1.1 “M&M” shall mean M&M Fencing (NZ) Ltd its successors and assigns or any person acting on behalf of and with the authority of M&M Fencing (NZ) Ltd.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by M&M to the Client
1.3 “Guarantor” means that person (or persons) or entity, who agrees to be liable for the debts of the Client on a principle debtors basis.
1.4 “Goods” shall mean Goods supplied by M&M to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and includes Goods described on any invoices, quotation, work authorisation or any other forms as provided by M&M to the Client.
1.5 “Services” shall mean all services supplied by M&M to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the price payable for the Goods as agreed between M&M and the Client is accordance with clause 3 of this contract.
2.1 Any instructions received by M&M from the Client for the supply of Goods and/or the Clients acceptance of Goods supplied by M&M shall constitute acceptance of the terms and condition 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 binding and can only be amended with the written consent of M&M.
2.4 The Client shall give M&M not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Clients name and/or any other change in the Clients details (including but not limited to, changes in the Clients address, facsimile number, or business practice). The Client shall be liable for any loss incurred by M&M as a result of the Clients failure to comply with this clause.
3. Price And Payment
3.1 At M&M’s sole discretion the Price shall be either:
(a) As indicated on invoices provided by M&M to the Client in respect of Goods supplied; or
(b) M&M quoted Price (subject to clause 3.2) which shall be binding upon M&M provided that the Client shall accept M&M’s quotation in writing within thirty (30) days.
3.2 M&M reserves the right to change the Price in the event of a variation to M&M’s quotation
3.3 At M&M’s sole discretion a deposit may be required.
3.4 At M&M’s sole discretion:
(a) payment shall be due on delivery of the Goods; or
(b) payment shall be due before delivery of the Goods; or
(c) payment for approved Client’s shall be made by instalments in accordance with M&M’s payment schedule: or
(d) payment for the approved Client’s shall be due twenty (20) days following the end of the month in which a statement is posted to the Client’s address or address for notices.
3.5 M&M may submit a detailed payment claim at intervals not less than one month for work performed up to the end of each month. The value of work so performed shall include the reasonable value of authorised variations, whether or not the value of such variations has been finally agreed between the parties, and the value of materials delivered to the site but not installed.
3.6 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
3.7 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Client and M&M.
3.8 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
4. Delivery Of Goods
4.1 Delivery of the Goods shall take place when the Client takes possession of the Goods at the Clients nominated address.
4.2 At M&M’s sole discretion the costs of delivery are:
(a) included in the Price; or
(b) in addition to the Price
4.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then M&M shall be entitled to charge a reasonable fee for redelivery.
4.4 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
4.5 The failure of M&M to deliver shall not entitle either party to treat this contract as repudiated.
4.6 M&M shall not be liable for any loss or damage whatever due to failure by M&M to deliver the Goods (or any of them) promptly or at all.
5.1 If M&M retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
5.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, M&M is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by M&M is sufficient evidence of M&M’s rights to receive the insurance proceeds without the need for any person dealing with M&M to make further enquires.
6.1 M&M and Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid M&M all amounts owning for the particular Goods: and
(b) the Client has met all other obligations due by the Client of M&M is respect of all Contracts between M&M and the Client.
6.2 Receipt by M&M 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 M&M’s ownership or rights in respect of the Goods shall continue.
6.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until M&M shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from M&M to the Client M&M may give notice in writing to the Client to return the Goods or any of them to M&M. Upon such notice being given the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) the Client is only a bailee of the Goods and until such time as M&M has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods on trust for M&M; and
(d) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that M&M will be the owner of the end products; and
(e) if the Client fails to return the Goods to M&M then M&M or M&M’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Goods are situated as the invitee of the Client and take possession of the Goods, and M&M will not be liable for any reasonable loss or damage suffered as a result of any action by M&M under this clause.
7. Personal Property Securities Act (‘PPSA”)
7.1 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 M&M to the Client (if any) and all Goods that will be supplied in the future by M&M to the Client.
7.2 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 M&M may reasonably required to register a financing statement or financing change statement on the Personal Property Securities register.
(b) indemnify, and upon demand reimburse, M&M 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 on a change demand without the prior written consent of M&M; and
(d) immediately advise M&M 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
7.3 M&M and the Client agree that nothing in sections 114 (I)(a). 133 and 134 of the PPSA shall apply to these terms and conditions.
7.4 The Client waives its rights as a debtor under section 116, 120(2), 121, 125, 126, 127, 129, 131, and 132 of the PPSA.
7.5 Unless otherwise agreed to in writing by M&M, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
7.6 The Client shall unconditionally ratify any actions taken by M&M under clauses 7.1 to 7.5
8. Client’s Disclaimer
8.1 The Client hereby disclaims any right to rescind or cancel any contract with M&M or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by M&M and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgment.
9.1 The Client shall inspect the Goods on delivery and shall within fourteen (14) days of delivery (time being of the essence) notify M&M of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote.
