1.1 “Contract” means the terms and conditions contained herein, together with any Quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.2 “SPR” means Supreme Plastic Roofing Ltd, its successors and assigns or any person acting on behalf of and with the authority of Supreme Plastic Roofing Ltd.
1.3 “Buyer” means the person/s, entities or any person acting on behalf of and with the authority of the Buyer requesting SPR to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
- if there is more than one Buyer, is a reference to each Buyer jointly and severally; and
- if the Buyer is a partnership, it shall bind each partner jointly and severally; and
- if the Buyer is a part of a Trust, shall be bound in their capacity as a trustee; and
- includes the Buyer’s executors, administrators, successors and permitted assigns.
1.4 “Goods” means all Goods or Services supplied by SPR to the Buyer at the Buyer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.5 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.6 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Buyer does not wish to allow Cookies to operate in the background when ordering from the website, then the Buyer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Goods via the website.
1.7 “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Goods as agreed between SPR and the Buyer in accordance with clause 6 below.
2.1 The Buyer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Buyer places an order (including but not limited to via SPR’s website, telephone or email) for or accepts Delivery of the Goods.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Buyer acknowledges that the supply of Goods on credit shall not take effect until the Buyer has completed a credit application with SPR and it has been approved with a credit limit established for the account.
2.5 In the event that the supply of Goods request exceeds the Buyers credit limit and/or the account exceeds the payment terms, SPR reserves the right to refuse Delivery.
2.6 The Buyer acknowledges and accepts that the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, SPR reserves the right to vary the Price with alternative Goods as per clause 6.2.
2.7 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Errors and Omissions
3.1 The Buyer acknowledges and accepts that SPR shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
- resulting from an inadvertent mistake made by SPR in the formation and/or administration of this Contract; and/or
- contained in/omitted from any literature (hard copy and/or electronic) supplied by SPR in respect of the Services.
3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of SPR; the Buyer shall not be entitled to treat this Contract as repudiated nor render it invalid.
4. Change in Control
4.1 The Buyer shall give SPR not less than fourteen (14) days prior written notice of any proposed change of ownership of the Buyer and/or any other change in the Buyer’s details (including but not limited to, changes in the Buyer’s name, address and contact phone or fax number/s, change of trustees or business practice). The Buyer shall be liable for any loss incurred by SPR as a result of the Buyer’s failure to comply with this clause.
5. On-Line Ordering
5.1 The Buyer acknowledges and agrees that:
- SPR does not guarantee the website’s performance;
- display on the website does not guarantee the availability of any particular Goods; therefore, all orders placed through the website shall be subject to confirmation of acceptance by the SPR;
- on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades;
- there are inherent hazards in electronic distribution, and as such SPR cannot warrant against delays or errors in transmitting data between the Buyer and SPR including orders, and you agree that to the maximum extent permitted by law, SPR will not be liable for any losses which the Buyer suffers as a result of online-ordering not being available or for delays or errors in transmitting orders;
- when making a transaction through the website, the Buyer’s information will pass through a secure server using SSL (secure sockets layer) encryption technology or any other similar technology as disclosed by SPR and/or displayed on the website. The encryption process ensures that the Buyer’s information cannot be read by or altered by outside influences;
- if the Buyer is not the cardholder for any credit card being used to pay for the Goods, SPR shall be entitled to reasonably assume that the Buyer has received permission from the cardholder for use of the credit card for the transaction.
5.2 SPR reserves the right to terminate the Buyer’s order if it learns that you have provided false or misleading information, interfered with other users or the administration of SPR’s business, or violated these terms and conditions.
6. Price and Payment
6.1 At SPR’s sole discretion the Price shall be either:
- as indicated on any invoice provided by SPR to the Buyer; or
- the Price as at the date of Delivery of the Goods according to SPR’s current price list; or
- SPR’s quoted price (subject to clause 6.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
6.2 SPR reserves the right to change the Price:
- if a variation to the Goods which are to supplied is requested; or
- if during the course of the Services, the Goods cease to be available from SPR’s third party suppliers, then SPR reserves the right to provide alternative Goods, subject to prior confirmation and agreement of both parties; or
- in the event of increases to SPR in the cost of labour or materials (including but not limited to overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) which are beyond SPR’s control.
