Terms of service

GENERAL TERMS AND CONDITIONS OF CONTRACT

1.      Contract

These terms and conditions (“Terms and Conditions”) shall form the conditions of the contract (“Contract”) between Maneline Cambridge Limited (“the Company”) and the customer described in the attached application form (“Customer”) for the supply of certain materials, goods and services (“Goods”) to the Customer. The Customer acknowledges that these Terms and Conditions apply to all transactions between the Company and the Customer. All other conditions, descriptions and representations, whether expressed or implied by law, trade custom or otherwise, are expressly excluded from the Contract.

2.      Prices and Quotations

2.1.  Any quotation provided by the Company may be withdrawn at any time by the Company. If not withdrawn it remains open for acceptance for a maximum period of 30 days from the date of quotation, after which it shall be deemed to be withdrawn.

2.2.  Any quotation provided by the Company is based upon rates and conditions applying at the date of the quotation unless otherwise specified. Any variation in exchange rates, costs of labour, transport, freight, insurance, Goods and Services Tax (“GST”) and other taxes or levies imposed by government, costs of materials, and all other expenses incurred or arising due to circumstances beyond the control of the Company between the date of quotation and the date of delivery, shall be to the Customer’s account and shall, together with all such sums that may from time to time become due to the Company in accordance with these Terms and Conditions, be added to the price for the Goods.

2.3.  All prices are exclusive of GST and any costs of delivery. GST and delivery costs shall be payable in addition to the price of the Goods.

3.      Terms of Payment

3.1.  The Customer shall pay all invoices for Goods supplied on or before the 20th of the calendar month following the date of issue of the invoice.

3.2.  Any invoice that is not paid by the payment date will attract penalty interest on any arrears at the rate of 2.5% per calendar month or part thereof, computed from the payment date until the date when such payment together with all interest and any other applicable charges outstanding are paid in full.

3.3.  If the Customer defaults in any payment the Customer shall, in addition to the purchase price and any penalty interest due, pay any additional costs incurred by the Company in obtaining or attempting to obtain payment (including legal and debt collection costs).

3.4.  The Customer authorises the Company to charge the credit card specified in the attached application form for any outstanding arrears for the supply of Goods, penalty interest and any other costs specified above. The Company shall be entitled to apply such charges immediately following the date specified in clause 3.1 of these Terms and Conditions without reference or notification to the Customer.

4.      Delivery

4.1.  If any time for delivery shall be stated in the quotation or order, such time shall be approximate only and shall not be deemed to be an essential part of the Contract.

4.2.  The Company shall not be liable for failure to deliver or for any delay in delivery of Goods occasioned by any cause beyond the Company’s control.

4.3.  Any and all costs of delivery shall be borne by the Customer and where delivery is required by the Customer, it shall be upon the basis that reasonable access to the Customer’s premises is available, and that the Goods are offloaded at the Customer’s risk.

5.      Description and Specification

5.1.  Whilst every effort is made to ensure their accuracy, the description, illustrations and material contained in any catalogue, price list or other descriptive matter supplied by the Company, represents the general nature only of the items described and the Company reserves the right to modify the design of any Goods supplied without notice, provided the Goods are of comparable value, quality and functionality.

6.      Risk and Reservation of Title

6.1.  Risk in the Goods shall pass to the Customer upon delivery of the Goods.

6.2.  Notwithstanding the passing of risk, property and ownership in the Goods shall only pass from the Company to the Customer upon full payment of the purchase price and any other money owing by the Customer to the Company, including any penalty interest or other costs due to the Company as a result of a default in payment by the Customer.

