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Unless otherwise agreed by OPR Limited the following terms and conditions ("terms") shall apply to every purchase of goods from OPR Limited by any customer (“customer”).
1. QUOTATIONS
Any quotations remain firm for acceptance within 30 days from the date of quotation unless withdrawn by OPR Limited, by notice to the customer, at an earlier date and before acceptance of the quote by the customer.
2. PRICES
2.1 Any losses arising as a result of fluctuations in the rate of exchange of foreign currencies paid or payable by OPR Limited in respect of the supply of the goods after the date that the customer's order is confirmed to OPR Limited, shall be to the account of the customer. OPR will endeavour to give the customer as much notice as possible of any such fluctuations in rate of exchange of foreign currencies paid or payable by OPR Limited.
2.2 The amount of the losses arising from fluctuations allowed to be passed on to the customer is capped at [15]% increase on the Price. If the amount is greater than this then the customer is able to cancel the order (or pay a reduced amount with mutual agreement).
2.3 Without limiting the foregoing, the customer shall be liable for all taxes and duties not specifically included in the price quoted, including goods and services tax.
2.4 Unless otherwise specified freight and insurance costs shall be paid by the customer.
3. CREDIT TERMS
3.1 Unless otherwise agreed by OPR Limited in writing, delivery will only be processed following OPR Limited's receipt of all amounts owing by the customer in respect of the relevant order, including (but not limited to) the purchase price for all relevant goods, shipping, freight, taxes, duties, any currency exchange losses incurred by OPR Limited and any relevant insurance amounts.
3.2 Any credit granted by OPR Limited shall be on the basis that the customer has completed OPR Limited's credit application form and this application has been approved by OPR Limited, and payment in full (without deduction, retention or withholding) shall be due and payable on the 20th day of the month following the month in which delivery is made (time being strictly of the essence).
3.3 Notwithstanding clause 3.2, if any of the following events shall occur:
(a) a liquidator, receiver or administrator is appointed over the customer;
(b) the customer becomes unable to pay its debts as they fall due;
(c) the customer fails to meet the solvency test set out in section 4 of the Companies Act 1993; or
(d) a compromise is entered into between the customer and its creditors,
the customer shall immediately notify OPR Limited, and all amounts owing by the customer to OPR Limited will immediately become due and payable.
4. DEFAULT INTEREST
Should the customer default on any payment due to OPR Limited then the customer shall pay to OPR Limited interest on such default payment(s) at the rate of 2% per annum above the interest rate charged to OPR Limited by its bankers on current account overdraft as at the date such payment was due, calculated from the date payment was due until the outstanding debt is paid in full and compounding monthly.
5. FORCE MAJEURE
OPR Limited shall not be responsible for any delay in the manufacture or delivery of any goods where such delay is caused (directly or indirectly) by any cause whatsoever beyond the reasonable control of OPR Limited. Any time for delivery of the goods to trade customers shall be approximate only and shall not be deemed to be of the essence of the contract. No such delay shall relieve the trade customer from its obligation to pay for any goods already delivered and the trade customer shall accept delivery of any of the goods ordered if such delivery is tendered by OPR Limited after the cause of the delay has ceased. During the period of delay OPR Limited may allocate goods between its trade customers in such manner as in its sole discretion it deems fair and reasonable.
6. RISK
Risk shall pass to the customer at the time of delivery.
7. RETENTION OF OWNERSHIP
7.1 While risk in the goods delivered by OPR Limited shall pass on delivery, legal and equitable title shall remain with OPR Limited until it has received full payment therefore.
7.2 Pending such payment, the customer shall hold the goods as bailee and shall identify the goods as belonging to OPR Limited and store the goods separately from its own goods. The customer may sell or deal with the goods in the ordinary course of business subject to any proceeds being paid into a separate account and appropriated first in paying all sums owing to OPR Limited for the goods.
7.3 These terms create a security interest in the goods under the Personal Property Securities Act 1999 ("PPSA") and the goods bought from OPR Limited remain the property of OPR Limited until paid for in full. The customer agrees to sign such documents and do such other things as may be required in order to enable OPR Limited to register and perfect that interest and obtain and maintain a first ranking priority position over the goods or their proceeds with first priority. To the maximum extent permitted by applicable law, the parties agree that:
(a) the customer waives any right to receive a verification statement in respect of the security interest created under these terms, and by placing an order does so in writing;
(b) if the goods subsequently become part of some other product or mass, then nothing in these terms can be construed as limiting the application of sections 82 to 86 of the PPSA;
(c) the customer waives and, with OPR Limited's agreement, contracts out of the customer's rights under the sections referred to in section 107(2) of the PPSA; and
(d) nothing in sections 114(1)(a), 133 and 134 of the PPSA applies to any agreement between the customer and OPR Limited under these terms.