6.3 Variations will be charged for on the basis of SPR’s quotation, and will be detailed in writing, and shown as variations on SPR’s invoice. The Buyer shall be required to respond to any variation submitted by SPR within ten (10) working days. Failure to do so will entitle SPR to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
6.4 At SPR’s sole discretion a non-refundable deposit may be required.
6.5 Time for payment for the Goods being of the essence, the Price will be payable by the Buyer on the date/s determined by SPR, which may be:
- before Delivery of the Goods;
- for certain approved Buyers, due twenty (20) days following the end of the month in which a statement is posted to the Buyer’s address or address for notices;
- failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Buyer by SPR.
6.6 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge per transaction may apply), or by any other method as agreed to between the Buyer and SPR.
6.7 SPR may in its discretion allocate any payment received from the Buyer towards any invoice that SPR determines and may do so at the time of receipt or at any time afterwards. On any default by the Buyer SPR may re-allocate any payments previously received and allocated. In the absence of any payment allocation by SPR, payment will be deemed to be allocated in such manner as preserves the maximum value of SPR’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
6.8 The Buyer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Buyer by SPR nor to withhold payment of any invoice because part of that invoice is in dispute.
6.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Buyer must pay to SPR an amount equal to any GST SPR must pay for any supply by SPR under this or any other agreement for the sale of the Goods. The Buyer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Buyer pays the Price. In addition, the Buyer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
7. Delivery of Goods
7.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
- the Buyer or the Buyer’s nominated carrier takes possession of the Goods at SPR’s address; or
- SPR (or SPR’s nominated carrier) delivers the Goods to the Buyer’s nominated address even if the Buyer is not present at the address.
7.2 At SPR’s sole discretion the cost of Delivery is either included in the Price or is in addition to the Price.
7.3 Any time specified by SPR for Delivery of the Goods is an estimate only. The Buyer must take Delivery by receipt or collection of the Goods whenever they are tendered for Delivery. SPR will not be liable for any loss or damage incurred by the Buyer as a result of Delivery being late. In the event that the Buyer is unable to take Delivery of the Goods as arranged then SPR shall be entitled to charge a reasonable fee for redelivery and/or storage.
8.1 Risk of damage to or loss of the Goods passes to the Buyer on Delivery and the Buyer must insure the Goods on or before Delivery.
8.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Buyer, SPR is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by SPR is sufficient evidence of SPR’s rights to receive the insurance proceeds without the need for any person dealing with SPR to make further enquiries.
8.3 If the Buyer requests SPR to leave Goods outside SPR’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Buyer’s sole risk.
9.1 SPR and the Buyer agree that ownership of the Goods shall not pass until:
- the Buyer has paid SPR all amounts owing to SPR; and
- the Buyer has met all of its other obligations to SPR.
9.2 Receipt by SPR of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
9.3 It is further agreed that until ownership of the Goods passes to the Buyer in accordance with clause 9.1:
- the Buyer is only a bailee of the Goods and must return the Goods to SPR on request;
- the Buyer holds the benefit of the Buyer’s insurance of the Goods on trust for SPR and must pay to SPR the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
- the Buyer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Buyer sells, disposes or parts with possession of the Goods then the Buyer must hold the proceeds of any such act on trust for SPR and must pay or deliver the proceeds to SPR on demand;
- the Buyer should not convert or process the Goods or intermix them with other goods but if the Buyer does so then the Buyer holds the resulting product on trust for the benefit of SPR and must sell, dispose of or return the resulting product to SPR as it so directs;
- the Buyer irrevocably authorises SPR to enter any premises where SPR believes the Goods are kept and recover possession of the Goods;
- SPR may recover possession of any Goods in transit whether or not Delivery has occurred;
- the Buyer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of SPR;
- SPR may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Buyer.
10. Personal Property Securities Act 1999 (“PPSA”)
10.1 Upon assenting to these terms and conditions in writing the Buyer acknowledges and agrees that:
- these terms and conditions constitute a security agreement for the purposes of the PPSA; and
- a security interest is taken in all Goods and/or collateral (account) – being a monetary obligation of the Buyer to SPR for Services – that have previously been supplied and that will be supplied in the future by SPR to the Buyer.