6.3.  Until the Company has been paid the purchase price and any other money owing by the Customer to the Company, the Customer is deemed to act as bailee for the Company in respect of the Goods and:

6.3.1.     The Customer is deemed to hold the Goods, and the products of any manufacture in which the Goods are used, as trustee on behalf of the Company;

6.3.2.     The Customer grants a security interest in the Goods and acknowledges that these terms and conditions constitute a “security agreement” for the purposes of the Personal Properties Securities Act 1999 (“PPSA”) and that the Company may register a financing statement in respect of the same;

6.3.3.     Any proceeds from the sale of the Goods, or the sale of the products of manufacture in which the Goods are used, shall be held in a separate bank account by the Customer on trust for the Company;

6.3.4.     At the Company’s request the Customer shall promptly execute any documents and do anything else required by the Company to ensure that the security interest created under these Terms and Conditions constitutes a first ranking security interest over the Goods. The Customer will also provide the Company with any information that the Company may reasonably require to complete a financing statement and the Customer also agrees that nothing in sections 114(1)(a), 117(1)(c), 133 and 134 of the PPSA shall apply to these terms and conditions. The Customer also agrees that its rights as Debtor under sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA shall not apply to these terms and conditions; and

6.3.5.     The Customer will not allow a security interest to be created or registered over the Goods in priority to the security interest held by the Company.

6.4.  By acceptance of this clause the Customer gives the Company, its agents and employees, leave and licence without the necessity of notice to enter (by force if necessary) on or into any premises where the Goods are or may be located, to remove the Goods, and to dispose of them as it deems fit, without being liable to the Customer or anyone claiming through the Customer.

7.      Warranties and Limitations

7.1.  Where Goods are being supplied for the purposes of a business, the Customer agrees that the Consumer Guarantees Act 1993 (“the Act”) will not apply and the details contained in any quote or order including these Terms and Conditions shall be the only terms and conditions of the Contract and any other conditions and warranties, whether expressed or implied by law, trade, custom or otherwise are expressly excluded.

7.2.  Where the Customer purchases Goods for re-supply, the Customer’s terms of trade must contain an equivalent provision to clause 7.1.

7.3.  Subject to the provisions of clause 7.1, all warranties and other terms are to be read and construed subject to the Act, as applicable. If the Act applies (but not otherwise) the Act shall prevail where warranties, terms, or conditions of these Terms and Conditions are in conflict with or are inconsistent with any provisions of the Act.

7.4.  The Customer shall within seven (7) days of delivery notify the Company of any alleged defect in any of the Goods. The Customer shall afford the Company an opportunity to inspect the Goods within a reasonable time following notice and before any use is made of them. If the Customer fails to comply with these provisions the Goods shall be conclusively presumed to be free from any defect or damage which would be apparent on a reasonable examination of the Goods and the Customer shall be deemed to have accepted the Goods.

7.5.  The liability of the Company in respect of all claims for loss, damage or injury arising from the Company’s non-compliance with its obligations under these Terms and Conditions or from any act or omission of the Company is limited, in each case, to the lesser of:

7.5.1.     replacement or repair of the affected Goods;

7.5.2.     payment of the actual cost of replacing or repairing the affected Goods; or

7.5.3.     the price of the affected Goods.

7.6.  The Company shall not be liable for any consequential, indirect or special damages (including without limitation loss of profits or savings or for any indirect or consequential loss or damage), however caused, arising out of or in connection with the supply of the Goods, except as set out above.

7.7.  No action arising out of the supply of the Goods by the Company, regardless of form, may be brought more than seven (7) days after the Customer becomes aware, or reasonably ought to have become aware, of the circumstances giving rise thereto.

8.      Returns and Cancellations

8.1.  Other than perishable items, Goods of a type held by the Company as normal stock items (excluding, by way of example, Goods made to order) may, if the Company agrees, be returned by the Customer for credit by quoting the date of delivery and the delivery docket numbers or invoice number provided that:

8.1.1.     The Company may charge a handling fee of 25% of the purchase price or net invoice value for those Goods, excluding delivery charges;

8.1.2.     The Company may charge the Customer if the Company collects those Goods from the Customer;

8.1.3.     Those Goods are in their original condition and packaging, and are undamaged, unused and in a saleable condition; and

8.1.4.     Those Goods are returned within fourteen (14) days of receipt by the Customer.

8.2.  The Customer is not entitled to cancel an order without the written agreement of the Company where:

8.2.1.     manufacture of made to order Goods has commenced; and/or

8.2.2.     such order comprises Goods manufactured by a third party.

