|3 Honan Place, Avondale, Auckland, PH: (09) 828 1180 Fax: (09) 828 1182 Mob: 021 959 514|
MACLON INDUSTRIES TERMS & CONDITIONS
1.1 “Seller” shall mean Maclon Industries (NZ) Ltd and its successors and assigns.
1.2 “Client” shall mean the Client or any person acting on behalf of and with the authority of the Client.
1.3 “Guarantor” means that person (or persons), or entity that agrees herein to be liable for the debts of the Client if a Limited Liability Client on a principal debtor basis.
1.4 “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 Client (and where the context so permits shall include any supply of Services as hereinafter defined).
1.5 “Services” shall mean all services supplied by the Seller to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined supra).
1.6 “Price” shall mean the cost of the goods as agreed between the Seller and the Client subject to clause 4 of this contract.
2.1 Any instructions received by the Seller from the Client for the supply of Goods shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Seller.
2.4 None of the Seller’s Sellers or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Seller in writing nor is the Seller bound by any such unauthorised statements.
3. Goods / Services
3.1 The Goods and/or Services are as described on the invoices, quotation, work authorisation or any other work commencement forms as provided by the Seller to the Client.
4. Price And Payment
4.1 At the Sellers sole discretion;
(a) The Price shall be as indicated on invoices provided by the Seller to the Client in respect of Goods supplied; or
(b) The Price of the Goods shall, subject to clause 4.2, be the Sellers quoted Price which shall be binding upon the Seller provided that the Client shall accept in writing the Sellers quotation within thirty (30) days.
4.2 The Seller may by giving notice to the Client at any time before delivery increase the Price of the Goods to reflect any increase in the cost to the Seller beyond the reasonable control of the Seller.
4.3 Time for payment for the Goods/Services shall be of the essence and will be stated on the invoice, quotation or any other order forms. If no time is stated then payment shall be due thirty (30) days following the end of the month in which a statement is posted to the Buyer’s address or address for notices.
4.4 The Seller may withhold delivery of the Goods until the Buyer has paid for them, in which event payment shall be made before the delivery date.
4.5 Payment will be made by cash on delivery, or by cheque, or by direct credit, or by any other method as agreed to between the Client and the Seller.
4.6 The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Seller.
5. Delivery Of Goods
5.1 Delivery of the Goods shall be made to the Buyer’s address. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery, or delivery of the Goods shall be made to the Buyer at the Sellers address.
5.2 Delivery of the Goods to a third party nominated by the Buyer is deemed to be delivery to the Buyer for the purposes of this agreement.
5.3 Where there is no agreement that the Seller shall send the Goods to the Buyer, delivery to a carrier at limited carrier’s risk at the expense of the Buyer is deemed to be delivery to the Buyer.
5.4 For orders over $200 (as may be determined from time to time) freight will be paid by the Seller.
5.5 The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
5.4 The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.
6.1 If the Seller retains property in the Goods nonetheless all risk for the Goods passes to the Client on delivery.
6.2 If any of the Goods are damaged or destroyed prior to property in them passing to the Client, the Seller is entitled, without prejudice to any of its other rights or remedies under these terms and conditions (including the right to receive payment of the balance of the Price for the Goods), 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. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
7.1 The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery notify the Seller of any alleged shortage in quantity, damage or failure to comply with the description. The Client shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client 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 damage.
7.2 For defective Goods which the Seller has agreed in writing that the Buyer 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 Buyer has complied with the provisions of clause 7.1;
(b) the Goods are returned at the Buyers cost within fourteen (14) days of the delivery date with prior approval of the Seller;
(c) the Seller will not be liable for Goods which have not been stored or used in a proper manner;
7.3 The Seller may (in its discretion) accept the Goods for credit but this may incur a restocking fee of 15% of the value of the returned Goods plus any freight.
8.1 For Goods not manufactured by the Seller the warranty shall be the 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.
9. Default & Consequences Of Default
9.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and shall accrue at such a rate after as well as before any judgement.
9.2 If the Client defaults in payment of any invoice when due, the Client shall indemnify the Seller from and against all the Seller’s costs and disbursements including on a solicitor and own Client basis and in addition all of EC Credit Control Pty Ltd’s costs of collection.
9.3 Without prejudice to any other remedies the Seller may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. The Seller will not be liable to the Client for any loss or damage the Client suffers because the Seller exercised its rights under this clause.
10.1 It is the intention of the Seller and agreed by the Client that property in the goods shall not pass until:
(a) The Client has paid all amounts owing for the particular Goods, and
(b) The Client has met all other obligations due by the Client to the Seller in respect of all contracts between the Seller and the Client, and that the Goods, or proceeds of the sale of the Goods, shall be kept separate until the Seller shall have received payment and all other obligations of the Client are met.