10.2 The Buyer undertakes to:
- sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which SPR may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
- indemnify, and upon demand reimburse, SPR for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
- not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of SPR; and
- immediately advise SPR of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
10.3 SPR and the Buyer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
10.4 The Buyer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
10.5 Unless otherwise agreed to in writing by SPR, the Buyer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
10.6 The Buyer shall unconditionally ratify any actions taken by SPR under clauses 10.1 to 10.5.
10.7 Subject to any express provisions to the contrary (including those contained in this clause 10), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
11. Security and Charge
11.1 In consideration of SPR agreeing to supply the Goods, the Buyer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Buyer either now or in the future, to secure the performance by the Buyer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
11.2 The Buyer indemnifies SPR from and against all SPR’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising SPR’s rights under this clause.
11.3 The Buyer irrevocably appoints SPR and each director of SPR as the Buyer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Buyer’s behalf.
12.1 The Buyer shall inspect the Goods on Delivery and shall immediately (time being of the essence) notify SPR of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Buyer shall afford SPR an opportunity to inspect the Goods within a reasonable time following Delivery if the Buyer believes the Goods are defective in any way. If the Buyer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which SPR has agreed in writing that the Buyer is entitled to reject, SPR’s liability is limited to either (at SPR’s discretion) replacing the Goods or repairing the Goods.
12.2 Goods will not be accepted for return other than in accordance with 12.1 above, and provided that:
- SPR has agreed in writing to accept the return of the Goods; and
- the Goods are returned at the Buyer’s cost within seven (7) days of the Delivery date; and
- SPR will not be liable for Goods which have not been stored or used in a proper manner; and
- the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
12.3 SPR may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of fifteen percent (20%) of the value of the returned Goods plus any freight.
13.1 For Goods not manufactured by SPR, the warranty shall be the current warranty provided by the manufacturer of the Goods. SPR shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
14. Consumer Guarantees Act 1993
14.1 If the Buyer is acquiring Goods for the purposes of a trade or business, the Buyer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by SPR to the Buyer.
15. Intellectual Property
15.1 Where SPR has designed, drawn or developed Goods for the Buyer, then the copyright in any designs and drawings and documents shall remain the property of SPR. Under no circumstances may such designs, drawings and documents be used without the express written approval of SPR.
15.2 The Buyer warrants that all designs, specifications or instructions given to SPR will not cause SPR to infringe any patent, registered design or trademark in the execution of the Buyer’s order and the Buyer agrees to indemnify SPR against any action taken by a third party against SPR in respect of any such infringement.
15.3 The Buyer agrees that SPR may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which SPR has created for the Buyer.
16. Default and Consequences of Default
16.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at SPR’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
16.2 If the Buyer owes SPR any money the Buyer shall indemnify SPR from and against all costs and disbursements incurred by SPR in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, SPR’s collection agency costs, and bank dishonour fees).
16.3 Further to any other rights or remedies SPR may have under this Contract, if a Buyer has made payment to SPR, and the transaction is subsequently reversed, the Buyer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by SPR under this clause 16 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Buyer’s obligations under this Contract.
16.4 Without prejudice to SPR’s other remedies at law SPR shall be entitled to cancel all or any part of any order of the Buyer which remains unfulfilled and all amounts owing to SPR shall, whether or not due for payment, become immediately payable if:
- any money payable to SPR becomes overdue, or in SPR’s opinion the Buyer will be unable to make a payment when it falls due;
- the Buyer has exceeded any applicable credit limit provided by SPR;
- the Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
- a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer.
17.1 Without prejudice to any other remedies SPR may have, if at any time the Buyer is in breach of any obligation (including those relating to payment) under these terms and conditions SPR may suspend or terminate the supply of Goods to the Buyer. SPR will not be liable to the Buyer for any loss or damage the Buyer suffers because SPR has exercised its rights under this clause.
