TERMS OF TRADE
1.1 “MIEC” means Milbank Industrial Electric Co. Limited, its successors and assigns or any person acting on behalf of and with the authority of Milbank Industrial Electric Co. Limited.
1.2 “Client” means the person/s person/s requesting MIEC to provide the Services as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 “Services” means all Services provided by MIEC to the Client at the Client’s request from time to time, and where the context so permits the terms ‘Services’ or ‘Goods’ shall be interchangeable for the other.
1.4 “Goods” means all Goods provided by MIEC to the Client, either separately, or as part of the Services.
1.5 “Price” means the price payable for the Services as agreed between MIEC and the Client in accordance with clause 4 below.
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts Services provided by MIEC.
2.2 These terms and conditions may only be amended with MIEC’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and MIEC.
3. Change in Control
3.1 The Client shall give MIEC not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by MIEC as a result of the Client’s failure to comply with this clause.
4. Price and Payment
4.1 The Client accepts and acknowledges that for any call-out or on-site Services, a minimum call-out fee of four (4) hours labour plus travel costs will apply under all circumstances.
4.2 At MIEC’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by MIEC to the Client;
(b) MIEC’s estimated price (subject to clause 4.3), which shall not be deemed binding upon MIEC as the actual Price can only be determined upon provision of the Services. MIEC undertakes to keep the Client informed should the actual Price look likely to exceed the original estimate;
(c) MIEC’s quoted price (subject to clause 4.3), which shall be binding upon MIEC provided that the Client shall accept MIEC’s quotation in writing within thirty (30) days of issue.
4.3 MIEC reserves the right to change the Price:
(a) if a variation to the Goods which are to be provided is requested; or
(b) if a variation to the Services originally scheduled (including any applicable instructions or specifications) is requested; or
(c) where additional Services are required due to the discovery of hidden or unidentifiable difficulties and/or faults, which are only discovered on commencement of the Services; or
(d) in the event of increases to MIEC in the cost of labour or materials and/or Goods, due to price or currency exchange fluctuations, which are beyond MIEC’s control.
4.4 At MIEC’s sole discretion, a non-refundable deposit shall be required upon request by MIEC.
4.5 Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by MIEC, which may be:
(a) on provision of the Services;
(b) twenty (30) days following the end of the month, in which a statement is posted to the Client’s address or address for notices;
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by MIEC.
4.6 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Client and MIEC.
4.7 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to MIEC an amount equal to any GST MIEC must pay for any provision of Services by MIEC under this or any other agreement. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client 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.
5. Dimensions, Plans and Specifications
5.1 Unless MIEC and the Client agree otherwise in writing, all customary industry tolerances shall apply to the dimensions and measurements of the Goods.
5.2 MIEC shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client, and it shall be the responsibility of the Client to verify the accuracy of the any estimated measurements and quantities, before the Client places an order based on such estimate or accepts such quotation.
6.1 Delivery shall be deemed to take place:
(a) where MIEC is providing Goods only, immediately at the time that either;
(i) the Client or the Client’s nominated carrier takes possession of the Goods at MIEC’s address; or
(ii) the Goods are delivered by MIEC or MIEC’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).
(b) upon completion of the Services, and notice by MIEC to the Client of the same.
6.2 At MIEC’s sole discretion, the cost of delivery is in addition to the Price.
6.3 The Client must take delivery, either by receipt or collection of the Goods (or vehicle) whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods (or vehicle) as arranged then MIEC shall be entitled to charge a reasonable fee for redelivery and/or storage.
6.4 MIEC may make delivery in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.5 Any time or date given by MIEC to the Client is an estimate only. The Client must still accept delivery of the Goods even if late and MIEC will not be liable for any loss or damage incurred by the Client as a result of the delivery being late, including where such delay is due to unavailability and/or delay of Goods, materials or parts from MIEC’s suppliers.
7.1 If MIEC retains ownership of the Goods under clause 8, then all risk for the Goods shall immediately pass to the Client on delivery, and shall remain with the Client until such time as MIEC may repossess the Goods, and the Client must insure the Goods on, or before, delivery.
7.2 MIEC reserves its right to seek compensation or damages for any damage, destruction or loss suffered in relation to the Goods as a result of the Client’s failure to insure in accordance with clause 7.1.
7.3 If the Client requests MIEC to leave the Goods outside MIEC’s premises for collection, or to deliver the Goods to an unattended location, then such Goods shall be left at the Client’s sole risk.
8.1 MIEC and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid MIEC all amounts owing to MIEC; and
(b) the Client has met all of its other obligations to MIEC.