8.2.3.     In the case of made-to-order Goods:

8.2.4.     The Company may require the Customer to make a full upfront payment for the Goods or to pay a substantial deposit before the Company commences manufacture of the Goods, and the Customer is liable to pay for the full amount of Goods ordered, whether or not the Customer takes delivery of all such Goods; and

8.2.5.     The Customer shall pay all costs associated with any additional production runs where the Customer requires more Goods than those first ordered.

9.      Agreement to Mortgage

9.1.  Where the Customer has failed to pay any portion of the price (or any additional charges incurred) for the Goods on the due date for payment, then the Customer will forthwith and upon demand give and execute in favour of the Company a good and registrable mortgage instrument over the Customer’s land to secure payment, the said mortgage to be in the form of the Auckland District Law Society Mortgage (All Obligations). To give effect to this clause, the Customer pledges the certificate(s) of title to the Customer’s land with payment of the sums outstanding and authorises the Company to lodge and maintain a caveat against the title(s) to the said land. The Company will give the Customer five (5) working days to remedy any default before demanding a mortgage instrument aforesaid.

10. Additions and Alterations

10.1.                   Any addition or variation to these Terms and Conditions shall be in writing signed by both parties.

11. Waiver

11.1.                   All the original rights, powers, exemptions and remedies of the Company shall remain in full force notwithstanding any neglect, forbearance or delay in the enforcement thereof. The Company shall not be deemed to have waived any condition unless such waiver is in writing and signed by the managing director of the Company and any such waiver (unless the contrary shall be expressly stated) shall apply to operate only in the particular transaction or matter in respect of which it was given.

12. Force Majeure

12.1.                   The Company shall not be liable to the Purchaser for any loss by the Purchaser caused by the Company’s failure to observe these Terms and Conditions, or of any delay or failure to perform its obligations, if such failure or delay is occasioned by any cause beyond the Company’s reasonable control and, without limiting the generality of the foregoing, such causes include war, fires, floods, inclement weather, strikes, interruptions in electricity supply or internet access, pandemic, lock outs, delays in transport, breakdowns in machinery, restrictions or prohibitions by any government or semi-government authorities or embargoes.

13. Severability

13.1.                   If any provision of these Terms and Conditions is held invalid, unenforceable or illegal for any reason, but is capable of being read down, it shall be read down to the extent necessary to render it binding and enforceable. If it is not capable of being so read down, then such word or words or, if required, the whole provision shall thereupon be severed and the remainder of these Terms and Conditions shall otherwise remain in force.

14. Interpretation and General

14.1.                   This Contract is entered into on behalf of and is intended to bind and be for the benefit of the Company and the Company’s successors and assigns. The provisions of this Contract, including this one, shall be given a large and liberal interpretation in favour of the Company.

14.2.                   The term “Customer” includes the Customer and its successors and assigns.

14.3.                   The terms “Company” and “Customer” also refer to any person, firm, company or corporate entity associated with either party. Where the Customer comprises more than one person carrying on business in partnership, each and every individual partner is and shall be jointly and severally liable to the Company in respect of all or any indebtedness or liability of the Customer which may arise. Where the Customer is a limited liability company or other corporation, each of the officers thereof jointly and severally guarantees the due and punctual payment of all monies and performance of all obligations due by the Customer arising out of the contract. Where the Customer is a trust, the signatory to this Contract personally guarantees the due and punctual payment of all monies and performance of all obligations due by the Customer arising out of the Contract.

14.4.                   The headings are used as a matter of convenience only and shall not affect the interpretation of each clause.