1 Terms of contract
Any Goods supplied by us to you shall be subject to these Terms unless we agree in writing to change them. If you accept Goods from us, that action by you will be deemed to be acceptance of these Terms, despite anything that may be stated to the contrary in your enquiries or your order.
2.1 The price for Goods will be either as quoted to you in writing or, if no written quotation is provided, as set out in our standard price list applying at the time of delivery.
2.2 Quotations will remain valid for a period of 30 days. We may withdraw a quotation before an order is accepted by us in accordance with clause 4.
2.3 Unless otherwise agreed in writing or as set out in a relevant quotation, all prices are exclusive of transport, freight, insurances, duties, levies, taxes, packing, crating or storage recovery, and other rates and charges (including bank charges) in respect of the Goods. These will be charged at the rates applying at the time of delivery.
2.4 Prices quoted are based on materials being available when required, and any increase due to necessary substitution of other materials will be charged to you. We will notify you of any such price increase.
3.1 Unless we have agreed in writing to extend credit to you, you must pay for Goods in full before delivery.
3.2 Where we have agreed in writing to extend credit to you, you must pay for Goods in full, without deduction or set off, within the timeframe specified in our quotation or invoice, or if no timeframe is stated, within 7 days of the date of the invoice. Your payment is made only when funds have fully cleared through the bank system into our bank account. At our sole discretion we may require the payment of a deposit before delivery of the Goods.
3.3 If full payment for the Goods is not made by the due date, then without prejudice to any other rights or remedies available to us:
(a) we may cancel or suspend the delivery of further Goods;
(b) we may charge interest on overdue monies on a daily basis at 5% per annum above the current overdraft rate charged by our bankers at that time, and interest shall continue to accrue both before and after judgment;
(c) you will be responsible for all costs (including legal costs on a solicitor/client basis) incurred by us in recovering such monies;
(d) we may supply information about the default for publication on any credit agency database; and
(e) where we have agreed in writing to extend credit to you, we may decline to extend further credit to you and require payment in cash before delivery of any further Goods;
(f) any discount offered to you will be deemed to be withdrawn, and you will be liable for the full invoice price.
3.4 We may accept and apply payments from you in respect of any indebtedness, and we will not be bound by any conditions or qualifications attaching to the payments.
3.5 Where we have agreed to extend credit to you, we may, from time to time at our discretion, vary your credit limit with us or close inactive accounts. If a purchase of Goods would exceed your current credit limit, we may require payment in cash of the excess before delivery of the Goods.
3.6 Despite clauses 3.1 and 3.2 above or any agreement to the contrary, all payments shall become immediately due and payable if we reasonably believe that the information which you have given us in your credit application is not correct or no longer correct, or if you breach these Terms or default under any agreement with us, become insolvent or commit any act of bankruptcy, a receiver, liquidator or statutory manager is appointed over any of your assets or undertaking or you make or attempt to make an arrangement or composition with your creditors.
An order shall become binding upon us only when we accept the order in writing.
5.1 Ownership in the Goods shall not pass to you at the time of delivery, but will remain with us until we have received full payment, in cash or cleared funds, of all monies owing by you to us.
5.2 Until all such monies have been paid:
(a) you will keep the Goods separate from any other goods in your possession, and properly stored, protected and insured, and identified as our property;
(b) all sums received from any insurance claim made in respect of loss of or damage to the Goods shall be treated as if they were proceeds of sale and held by you on the same terms as those set out in clause 5.2(d) below, and you will also hold on trust for us and, if required by us, forthwith assign to us the benefit of any insurance claim made in respect of the Goods;
(c) if the Goods are mixed with, or incorporated or processed by you into other goods, those other goods shall be separately stored and marked so as to be identifiable as being made from or with the Goods and you will notify us of the location of such goods;
(d) we may, at any time, require you to deliver the Goods (which have not been resold) to us and, if you fail to do so forthwith, our employees and agents may enter any premises where the Goods might be stored and recover them, and you agree to indemnify us, on demand, against any costs, loss or liability incurred by us in our exercise of this right (including legal costs on a full indemnity basis). Our rights under this clause are in addition to and not in derogation from our rights under Part 9 of the PPSA 1999 save to the extent that there is any inconsistency between our rights under this clause 5.2(e) and any of Part 9 of the PPSA 1999 this clause prevails; and
(e) you will keep records of any Goods owned by us.
6 Risk and delivery
6.1 Delivery of the Goods will take place when they are received by a carrier for delivery to you, or the time they are received by you or your agent, whichever is earlier. When you ask us to deliver Goods directly to another person, that person takes possession of the Goods for you as your agent.
