Conditions and in particular that the terms contained in these Conditions constitute a security agreement for the purposes of the PPSA.
 
32.    Rapt shall be entitled to recover the price for the Goods notwithstanding that property in any of the Goods has not passed from Rapt.
 
33.    If the Customer shall be declared bankrupt or commit an act of bankruptcy or enter into a scheme or arrangement or make any assignment for the benefit of creditors or being a Company has a receiver, liquidator or statutory manager appointed or an application for its winding up filed in any court or enters into any scheme or arrangement or assignment or composition for the benefit of creditors, or ceases or threatens to cease to carry on business, then without prejudice to any other right or remedy available to Rapt, Rapt shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer and the price for any Goods and/or Services already delivered shall become payable forthwith notwithstanding any agreement to the contrary.
 
34.    The Customer shall not withhold payment of any amount due to Rapt by reason of any right or alleged right of set-off or counterclaim whatsoever.
 
35.    No waiver by Rapt of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the Contract.
 
36.    If any of the terms of these Conditions or the Contract are held by a Court in New Zealand to be ineffective by virtue of non-registration, illegality or otherwise, then such term, or part of it, shall be severed from all other terms.  Unenforceability of a provision of these Conditions does not affect the enforceability of any other provision of these Conditions.
 
37.    The Customer shall not be entitled to assign any of its rights under any Contract without the prior written consent of Rapt. 
 
38.    Rapt is independent of the Customer and nothing in these Conditions or any Contract will constitute any other type of relationship between the Customer and Rapt other than as vendor and purchaser.
 
39.    The Contract and these Conditions shall be governed by and interpreted in accordance with the laws of New Zealand and the Customer and Rapt submit to the non-exclusive jurisdiction of the Courts of New Zealand.
 
40.    The Customer authorises Rapt to collect and hold personal information regarding the Customer from any source Rapt considers appropriate to be used for the purpose of determining credit worthiness, for communication of product information by Rapt, for debt collection purposes, or any other related purpose.  The Customer authorises Rapt to disclose personal information for the Customer held by Rapt for the above purposes to any third party. Where the Customer is a natural person, the authorities under this clause shall be authority or consent for the purposes of the Privacy Act 1993.
 
41.    Rapt reserves the right to amend and vary these Conditions from time to time.  Notice of such variation shall be deemed to be given to a Customer by Rapt listing a notice of such variation on its website at www.rapt.co.nz together with the date on which any amendment or variation becomes effective.
 
42.    Where the Customer is a company or trust, the director(s) or trustee(s) signing the Contract, in consideration for Rapt agreeing to supply Goods and Services and granting credit to the Customer at their request, also jointly and severally personally undertake as principal debtors to Rapt the payment of any and all monies now or hereafter owed by the Customer to Rapt and indemnify Rapt against non-payment by the Customer.  Any personal liability of a signatory hereto shall not exclude the Customer in any way whatsoever from the liabilities and obligations contained in the Contract. The signatories and Customer shall be jointly and severally liable under these Conditions and the Contract and for payment for all sums due hereunder.
 
43.    Rapt may cancel these Conditions or cancel delivery of Goods and Services at any time before the Goods and/or Services are delivered by giving written notice to the Customer.  On giving such notice Rapt shall promptly repay to the Customer any sums paid in respect of the Price for those Goods and/or Services. Rapt shall not be liable for any loss or damage whatever arising from such cancellation.
 
44.    Failure by Rapt to enforce any of the terms and conditions contained in the Contract shall not be deemed to be a waiver of any of Rapt’s rights.
 
45.    Where there is any conflict between these Conditions and any Order, these Conditions shall prevail.
 
46.    Unless Rapt elects otherwise, any dispute between Rapt and the Customer is to be dealt with in accordance with the Arbitration Act 1996.