7.4 Should the customer fail to make due payment for the goods, or should any event set out in clause 3.3 occur, then OPR Limited may enter onto the customer's premises to recover the goods and resell the same to recover all amounts owed to OPR Limited, with any balance being paid to the customer.
8. CONSUMER GUARANTEES ACT
8.1 OPR Limited and the customer each irrevocably acknowledge and agree, for the purposes of the Consumer Guarantees Act 1993 ("CGA"), that the goods are being supplied by OPR Limited, and acquired by the customer, in trade for business purposes, and that:
(a) each party is in the business of trade;
(b) each party agrees to contract out of the CGA and the provisions of the CGA are excluded in relation to the supply of goods by OPR Limited; and
(c) it is fair and reasonable that the parties are bound by these terms.
8.2 The customer shall not, in relation to the supply by the customer of the goods in trade, give or make any undertaking, assertion or representation in relation to the goods without the prior approval in writing of OPR Limited, and the customer shall indemnify OPR Limited against any liability or cost incurred by OPR Limited as a result of any breach by the customer of this provision.
8.3 The customer shall, in relation to any supply of the goods by the customer to a consumer in trade, contract out of the provisions of the CGA to the extent that the customer is entitled to do so under the CGA and shall indemnify OPR Limited against any liability or cost incurred by OPR Limited under the CGA as a result of any breach by the customer of this provision.
8.4 The customer acknowledges that it relies entirely on its own skill and judgment as to the fitness for purpose, application, design, suitability, use and installation of the goods.
9. LIABILITY
9.1. Notwithstanding any other provision of these terms and subject to clause 9.2 and 9.3, to the maximum extent permitted by law, the total liability of OPR Limited, and the customer, to each other for all claims under or in relation to, these terms or their subject matter, whether in contract, tort (including negligence), in equity, under statute, based on fundamental breach or breach of a fundamental term, or on any other basis will not in any event exceed the greater of the amount of $[100,000] or the total sale price of the defective goods supplied to the customer in the previous 12 months.
9.2. Neither party shall be liable to the other party for any special, exemplary, punitive, incidental, indirect or other consequential damages of any kind, lost profits, lost revenue or lost savings, whether based in contract, tort (including negligence) or otherwise, which arise out of or are in any way connected with:
(a) these terms;
(b) any use of the goods supplied by OPR Limited;
(c) any failure or delay (including the use of or inability to use any component of the goods); or
(d) the performance or non-performance by either party, even if such party had been advised of the possibility of such damages.
9.3. The limitations contained in clause 9.1, do not apply to:
(a) the customer's failure to pay amounts owed to the OPR Limited under these terms;
(b) a party’s liability for death or personal injury; or
(c) any third party intellectual property breaches.
9.4. OPR Limited will indemnify the customer against all reasonably foreseeable losses and liabilities arising out of claims asserted by any third party to the extent those losses and liabilities are caused by infringement of that third party’s intellectual property rights by the goods when used as permitted under these terms. OPR Limited will not be liable under this clause 9.4, unless;
(a) OPR Limited is given immediate and complete control of such claim;
(b) the customer does not prejudice OPR Limited's defense of such claim; and
(c) the customer gives OPR Limited all reasonable assistance with such claim.
9.5. OPR Limited will have the right to replace or change all or any part of the goods in order to avoid any infringement. The foregoing states the entire liability of OPR Limited to the customer in respect of the infringement of the intellectual property rights of any third party.
9.6. Any claim based on defective goods must be made to OPR Limited within one month of delivery of the goods to the customer (time being strictly of the essence). OPR Limited is to be given a reasonable opportunity to investigate the claim.
9.7. OPR Limited shall not be liable to the customer, or anyone claiming through the customer, for labour, material or any other costs incurred in removing defective goods and refitting any replacement.
10. CANCELLATION
Once the customer has placed an order for goods with OPR Limited it cannot be cancelled without the prior written consent of OPR Limited.
11. DELIVERY
11.1. For the purpose of these terms the term “delivery” shall mean the granting of possession of the goods by OPR Limited to the customer ex warehouse (as that term is defined in Incoterms 1980) unless the parties agree otherwise in writing.
11.2. Goods may be delivered to trade customers in instalments and in each such case each delivery shall be regarded as a separate contract and goods delivered shall be paid for accordingly.
12. SEVERABILITY
Any part of these conditions is severable and if any provision is held to be illegal or unenforceable for any reason, such illegality, or unenforceability shall affect only that portion of these conditions which is in conflict and the remainder of these conditions shall remain in full force and effect.
13. ENTIRE AGREEMENT AND WAIVER
These terms shall, to the extent permitted by law, prevail over all previous or other terms and conditions of sale (verbal or written) between the customer and OPR Limited, including over any terms and conditions of purchase or otherwise of the customer. No failure by either party to enforce any term shall amount to a waiver of that term. To be effective, a waiver of any term by OPR Limited must be in writing and signed by a senior representative of OPR Limited.