6.2 We will make every effort to ensure delivery of Goods is on time. However, we shall not be liable to you for any failure to deliver on a specified date or within a specified period, however that failure was caused. If you wish to postpone the requested date for delivery of Goods ordered, you must notify us in writing. Without limitation to the earlier provisions of this clause 6.2, any alteration to the requested delivery date shall be deemed to be accepted by us when we re-acknowledge your order. You shall be responsible for meeting our reasonable costs for storage of the Goods until the new delivery date; such storage costs to be charged at the rates applicable at the time you notify us of your request to delay delivery.
6.3 Without limiting clause 6.2, we shall not be liable for the failure to deliver or complete any order where such failure is occasioned by Act of God, fire, accident, war, strike, lock-out, shortage of labour, lack of skilled labour, breakdown of plant, non-delivery of raw materials, difficulty in procuring components or materials, delays by suppliers or sub-contractors, delays in transit, delays by you, legislative governmental or other prohibitions or restrictions, pandemic or epidemic or any other events of any kind whatsoever which are beyond our control.
6.4 Despite clause 5, risk in respect of the Goods shall pass to you on delivery in accordance with clause 6.1. You are responsible for insurance of the Goods from that time.
6.5 Without limiting the previous provisions of this clause 6, all claims for shortages or delivery damage must be made to the carrier and us within 48 hours after delivery. No claim will be accepted if you have signed a delivery docket or otherwise confirmed that the Goods were received in good condition.
7 Returns and cancellation
7.1 Goods may be returned for credit only if we have agreed in writing, and they are received by us in the same condition as they were delivered to you and you comply with any returns procedures notified by us.
7.2 If we agree that Goods can be returned a service charge at our current rate, any freight charges, and any deduction for damage caused by you may be deducted from the amount credited to you for the returned Goods. We will be entitled to inspect the condition of the Goods upon collection or upon arrival of the Goods. Our assessment of the condition of the Goods will be conclusive. No responsibility is accepted by us for items lost or damaged in transit during return to us.
7.3 You may not cancel an order for Goods, wholly or partly, once it has been accepted by us unless we have agreed in writing. As a condition of giving our consent, we may require reimbursement of any costs (including materials, handling fees and labour) incurred by us in connection with the order up to the date of our consent.
7.4 In addition to our rights under clause 3.3(a), we may cancel or suspend an order for Goods, wholly or partly and without liability to you, in any of the circumstances set out in clause 3.6 or if fulfilling the order becomes impractical or uneconomic due to any cause beyond our control.
8 Consumer Guarantees Act 1993 and Fair Trading Act 1986
8.1 If the CGA applies, these Terms shall be read subject to your rights under the CGA and shall apply to the extent not otherwise expressly excluded by such legislation.
8.2 Where you are acquiring the Goods for the purposes of a business (as provided in sections 2 and 43 of the CGA):(a) the CGA shall not apply; and
(b) if, and to the extent that, it is permissible to contract out of the FTA, you agree that nothing in sections 9, 12A, 13 and 14(1) of the FTA shall apply.
8.3 Where clause 8.2(a) above applies and you are acquiring the Goods for the purposes of resale, your terms of trade applying to the resale (and, if your customers acquire the Goods for the purposes of resale, their terms of trade and the terms of trade of each other person in your distribution chain) must include a provision having the same effect as that clause. You agree to indemnify us, on demand, against any liability under the CGA as a result of any failure by you, your customers or any other person in your distribution chain to include such a provision.
8.4 We do not undertake that repair facilities and parts will be available for the Goods and, accordingly, section 12 of the CGA shall not apply.
9 Warranties and liability
9.1 We warrant that the Goods will comply with the conditions of the Warranty provided to you, taking into account the Goods supplied and the conditions of the site where the Goods will be installed. Your remedy for a breach of the Warranty will be as outlined in the terms of the Warranty.
9.2 To the fullest extent permitted by law:
(a) our liability under these Terms is in substitution for, and to the exclusion of, all other warranties, representations, conditions or obligations imposed or implied by law, statute or otherwise in relation to the Goods (including, without limitation, under the CGA); and
(b) all liability for any other direct or indirect cost, loss, liability or damage (including special or consequential loss or loss of profits) of any kind is expressly excluded.
10 Personal Property Securities Act 1999
10.1 You acknowledge and agree that, by accepting these Terms, you grant us a security interest over the Goods and their proceeds (by virtue of the retention of title in clause 5 above).
10.2 You undertake to:
(a) do all acts and provide us on request all information we require to register a financing statement or financing change statement on the Personal Property Securities Register; and
(b) advise us immediately in writing of any proposed change in your name or other details on the Personal Property Securities Register.
