Terms of Trade

Version 1.0 as at 1 January 2017 (for a PDF version of this page click here).

TERMS AND CONDITIONS OF TRADE OF MC2 LIMITED (“THE COMPANY”)

1. The  Customer   confirms   and  accepts   that   any supplies made by the Company to the Customer shall be made upon the Terms and Conditions of Trade contained herein, as may be amended by notice in writing from time to time by the Company, and that those Terms and Conditions of Trade have been read and understood by or for and on behalf of the Customer.

2. The Customer agrees that pending payment in full for all and any Goods supplied to the Customer pursuant to these Terms and Conditions of Trade (“the Goods”), the Customer holds the Goods as fiduciary bailee and agent for the Company, and the Company  shall retain ownership  of the Goods  or any proceeds of on-sale of the Goods.

3.1 The Customer  will grant a security interest in the Goods supplied, in respect of which the Company may register a financing statement pursuant to the Personal Property Securities Act 1999 (“the PPSA”). In the event that payment for the Goods is not made on time, the Company may repossess and sell such Goods and/or any other Goods which have been made  by  using  the  Goods  supplied,  in  order  to satisfy any outstanding liability.

3.2 The Customer will, upon request by the Company, execute all documents and do all things necessary to  enable  the  Company  to  create  the  security interest pursuant hereto.

3.3 The Customer shall:

(a) Immediately notify the Company in writing of any change in name;

(b) Provide any  information  the  Company reasonably requires to complete a financing change statement;

(c) Waive any  right  to  receive  a  copy  of  a verification statement under the PPSA.

3.4 The  Customer agrees that these Terms and Conditions of Trade constitute a Security Agreement for the purposes of the PPSA, and that they have received a copy of this Agreement.

4.5 The Customer agrees:

(a) that if, at any relevant time, the Company did not have priority over all other secured parties in relation to the Goods or any other personal property relating to this Agreement, then the Company  shall,  for  the purposes  of  Section 109(1)  of  the  PPSA  be  deemed  to  have contracted out of that Section;

(b) that nothing in Sections 114(1)(a) (to receive notice of sale of goods), 116 (to receive a statement of account), 119 (to recover any surplus), 120(2) (to receive notice of proposal to take goods), 133 (to reinstate Security Agreement) and 134 (limit on reinstatement) of the PPSA will apply to this Agreement or the Company’s security interest;

(c) to waive all its rights under Sections 121 (to object to proposal), 125 (damage to goods on removing accession), 129 (notice of removal of accession),  131  (court  order  preventing removal of accession) and 132 (redemption of collateral) of the PPSA; and

(d) to waive its right to receive a copy of the Verification  Statement  confirming  registration of a Financing Statement or Financing Change Statement relating to the Company’s security interest.

3.6 The Customer shall not permit any security interest (other  than  the  Company’s  security  interest)  to attach to the goods.

4.1 The  provisions  of  the  Consumer  Guarantees  Act

1993 shall not apply to any supply of Goods by the Company to the Customer for business purposes in terms of Section 2 and/or Section 43 of the Consumer Guarantees Act 1993.

4.2 The Company does not provide any guarantees or warranties EXCEPT as expressly confirmed by the Company in writing.

5.1 Personal information of whatsoever nature and in respect of whomsoever collected by or held by the Company (whether by virtue of this application or otherwise) is provided and may be held, used and disclosed to enable the Company to process this or any other application, to ascertain at any time the credit worthiness of the Customer, and to obtain (at any  time)  credit  reports,  character  references  or credit statements to administer the Customer’s trade account with the Company, to enable the Company to  notify  and  credit  or  reference  agent  of applications for credit, or in the event of any default on   the   part   of   the   Customer,   to   enable   the Company, to provide to the Customer information concerning products and services, to enable the Company to sell or assign for any purposes any obligation/debt the Customer has to the Company, and to enable the Company to communicate with the Customer/the Guarantor(s).

5.2 The Customer, and the Guarantor(s), authorise the Company to obtain, at any time from any person or entity,  whatsoever  any  information  the  Company may   require   to   process   and/or   accept   and/or maintain  any  credit  application  or  trade  account which the Customer may make or have with the Company or to perform or complete any of the other purposes for which information has been provided to the Company by the Customer/the Guarantor(s). The Customer and/or the Guarantor(s) hereby authorise   any   such   person   to  release   to   the Company any information which that person holds concerning the Customer/the Guarantor(s).

6. For  the  purposes  of  this  application  and  these Terms and Conditions of Trade, the “Goods” shall include any goods, services, information, designs, printed or electronic material provided to the Customer by the Company of whatsoever nature.

7. All prices quoted are exclusive of, but subject to, Goods and Services Tax (“GST”).  Goods supplied will be charged at the prices applicable at the time of dispatch of Goods.    Prices quoted in the Company’s price list are the latest available prices at the time of printing of the price list, but are subject to amendment without prior notice by the Company, and at the Company’s sole discretion.

