Mount Maunganui Engineering 2000 Ltd
1. Definitions
“Seller: shall mean Mount Maunganui Engineering 2000 Ltd
“Customer” shall mean the Customer or any person acting on behalf of and with the authority of the customer.
“Goods” shall have the same meaning as in section 2 of the Sale of Goods Act 1908 and are Goods supplied by the Seller to the Customer.
“Services” shall mean all Services supplied by the Seller to the Customer and includes any advice or recommendations.
‘Price” shall mean the cost of the Goods and/ or Services as agreed between the Seller and the Customer.
2. Acceptance
Any instructions received by the Seller from the Customer for the supply of Goods and/ or Services, and/ or acceptance of Goods and /or Services by the Customer, shall constitute acceptance of the terms and conditions contained herein.
The Seller shall not be bound by any unauthorised statements, conditions or agreements, made by the Seller’s representative, not expressed by the Seller in writing.
3. Goods / Services
The Goods and/ or Services are as described on the quotation, work authorization, or invoice as provided by the Seller to the Customer.
4. Price and Payment
The price for Goods and/ or Services shall be the Seller’s current price at the date of delivery of the Goods and/ or Service, or as indicated on invoices provided by Seller to the Customer, or the Seller’s quoted price, provided that the Customer accepts the Seller’s quotation within thirty days (30). Applicable GST having been added to such prices. Payment will be due on the 20th each month following the posting of a statement to the Customers address. Time for payment being of the essence.
5. Default & Consequences of Default
Interest on overdue invoices shall accrue daily, at a rate of 2.5% per calendar month, from the date when payment becomes due, until the date of payment.
If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Seller from and against the Seller’s costs and disbursements including legal costs on a solicitor and own client basis, and in addition, all the Seller’s costs of collection.
If any account remains unpaid at the end of the second month after supply the Goods and/ or Services, an immediate amount of the greater of $20.00 or 10.00% of the amount overdue shall be levied for administration fees, which sum shall become immediately due and payable in addition to the interest payable.
6. Title
It is the intention of the Seller and agreed by the Customer that title in the Goods shall not pass until the Customer has paid all amounts, owing for the particular Goods, and the Customer has met all other obligations due by the Customer to the Seller, as regards all contracts between the Seller and the Customer.
Until such time as ownership of the Goods shall pass from the Seller to the Customer the Seller may give notice in writing to the Customer to return the Goods or any of them to the Seller. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease.
If the Customer fails to return the Goods to the Seller then the Seller or the Seller’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Goods are situated and take possession of the Goods, without being responsible for any damage thereby caused.
This provision does not entitle the Customer to return the Goods without demand from the Seller, except in accordance with Clause 10 or 13 herein.
7. Consumer Guarantees Act 1993
This agreement is subject, in all cases except where the Customer is contracting within the terms of a trade/business (which cases are specifically excluded), to the provisions of the Consumer Guarantees Act 1993.
8. Privacy Act 1993
The Customer authorises the Seller to collect, retain and use any information about the Customer, for the purpose of assessing the Customer’s creditworthiness, or marketing any Goods and/or Services provided by the Seller to any other party.
The Customer authorises the Seller to disclose any information obtain to any person, for the purposes set out above.
Where the Customer is a natural person, the authorities above, are authorities or consents for the purposes of the Privacy Act 1993.
9. Risk
Even if the Seller retains title in the Goods, nonetheless all risk for the Goods passes to the Customer on delivery.
If any of the Goods are damaged or destroyed prior to title in them passing to the Customer, the Seller is entitled, without prejudice to any of its other rights or remedies under these terms and conditions, to receive all insurance proceeds payable in respect of the Goods. This applies whether or not the Price has become payable under these terms and conditions.
10. Defects
The Customer shall inspect the Goods on delivery and shall within fourteen (14) days of delivery notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery, if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
For defective Goods which the Seller has agreed in writing that the Customer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods or repairing the Goods provided that:
(a) the Customer has complied with the provisions above
(b) the Seller will not be liable for Goods which have not been stored or used in a proper manner.
11. Disclaimer
The Customer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any representative of the Seller. The Customer acknowledges that he buys the goods relying solely upon his skill and judgment and that the Seller shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the Manufacture.
12. Cancellation
The Seller may cancel these terms and conditions or cancel delivery of Goods and Services at any time before the Goods are delivered by giving written notice. On giving such notice the Seller shall promptly repay to the Customer any sums paid in respect of the Price for those Goods. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation.
At the Seller’s sole discretion the Customer may cancel delivery of Goods and/or Services. In the event that the Customer cancels delivery of Goods and/or Services the Customer shall be liable for any cost incurred by the Seller up to the time of cancellation.
13. Warranty
The Seller warrants that if any defect in any workmanship manufactured by the Seller becomes apparent and is reported to the Seller within five (5) years of the date of delivery (time being of the essence) then the Seller will (at the Sellers sole discretion) repair the defect or replace the workmanship.
The conditions applicable to the warranty given are:
(a) The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
i) Failure on the part of the Customer to properly maintain any Goods; or
ii) Failure on the part of the Customer to follow any instructions or guidelines provided by the Seller; or
iii) Any use of any Goods otherwise than for any application specified on a quote or order from; or
iv) The continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
v) Fair wear and tear, any accident or act of God.
(b) The warranty shall cease and the Seller shall thereafter in no circumstance be
liable under the terms of the warranty if the workmanship is repaired, altered or
overhauled without the Seller’s consent.