8.2 Receipt by MIEC 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.
8.3 It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 8.1 that the Client is only a bailee of the Goods and must return the Goods to MIEC on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for MIEC and must pay to MIEC the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Client 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 Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for MIEC and must pay or deliver the proceeds to MIEC on demand.
(d) the Client should not convert or process the Goods or intermix them with other Goods, but if the Client does so then the Client holds the resulting product on trust for the benefit of MIEC and must sell, dispose of or return the resulting product to MIEC as it so directs.
(e) the Client irrevocably authorises MIEC to enter any premises where MIEC believes the Goods are kept and recover possession of the Goods.
(f) MIEC may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Client 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 MIEC.
(h) MIEC may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
9. Personal Property Securities Act 1999 (“PPSA”)
9.1 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 MIEC to the Client (if any) and all Goods that will be supplied in the future by MIEC to the Client.
9.2 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 MIEC may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, MIEC 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 MIEC; and
(d) immediately advise MIEC 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.
9.3 MIEC and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
9.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
9.5 Unless otherwise agreed to in writing by MIEC, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
9.6 The Client shall unconditionally ratify any actions taken by MIEC under clauses 9.1 to 9.5.
10. Security and Charge
10.1 In consideration of MIEC agreeing to provide the Services, the Client 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 Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
10.2 The Client indemnifies MIEC from and against all MIEC’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising MIEC’s rights under this clause.
10.3 The Client irrevocably appoints MIEC and each director of MIEC as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Client’s behalf.
11. Loan Machinery
11.1 Any machinery supplied by MIEC to the Client on loan:
(a) shall at all times remain the property of MIEC and are returnable on demand by MIEC.
(b) may only be operated during the period of loan by the Client or any other person that MIEC agrees may operate the machinery, and then only if they hold a current licence appropriate for the machinery at the time when they are operating it.
11.2 The Client shall:
(a) ensure that all reasonable care is taken in operating the machinery and that it is left securely locked when not in use;
(b) keep the machinery in the Client’s own possession and control, and shall not allow the use of the machinery by any third party;
(c) not alter or make any additions to the machinery including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the machinery, or in any other manner interfere with the machinery;
(d) keep the machinery, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by MIEC to the Client. In the event that the machinery is not returned in clean condition then MIEC reserves the right to charge the Client for all costs MIEC incurs in cleaning the machinery.
11.3 The Client acknowledges and agrees that they shall not permit any form of charge to be applied in relation to the machinery, and further agrees that they shall not be entitled to any form of lien over the machinery.
11.4 The Client, by signing this agreement, accepts that they shall be liable to MIEC for any loss of, or damage to, the machinery and consequential loss to the full extent of any insurance excess (where applicable). In the event insurance is rendered invalid by any action of the Client then the Client shall be liable to MIEC for the full cost of repairing or replacing the machinery (whichever is the lesser).
12. Client’s Disclaimer
12.1 The Client hereby disclaims any right to rescind, or cancel any contract with MIEC or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by MIEC and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgment.
13.1 The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify MIEC of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford MIEC 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 MIEC has agreed in writing that the Client is entitled to reject, MIEC’s liability is limited to either (at MIEC’s discretion) replacing the Goods or repairing the Goods.
13.2 Goods will not be accepted for return other than in accordance with 13.1 above.
13.3 MIEC shall not be liable for any claims (including, but not limited to any warranty claim or claim for defects), demands, losses, damages, costs and expenses caused or arising from the incorrect installation of those Goods, or where the Goods are used for any purpose other than the intended application.
13.4 The Client acknowledges that MIEC is only responsible for parts that are replaced by MIEC and does not at any stage accept any liability in respect of previous services and/or goods supplied by any other third party that subsequently fail and found to be the source of the failure, the Client agrees to indemnify MIEC against any loss or damage to the Goods, or caused by the Goods, or any part thereof howsoever arising.
14.1 For Goods not manufactured by MIEC, the warranty shall be the current warranty provided by the manufacturer of the Goods. MIEC 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.
14.2 In the case of second hand Goods, the Client acknowledges that he has had full opportunity to inspect the same and that he accepts the same with all faults and that no warranty is given by MIEC as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. MIEC shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
15. Consumer Guarantees Act 1993
15.1 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 MIEC to the Client.
16. Confidentiality and Intellectual Property
16.1 MIEC agrees to treat as confidential any information obtained or created during the performance of inspection or service activities which by its nature, or by the circumstances of its disclosure, is or could reasonably be expected to be regarded as confidential (“Confidential Information”). Neither party will use or disclose any Confidential Information, except so far as may be reasonably necessary to enable that party to fulfil its obligations or exercise its rights under these Terms or as required by law.