The Client shall afford M&M 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 presumed to be free from any defect or damage. For defective Goods, which M&M has agreed in writing that the Client is entitled to reject, M&M’s liability is limited to whether (at M&M’s discretion) replacing the Goods or repairing the Goods.
9.2 Goods will not be accepted for return other than in accordance with 9.1 above.
10.1 For Goods not manufactured by M&M, the warranty shall be the current warranty provided by the manufacturer of the Goods. M&M 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.
10.2 To the extent permitted by statute, no warranty is given by M&M as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. M&M shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
11. Consumer Guarantees Act 1993
11.1 If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by M&M to the Client.
12 Default & Consequences Of Default
12.1 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 such interest compound monthly at such a rate after as well as before any judgment.
12.2 If the Client defaults in payment of any invoice when due, the client shall indemnify M&M from and against all costs and disbursement incurred by M&M in pursing the debt including legal costs on a solicitor and own client basis and M&M’s collection agency costs.
12.3 Without prejudice to any other remedies M&M may have, if at any time the Client is in breach of any obligation (including those relating to payment); M&M may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. M&M will not be liable to the Client for any loss or damage the Client suffers because M&M has exercised its right under this clause.
12.4 If any account remains overdue after thirty (30) days then an amount of the greater of $20.00 or 10.00% of the amount overdue (up to a maximum of $200) shall be levied for administration fees which sum shall become immediately due and payable.
12.5 Without prejudice to M&M’s other remedies at law M&M shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to M&M shall, whether or not due for payment, becomes immediately payable in the event that:
(a) any money payable to M&M becomes overdue, or in M&M’s opinion the Client will be unable to meet it payments as they fall due: or
(b) the Client 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
(c) a receiver, manager liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
13 Security And Charge
13.1 Despite anything to the contrary contained herein or any other rights which M&M 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 M&M or M&M’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that M&M (or M&M’s nominee) shall be entitles to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should M&M elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify M&M from and against all M&M’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint M&M or M&M’s nominee as the Clients’ and/or Guarantors’ true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 13.1.
14.1 M&M 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 Client. On giving such notice M&M shall repay to the Client any sums paid in respect of the Price. M&M shall not be liable for any loss or damage whatever arising from such cancellation.
14.2 In the event that the Client cancels delivery of the Goods the Client shall be liable for any loss incurred by M&M (including, but not limited to, any loss of profits) up to the time of cancellation.
15 Privacy Act 1993
15.1 The Client and the Guarantor/s (if separate to the Client) authorises M&M to
(a) collect, retain and use any information about the Client, for the purposes of assessing the Clients creditworthiness or marketing products and service to the Client; and
(b) disclose information about the Client, whether collected by M&M from the Client directly or obtained by M&M 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 Client.
15.2 Where the Client and/or Guarantors are an individual the authorities under clause 15.1 are authorities or consents for the purposes of the Privacy Act 1993.
15.3 The Client and/or Guarantors shall have the right to request M&M for a copy of the information about the Client and/or Guarantors retained by M&M and the right to request M&M to correct any incorrectly information about the Client and/or Guarantors held by M&M.
16 Unpaid M&M’s Rights
16.1 Where the Client has left any item with M&M for repair, modification, exchange or for M&M to perform any other Service in relation to the item and M&M has not received or been tendered the whole of the Price, or the payment has been dishonoured, M&M shall have:
(a) a lien on the item
(b) the right to retain the item for the Price while M&M is in possession of the item;
(c) a right to sell the item.
16.2 The lien of M&M shall continue despite the commencement of proceedings, or judgement for the Price having been obtained.
17 Construction Contracts Act 2002
17.1 The Client hereby expressly acknowledges that:
(a) M&M 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 Client, and:
(i) the payment is not paid in full by the due date for payment and no payment schedule has been given by the Client; or
(ii) a scheduled amount stated in a payment schedule issued by the Client in relation to the payment claim is not paid in full by the due date for its payment; or
(iii) the Client has not complied with an adjudicator’s notice that the Client must pay and amount to M&M by a particular date; and
(iv) M&M has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction contract.
(b) if M&M 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 Client or by any person claiming through the Client; 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 M&M exercises the right to suspend work, the exercise of that right does not:
(i) affect any rights that would otherwise have been available to M&M under the Contractual Remedies Act 1979: or
(ii) enable the Client to exercise any rights that may otherwise have been available to the Client under the Act as a direct consequence of M&M suspending work under this provision.
18.1 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.
18.2 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.
18.3 M&M shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Clients arising out of a breach by M&M of these terms and conditions.
18.4 In the event of any breach of this contract by M&M the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
18.5 The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owned to the Client by M&M.
18.6 M&M may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
18.7 M&M reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which M&M notifies the Client of such change.
18.8 The provisions of the Contractual Remedies Act 1979 shall apply to this contract as if section 15(d) were omitted from the Contractual Remedies Act 1979.
18.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.