MSME LIMITED TERMS AND CONDITION OF TRADE
1.1 “MSME LIMITED” shall mean Mahurangi Sheet Metal and Engineering or any agents or employees thereof.
1.2 “Customer” shall mean the Customer, any person acting on behalf of and with the authority of the Customer, or any person purchasing Products and Services from MSME LIMITED.
1.3 “Products” shall mean:
1.3.1 All Products supplied by MSME LIMITED to the Customer and
1.3.2 All inventory of the Customer that is supplied by MSME LIMITED and
1.3.3 All Products supplied by MSME LIMITED and further identified in any invoice issued by MSME LIMITED to the Customer, which invoices are deemed to be incorporated into and form part of this agreement and
1.3.4 All Products that are marked as having been supplied by MSME LIMITED or that are stored by the Customer in a manner that enables them to be identified as having been supplied by MSME LIMITED and
1.3.5 All of the Customer’s present and after-acquired Products that MSME LIMITED has performed work on or to in which goods or materials supplied or financed by MSME LIMITED have been attached or incorporated.
1.3.6 The above descriptions may overlap but each is independent of and does not limit the others.
1.4 “Products and Services” shall mean all Products, goods, services and advice provided by MSME LIMITED to the Customer and shall include without limitation all electrical, lighting, heating and security Products and Services and all charges for labour, hire charges, insurance charges or any fee or charge associated with the supply of Products and Services by MSME LIMITED to the Customer.
1.5 “Price” shall mean the cost of the Products and Services as agreed between MSME LIMITED and the Customer and includes all disbursements e.g. charges MSME LIMITED
pay to others on the Customer’s behalf subject to clause 4 of this contract.
2.1 Any instructions received by MSME LIMITED from a Customer for the supply of Products and Services shall constitute a binding contract and acceptance of the terms and conditions contained herein.
- COLLECTION AND USE OF INFORMATION
3.1 The Customer authorises MSME LIMITED to collect, retain and use any information about the Customer, for the purposes of assessing the Customer’s credit worthiness, enforcing any rights under this contract, or marketing any Products and Services provided by MSME LIMITED to any other party.
3.2 The Customer authorises MSME LIMITED to disclose any information obtained to any person for the purposes set out in clause 3.1.
3.3 Where the Customer is a natural person the authorities under clause 3.1 and 3.2 are authorities or consents for the purposes of the Privacy Act 1993.
4.1 Where no Price is stated in writing or agreed to orally the Products and Services shall be deemed to be sold at the current amount as such Products and Services are sold by MSME LIMITED at the time of the contract.
4.2 The Price may be increased by the amount of any reasonable increase in the cost of supply of the Product and Service that is beyond the control of MSME LIMITED between the date of the contract and delivery of the Products and Services.
5.1 Payment for Products and Services shall be made in full by the 20th of the month following the date of the invoice.
5.2 Interest may be charged on any amount owing after the due date at the rate of 2.5% per month or part month
5.3 Any expenses, disbursements and legal costs incurred by MSME LIMITED in the enforcement of any rights contained in this contract shall be paid by the Customer, including any reasonable solicitors fees or debt collection agency fees.
5.4 Receipt of a cheque, bill of exchange or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
5.5 If the Customer fails to make payment on the due date then without prejudice to any of MSME LIMITED other rights MSME LIMITED may suspend or cancel deliveries of any other Products and Services to the Customer.
6.1 No quotation given by MSME LIMITED for Products and Services shall be valid unless it is recorded in writing and is signed for and on behalf of MSME LIMITED.
6.2 Where a quotation is given by MSME LIMITED for Products and Services:
6.2.1 Unless otherwise agreed the quotation shall be valid for thirty (30) days from the date of issue and
6.2.2 The quotation shall be exclusive of goods and services tax unless specifically stated to the contrary.
6.2.3 MSME LIMITED reserves the right to alter the quotation at any time because of circumstances beyond its control.
6.3 Where Products and Services are required in addition to the quotation the Customer agrees to pay for the additional cost of such Products and Services.