(c) In respect of all claims the Seller shall not be liable to compensate the Customer for any delay in either replacing or repairing the workmanship/Goods or in properly assessing the Customers claim.
(d) Any such warranty shall be personal to the Customer and shall not be transferable. For goods not manufactured by the Seller the warranty shall be current warranty provided by the manufacturer of the Goods. The Seller shall be under no liability whatsoever except for the express conditions as detailed and stipulated in the manufacturers warranty.
14. Security & Charges
Despite anything to the contrary contained herein or any other rights which the Seller may have howsoever:
(a) Where the Customer is the owner of land, realty or any other asset capable of being charged, the Customer agrees to mortgage and/ or charge all of their joint and/ or several interest in the said land, realty or any other asset to the Seller or the Seller’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Customer acknowledges and agrees that the Seller (or the Seller’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) Should the Seller elect to proceed in any manner in accordance with this clause and/ or its sub-clauses, the Customer shall indemnify the Seller from the and against the Seller’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) To give effect to the provisions of this clause the Customer does hereby irrevocably nominate, constitute, and appoint the Seller or the Seller’s nominee as the Customer’s true and lawful attorney to execute mortgages and charges (whether register able or not) including such other terms and conditions as the Seller and/ or the Sellers nominee shall think fit in their absolute discretion against the joint and/ or several interest of the Customer in any land, realty or asset in favor of the Seller and in the Customer’s name as may be necessary to secure the said Customer’s obligations and indebtedness to the Seller and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in the Seller’s absolute discretions which may be necessary or advantageous to give effect t to the provisions of this clause.
15. Construction Contracts Act 2002
If the Customer is owner occupier as defined by the Construction Contracts Act, 2002 the Customer acknowledges that:
(a) The Seller has the right to suspend work within five (5) working days of written notice of its intent to do so if a payment claim is served on the Customer, and:
i) The payment is not paid in full by the due date for payment and no payment schedule has been given by the Customer; or
ii) A scheduled amount stated in a payment schedule issued by the Customer in relation to the payment claim is not paid in full by the due date for its payment; or
iii) The Customer has not complied with an adjudicator’s notice that the Customer must pay an amount to the Seller by a particular date; and
iv) The Seller has given written notice to the Customer of its intention to suspend the carrying out of construction work under the construction contract.
(b) If the Seller suspends work, it:
i) Is not in breach of contract; and
ii) Is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Customer or by any person claiming through the Customer; and
iii) Is entitled to an extension of time to complete the contract; and
iv) Keeps its rights under the contract including the right to terminate the contract; and may at any time lift the suspension, even if the amount has not been paid or an adjudicator’s determination has not been complied with.
(c) If the Seller exercises the right to suspend work, the exercise of that right does not:
i) Affect any rights that would otherwise have been available to the Seller under the Contractual Remedies Act 1979; or
ii) Enable the Customer to exercise any rights that may otherwise have been available to the Customer under that Act as a direct consequence of the Seller suspending work under this provision.
16. Lien
Where the Seller has not received the whole of the price, or the payment has been dishonored, the Seller shall have:
(a) A lien on the Goods;
(b) The Right to retain them from the Price while the Seller is in possession of them;
(c) The right of stopping the goods in transit whether or not delivery has been made or ownership has passed; and
(d) A right of resale,
(e) The foregoing right of disposal, provided that the lien of the Seller shall continue despite the commencement of proceedings or judgment for the price been obtain.
17. General
If any provision of these terms and conditions shall be deemed invalid, void, illegal or unenforceable, the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
All Goods and Services supplied by the Seller are subject to the laws of New Zealand and the Seller takes no responsibility for changes in the law that affect the Goods or Services supplied. In the event of any breach of this contract by the Seller the remedies of the Customer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Goods and/ or Services.
The Seller may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
The Customer shall not set off against the Price amounts due from the Seller.
The Seller reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the Seller notifies the Customer of such change.
18. Personal Property Securities Act 1999
Until full payment has been received in respect of the goods supplied the buyer acknowledges and agrees that:
i) These terms and conditions constitute a security agreement for the purposes of section 36 of the Personal Property Securities Act 1999: and
ii) A security interest is taken in all goods previously supplied by Mount Maunganui Engineering 2000 Ltd to the buyer (if any) and all goods that will be supplied in the future by Mount Maunganui Engineering 2000 Ltd to the buyer during the continuance of the parties relationship;
The buyer undertakes to:
i) Sign any further documents and/ or provide any further information, such information to be complete, accurate and up-to-date in all respects, which Mount Maunganui Engineering 2000 Ltd may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register.
ii) Indemnify, and upon demand reimburse, Mount Maunganui Engineering 2000 Ltd for all expenses incurred in registering a financing statement or financing change statement on the PPSR or releasing any goods charged thereby;
iii) Not Register a financing change statement (in accordance with Regulation 9) or a change demand (in accordance with Regulation10) without the prior written consent of Mount Maunganui Engineering 2000 Ltd;
iv) Give Mount Maunganui Engineering 2000 Ltd not less than 14 days prior written notice of any proposed change in the buyer’s name and/ or any other change in the buyer’s details (including but not limited to, changes in the buyer’s address, facsimile number, or business practice); and
v) Immediately advise Mount Maunganui Engineering 2000 Ltd of any material change in its business practices of selling the goods, which would result in a change in they nature of proceeds derived from such sale.
Unless otherwise agreed to in writing by Mount Maunganui Engineering 2000 Ltd, the buyer waives its right to receive a verification statement in accordance with section 148 of the PPSA.