8.1 The Customer shall make payment of the purchase price, plus GST indicated on any invoice, order form, or other similar documentation issued by the Company, on or before the 20th  day of the month immediately following the date of such invoice.

8.2 In the event that payment is not made, in full, in accordance   with  the  provisions   of   clause  9.1, interest   shall   accrue   and   be   payable   by   the Customer to the Company at a rate equivalent to the Company’s bank’s unsecured commercial overdraft facility PLUS a margin of 4% per annum (or a rate equivalent to the rate payable on Judgments obtained in the District Courts of New Zealand as may from time to time be provided for by statute), such interest accruing at a daily rate from and including the date immediately following the due date for payment, until and including the date upon which all outstanding amounts are paid (including interest).

8.3 Payments by the Customer shall be apportioned by the  Company  to  outstanding  accounts  in  such amounts and in such order as the Company may determine in its sole discretion.

9.1 Where the Customer wishes to return any Goods for any reason, the Customer must apply in writing to the Company within 14 days from the date of delivery, for the Company’s written consent to the return  of  the Goods,  failing  which,  the Customer shall be conclusively deemed to have accepted the Goods and the Company shall not incur any subsequent liability whatsoever.

9.2 If  the  Company  gives  its  written  consent  for  the return of Goods, the Goods shall be returned TOGETHER WITH a credit claim, which quotes:  the Company’s invoice number, the date of delivery of those Goods, the name of the Company representative who approved the return and the reason for the return.

9.3 The Company may, at its own discretion entirely:

(a) Give   credit   for   Goods   which   have   been correctly returned, in the same condition and packaging in which they were dispatched (subject  to  a  charge  for  reasonable  costs where Goods were ordered incorrectly).

(b) Subject to any express warranty given by the Company, repair any damaged or defective Goods or make a reasonable allowance on the purchase of replacement Goods.

9.4 In the event that the above provisions are not strictly complied with, the Company will return such Goods to the Customer at the Customer’s expense.

10.1 Notwithstanding any other provision of these Terms and  Conditions  of  Trade,  or  the  law,  risk  in  the Goods   shall   pass   from   the   Company   to   the Customer when the Goods leave the Company’s premises.

10.2 Property and title in the Goods (including where the Goods have been incorporated into other goods but remain distinct and separately identifiable) shall remain with the Company and shall only pass from the Company to the Customer when the Customer / the Guarantor(s) have discharged all outstanding indebtedness to the Company.

10.3 If the Customer sells Goods before discharging its indebtedness to the Company, the Customer will be deemed to have done so as agent for the Company and the proceeds of such sale shall be the property of the Company.   The Customer shall hold the proceeds on Trust for the Company in a separate account and repay such amount immediately if required by the Company.

10.4 The  Customer  will  not  change  the  physical appearance of the Goods, nor shall the customer incorporate the Goods into or with other Goods, without the prior written consent of the Company.

11.1 In the event of any default by the Customer of these Terms and Conditions of Trade, in addition to any other right or remedy available to the Company pursuant to these Terms and Conditions of Trade, or at general law, the Company shall be entitled to enter on and into any premises or property occupied by  the  Customer  or  any  property  on  which  the Goods are stored or held, to inspect, search for, and remove the Goods supplied, and the Company shall not be liable to the Customer or any third party for any  damage  of  any  kind  whatsoever  which  may result  from  the  exercise  of  its  rights  under  this clause.   The Company shall be entitled (but not obliged) to resell the Goods on commercially reasonable terms and apply the proceeds derived in or towards the payment of any amount due and payable by the Customer to the Company, and all costs and expenses of or incurred by the Company as a result of and incidental to such action.

11.2 Where  the  Customer  is  in  default,  the  Company may,  in  addition  to  any  other  rights  contained  in these Terms and Conditions of Trade or at general law, appoint a receiver in respect of the Goods.

11.3 The Customer shall pay to the Company all and any costs incurred by the Company in the actual or attempted enforcement of these Terms and Conditions of Trade (including but not limited to debt collection costs and legal costs and disbursements on a solicitor/client basis).

12. The  liability  of  the  Company  to  the  Customer  in respect of the Goods shall be limited, at all times, to the purchase price of the Goods in respect of which such liability  arises  and  no  warranty  or  condition shall  be  implied  against  the  Company  by  any statute, at common law, or otherwise.

13. The Company shall not be liable for any delay in production or delivery of Goods directly or indirectly caused by acts of God, fire, riot, war, acts of terrorism, embargo, strike, labour dispute, theft, delays in delivery by sub-supplier, action or interference by any government or other authority or any other occurrence beyond the reasonable control of the Company.
14. This Agreement shall be governed by and construed in  all  respects  in  accordance  with  New  Zealand Law.

15. If any provision hereof is held to be invalid or unenforceable, the invalidity or unenforceability shall be deemed eliminated or modified to the minimum possible extent to make the remainder of these Terms and Conditions of Trade enforceable.

16. Failure by the Company to insist upon strict performance by the Customer of any of these Terms and Conditions of Trade shall not be a waiver of any rights of the Company on any subsequent occasion.