16.2 All intellectual property in any Goods and/or Services that Supplier provides to the Customer remain the sole and exclusive property of Supplier and copyright in all drawings, specifications and other technical information provided by Supplier in connection with the provision of Goods and/or Services by Supplier is vested in Supplier.
16.3 Where MIEC has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of MIEC.
16.4 The Client warrants that all designs, specifications or instructions given to MIEC will not cause MIEC to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify MIEC against any action taken by a third party against MIEC in respect of any such infringement.
16.5 The Client agrees that MIEC may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, photographs, or Goods which MIEC has created for the Client.
17. Default and Consequences of Default
17.1 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 MIEC’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
17.2 If the Client owes MIEC any money the Client shall indemnify MIEC from and against all costs and disbursements incurred by MIEC in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, MIEC’s collection agency costs, and bank dishonour fees).
17.3 MIEC may, at their sole discretion, charge the Client a late payment fee of up to ten percent (10%) of any overdue amount (up to a maximum of two hundred dollars ($200.00)), which shall be levied for administration fees, and which shall become immediately due and payable.
17.4 Without prejudice to any other remedies MIEC may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions MIEC may suspend or terminate the provision of Services to the Client. MIEC will not be liable to the Client for any loss or damage the Client suffers because MIEC has exercised its rights under this clause.
17.5 Without prejudice to MIEC’s other remedies at law MIEC shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to MIEC shall, whether or not due for payment, become immediately payable if:
(a) any money payable to MIEC becomes overdue, or in MIEC’s opinion the Client will be unable to make a payment when it falls due;
(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.
18.1 MIEC may cancel any contract to which these terms and conditions apply or cancel provision of the Services at any time before the Services are delivered by giving written notice to the Client. On giving such notice MIEC shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to MIEC for Services already provided. MIEC shall not be liable for any loss or damage whatsoever arising from such cancellation.
18.2 In the event that the Client cancels the Services, the Client shall be liable for any and all loss incurred (whether direct or indirect) by MIEC as a direct result of the cancellation (including, but not limited to, any loss of profits).
18.3 Cancellation of orders for Goods made to the Client’s specifications, non-stocklist items or modified Goods, will definitely not be accepted once an order has been placed.
19. Privacy Act 1993
19.1 The Client authorises MIEC or MIEC’s agent to:
(a) access, collect, retain and use any information about the Client;
(i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Client.
(b) disclose information about the Client, whether collected by MIEC from the Client directly or obtained by MIEC 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.
19.2 Where the Client is an individual the authorities under clause 19.1 are authorities or consents for the purposes of the Privacy Act 1993.
19.3 The Client shall have the right to request MIEC for a copy of the information about the Client retained by MIEC and the right to request MIEC to correct any incorrect information about the Client held by MIEC.
20. Unpaid Seller’s Rights
20.1 Where the Client has left any item with MIEC for inspection, repair, modification, exchange or for MIEC to perform any other service in relation to the item and MIEC has:
(a) deemed it uneconomical to repair the item; and/or
(b) not received or been tendered the whole of any moneys owing to it by the Client; then
(c) MIEC shall have (until all moneys owing to MIEC are paid):
(i) a lien on the item; and
(ii) the right to retain or sell the item, and such sale may be undertaken in accordance with the Uncollected Goods Act 1995, and any other legislation which may be applicable for the sale or disposal of uncollected goods; and
(iii) the right to retain all of the proceeds of the sale of the item in payment of the Price and any interest due to MIEC and any costs associated with such sale; and
(iv) where the proceeds of the sale are less than the whole of any moneys owing to MIEC, the Client shall remain liable for the balance, which shall be come immediately due and payable.
20.2 The lien of MIEC shall continue despite the commencement of proceedings, or judgment for any moneys owing to MIEC having been obtained against the Client.
21.1 The failure by MIEC to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect MIEC’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.
21.2 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 Whakatane Court.
21.3 MIEC shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by MIEC of these terms and conditions (alternatively MIEC’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
21.4 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by MIEC nor to withhold payment of any invoice because part of that invoice is in dispute.
21.5 MIEC may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
21.6 The Client agrees that MIEC may amend these terms and conditions at any time. If MIEC makes a change to these terms and conditions, then that change will take effect from the date on which MIEC notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for MIEC to provide Goods to the Client.
21.7 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.
21.8 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.