10.2 It is further agreed that:
(a) The Buyer shall not deal with the money of the Seller in any way which may be adverse to the Seller.
(b) Until such time as ownership of the Goods shall pass from the Seller to the Buyer the Seller may give notice in writing to the Buyer to return the Goods or any of them to the Seller. Upon such notice the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease.
(c) If the Buyer 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 Buyer, or any premises as the invitee of the Buyer, where the Goods are situated and take possession of the Goods, without being responsible for any damage thereby caused.
(d) Receipt by the Seller 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 and until then the Seller’s ownership of rights in respect of the Goods shall continue.
(e) The Buyer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Seller.
(f) The Seller may require payment of the Price or the balance of the Price due together with any other amounts due from the Buyer to the Seller arising out of these terms and conditions, and the Seller may take any lawful steps to require payment of the amounts due and the Price.
(g) The Seller can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Buyer.
(h) Until such time the Buyer has the Seller’s authority to convert the goods into other products and if the goods are so converted, the parties agree that the Seller will be the owner of the end products.
11. Personal Property Securities Act 1999
11.1 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
(a) These terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) A security interest is taken in all Goods previously supplied by the Seller to the Client (if any) and all Goods that will be supplied in the future by the Seller to the Client during the continuance of the parties relationship;
11.2 The Client undertakes to:
(a) sign any further documents and/or provide any further information, such information to be complete, accurate and up-to-date in all respects, which the Seller may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, the Seller 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;
(c) not register a financing change statement or a change demand without the prior written consent of the Seller;
(d) give the Seller not less than fourteen (14) days prior written notice of any proposed change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice); and
(e) immediately advise the Seller 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.
(f) The Seller and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms and Conditions.
(g) The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
11.3 Unless otherwise agreed to in writing by the Seller, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
11.4 The Client unconditionally ratifies any actions taken by the Seller under and by virtue of the power of attorney given by the Client to the Seller under clauses 11.1 to 11.3.
12. Security & Charge
12.1 Notwithstanding anything to the contrary contained herein or any other rights which the Seller may have howsoever:
(a) Where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree 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 Client and/or the Guarantor acknowledge and agree 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 Client and/or Guarantor shall indemnify the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own Client basis.
(c) To give effect to the provisions of clause [11, 12.1(a) to (c)] inclusive hereof the Client and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Seller or the Seller’s nominee, namely EC Credit Control Limited as the Client’s and/or Guarantor’s true and lawful attorney to execute mortgages and charges (whether registerable or not) including such other terms and conditions as the Seller and/or EC Credit Control Limited shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Client and/or the Guarantor in any land, realty or asset in favour of the Seller and in the Client’s and/or Guarantor’s name as may be necessary to secure the said Client’s and/or Guarantor’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 discretion which may be necessary or advantageous to give effect to the provisions of this clause.
13. Consumer Guarantees Act 1993
13.1 This agreement is subject, in all cases except where the Buyer is contracting within the terms of a trade/business (which cases are specifically excluded), to the provisions of the Consumer Guarantees Act 1993.
14.1 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 Client any sums paid in respect of the Price for those Goods. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
15. Privacy Act
15.1 The Client and the Guarantor/s (if separate to the Client) authorises the Seller to collect, retain and use any information about the Client, for the purpose of assessing the Clients creditworthiness or marketing any Goods and Services provided by the Seller to any other party.
15.2 The Client authorises the Seller to disclose any information obtained to any person for the purposes set out in clause 15.1
15.3 Where the Client is a natural person the authorities under (clause 15.1 & 15.2) are authorities or consents for the purposes of the Privacy Act 1993.
16. Clients Disclaimer
16.1 The Client 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 servant or Seller of the Seller and the Client acknowledges that he buys the Goods relying solely upon his own skill and judgement 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 Manufacturer which warranty shall be personal to the Client and shall not be transferable to any subsequent Client.
17.1 If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
17.2 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 which affect the Goods or Services supplied
17.3 The Seller shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Seller of these terms and conditions.
17.4 In the event of any breach of this contract by the Seller the remedies of the Client shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Goods.
17.5 Neither party shall be liable for any default due to any act of God, terrorism, war, strike, lock out, industrial action, flood, storm or other event beyond the reasonable
17.6 The Client shall not set off against the Price amounts due from the Seller.
17.7 The Seller may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.8 The Seller reserves the right to review these terms and conditions at any time and from time to 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 Client of such change.