17.2 SPR may cancel any contract to which these terms and conditions apply or cancel Delivery of Goods at any time before the Goods are delivered by giving written notice to the Buyer. On giving such notice SPR shall repay to the Buyer any money paid by the Buyer for the Goods. SPR shall not be liable for any loss or damage whatsoever arising from such cancellation.
17.3 In the event that the Buyer cancels Delivery of Goods the Buyer shall be liable for any and all loss incurred (whether direct or indirect) by SPR as a direct result of the cancellation (including, but not limited to, any loss of profits).
17.4 Cancellation of orders for Goods made to the Buyer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
18.1 All emails, documents, images or other recorded information held or used by SPR is Personal Information as defined and referred to in clause 18.3 and therefore considered confidential. SPR acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1993 (“the Act”) including Part II of the OECD Guidelines and as set out in Schedule 5A of the Act and any statutory requirements where relevant in a European Economic Area “EEA” then the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). SPR acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Buyer’s Personal Information, held by SPR that may result in serious harm to the Buyer, SPR will notify the Buyer in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Buyer by written consent, unless subject to an operation of law.
18.2 Notwithstanding clause 18.1, privacy limitations will extend to SPR in respect of Cookies where transactions for purchases/orders transpire directly from SPR’s website. SPR agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Buyer’s:
- IP address, browser, email client type and other similar details;
- tracking website usage and traffic; and
- reports are available to SPR when SPR sends an email to the Buyer, so SPR may collect and review that information (“collectively Personal Information”).
In order to enable / disable the collection of Personal Information by way of Cookies, the Buyer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via SPR’s website.
18.3 The Buyer authorises SPR or SPR’s agent to:
- access, collect, retain and use any information about the Buyer;
- (including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Buyer’s creditworthiness; or
- for the purpose of marketing products and services to the Buyer.
- disclose information about the Buyer, whether collected by SPR from the Buyer directly or obtained by SPR from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Buyer.
18.4 Where the Buyer is an individual the authorities under clause 18.3 are authorities or consents for the purposes of the Privacy Act 1993.
18.5 The Buyer shall have the right to request SPR for a copy of the Personal Information about the Buyer retained by SPR and the right to request SPR to correct any incorrect Personal Information about the Buyer held by SPR.
19. Service of Notices
19.1 Any written notice given under this Contract shall be deemed to have been given and received:
- by handing the notice to the other party, in person;
- by leaving it at the address of the other party as stated in this Contract;
- by sending it by registered post to the address of the other party as stated in this Contract;
- if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
- if sent by email to the other party’s last known email address.
19.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
20.1 If the Buyer at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not SPR may have notice of the Trust, the Buyer covenants with SPR as follows:
- the Contract extends to all rights of indemnity which the Buyer now or subsequently may have against the Trust and the trust fund;
- the Buyer has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Buyer against the Trust or the trust fund. The Buyer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.
- the Buyer will not without consent in writing of SPR (SPR will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
- the removal, replacement or retirement of the Buyer as trustee of the Trust;
- any alteration to or variation of the terms of the Trust;
- any advancement or distribution of capital of the Trust; or
- any resettlement of the trust property.
21. Dispute Resolution
21.1 All disputes and differences between the Buyer and SPR touching and concerning this Contract shall be referred to arbitration under a single arbitrator agreed upon by both parties, or failing agreement, by two arbitrators (one to be appointed by each party) and their umpire (appointed by them prior to arbitration), such arbitration to be carried out in accordance with provisions of the Arbitration Act 1996.
22.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
22.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.
22.3 SPR shall be under no liability whatsoever to the Buyer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by SPR of these terms and conditions (alternatively SPR’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
22.4 SPR may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Buyer’s consent.
22.5 The Buyer cannot licence or assign without the written approval of SPR.
22.6 SPR may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Buyer agrees and understands that they have no authority to give any instruction to any of SPR’s sub-contractors without the authority of SPR.
22.7 The Buyer agrees that SPR may amend their general terms and conditions for subsequent future contracts with the Buyer by disclosing such to the Buyer in writing. These changes shall be deemed to take effect from the date on which the Buyer accepts such changes, or otherwise at such time as the Buyer makes a further request for SPR to provide Goods to the Buyer.
22.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
22.9 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.v