(a) waive your right to receive a verification statement in respect of any financing statement or financing change statement relating to the security interest;
(b) waive your rights and, with our agreement, contract out of your rights undersections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA 1999;
(c) agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA 1999 shall apply to these Terms and, with our agreement, contract out of such sections.
10.4 Unless the context otherwise requires, the terms and expressions used in this clause 10 have the meanings given to them in, or by virtue of, the PPSA 1999.
11 Privacy Act 2020
11.1 You and any Guarantor (if relevant) authorise us to collect and hold personal information from any source we consider appropriate to be used for identification, credit, administration (including (without limitation) assessing creditworthiness and obtaining creditor insurance), service and marketing purposes. You and any Guarantor (if relevant) further authorise us to disclose personal information held by us for these purposes to any other person.
11.2 If any personal information required by us is not provided, we may not be able to provide the requested credit and/or supply Goods to you.
11.3 Where used in this clause 11, the word “you” includes your directors and shareholders.
12 Intellectual property
12.1 Neither we nor our suppliers transfer to you any right, title or interest in any copyright, trade marks, patents or other intellectual property rights in or relating to the Goods.
12.2 You warrant that any designs, drawings or specifications which you provide to us will not infringe any intellectual property rights of any third party, and you agree to indemnify us, on demand, against any liability we may suffer as a result of our use of those designs, drawings and specifications.
13.1 The Guarantor/s jointly and severally unconditionally guarantee to us the due and punctual payment by you of all outstanding monies including but not limited to the account balance, interest and collection costs owing by you to us.
13.2 The liability of the Guarantor/s shall not be affected by the granting of time, credit or any indulgence or other concession to you or to any person giving any similar guarantee. This guarantee is to be a continuing guarantee and shall remain in force until released in writing by us.
13.3 We may as regards a Guarantor/s determine from time to time not to enforce the guarantee and may from time to time make any arrangement or compromise with the Guarantor/s without such compromise affecting in any way the obligations of Co- Guarantor/s.
13.4 This guarantee shall apply to the final balance owing by you to us and until all the monies guaranteed have been paid in full we shall have priority over the Guarantor/s in respect of any bankruptcy or liquidation by you.
13.5 If any payment made to us by you or on your behalf is avoided by law such payment shall not be deemed to have discharged or affected the liability of the Guarantor/s.
13.6 This guarantee is in addition to and not in substitution for any other security or right which we may have in respect to your indebtedness and may be enforced against the Guarantor/s without first having recourse to any such securities or rights and without taking steps or proceedings against you.
13.7 As between the Guarantor/s and us the liability of the Guarantor/s shall be deemed to be that of principal debtor.
13.8 As a separate and independent provision the Guarantor/s hereby agrees to keep us fully indemnified against all damages, losses, costs and expenses arising from any failure of you to pay the monies hereby granted.
14 General terms
14.1 Amendments: We may amend these Terms from time to time by publishing amended Terms on our Website.
14.2 Waiver: No delay or failure by us to exercise our rights under these Terms operates as a waiver of those rights. A partial exercise of those rights does not prevent their further exercise in the future.
14.3 Severability: If a court decides that part of these Terms is unenforceable, the part concerned shall be deleted from the rest of these Terms, which will then continue in force.
14.4 Law: These Terms will be interpreted in accordance with and governed by the laws of New Zealand, and the New Zealand Courts will have non-exclusive jurisdiction in respect of all matters between us.
14.5 United Nations Convention for Sale of Goods: The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the sale and purchase of the Goods.
15 Defined terms and interpretation
15.1 In these Terms, the following words have the following special meanings: “CGA” means the Consumer Guarantees Act 1993;
“FTA” means the Fair Trading Act 1986;
“Goods” means (i) all handrails, balustrades, barriers and other goods supplied by us to you at any time, including spare parts, and includes any goods described by item or kind on any relevant order form, packing slip or invoice, on the basis that each such order form, packing slip or invoice shall be deemed to be incorporated in and form part of these Terms and (ii), except where the context otherwise requires, all services supplied by us to you at any time, whether in conjunction with the supply of goods or otherwise;
“Guarantor” means anyone named as a guarantor on your credit application;
“our website” means the Moddex website from time to time published at www.moddex.com;
“PPSA 1999” means the Personal Property Securities Act 1999;
“Warranty” means the warranty applicable to the relevant Goods provided to you (as amended from time to time);
“we”, “our”, “us” means Moddex NZ Limited Partnership, and its successors and assigns; and
“you” means the customer named in the attached credit application order form or in an invoice for Goods.
15.2 For convenience, these Terms have been grouped under different headings, but the headings do not affect the meaning of these Terms.
15.3 In these Terms references to any law include any changes to that law which are in force from time to time.