7.1 The Products and Services remain at MSME LIMITED risk until delivery to the Customer.
7.2 Delivery of Products and Services shall be deemed complete when MSME LIMITED gives possession of the Products and Services directly to the Customer or possession to the Customer or possession of the products and services is given to a carrier, courier, or other bailee for purposes of transmission to the Customer.
- TITLE AND SECURITY (PERSONAL PROPERTY SECURITY ACT 1999)
8.1 Title in any Products and Services supplied by MSME LIMITED passes to the Customer only when the Customer has made payment in full for all Products and Services provided by MSME LIMITED and of all other sums due to MSME LIMITED by the Customer on any account whatsoever. Until all sums due to MSME LIMITED by the Customer have been paid in full, MSME LIMITED has a security interest in all Products and Services.
8.2 If the Products and Services are attached, fixed or incorporated into any property of the Customer, by the way of any manufacturing or assembly process by the Customer or any third party, title in the Products and Services shall remain with MSME LIMITED until the Customer has made payment for all Products and Services and where those Products and Services are mixed with other property so as to be part of a constituent of any Products and Services, title to these new Products and Services shall be deemed to be assigned to MSME LIMITED as security for the full satisfaction by the Customer of the full amount owing between MSME LIMITED and the Customer.
8.3 The Customer gives irrevocable authority to MSME LIMITED to enter any premises occupied by the Customer or on which Products and Services are situated at any reasonable time after default by the Customer or before default if MSME LIMITED believes a default is likely and to remove and repossess any Products and Services and any other property to which Products and Services are attached or in which Products and Services are incorporated. MSME LIMITED shall not be liable for any costs, damages, expenses or losses incurred by the Customer or any third party as a result of this action, nor liable in contract or in tort otherwise in any way whatsoever unless by statute such liability cannot be excluded. MSME LIMITED may either resell any repossessed Products and Services and credit the Customer’s account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs) or may retain any repossessed Products and Services and credit the Customer’s account with the invoice value thereof less such sum as MSME LIMITED reasonable determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.
8.4 When Products and Services are retained by MSME LIMITED pursuant to clause 8.3 the Customer waives the right to receive notice under s.120 of the Personal Property Securities Act 1999 (“PPSA”) and to object under s.121 of the PPSA.
8.5 The Customer:
(a) Agrees that nothing in sections 114 (1)(a) or 117(1)(c), 133 and 134 of the PPSA will apply to this agreement, or the security under this agreement.
(b) Waives the Customer’s rights contained in section 116, 119, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
The following shall constitute defaults by the Customer:
8.5.1 Non Payment of any sum by the due date.
8.5.2 The Customer intimates that it will not pay any sum by the due date.
8.5.3 Any Products and Services are seized by any other creditor of the Customer or any other intimates that it intends to seize Products and Services.
8.5.4 Any Products and Services in the possession of the Customer are materially damaged while any sum due from the Customer to MSME LIMITED remains unpaid.
8.5.5 The Customer is bankrupted or put into liquidation or a receiver is appointed to any of the Customer’s assets or a landlord distrains against any of the Customer’s assets.
8.5.6 A court judgement is entered against the Customer and remains unsatisfied for seven (7) days.
8.5.7 Any material adverse change in the financial position of the Customer.
8.5.8 The Customer changes or proposes to change its name without first notifying MSME LIMITED of the new name not less than 7 days before the change takes effect.
8.6 Where the company has the right in addition to those in Part 9 of the PPSA, the Buyer agrees that those rights shall continue to apply and in particular will not be limited by section 109 of the PPSA.
- SECURITY INTEREST FOR SERVICE PROVIDERS
9.1 The Customer gives MSME LIMITED a security interest in all of the Customer’s present and after acquired property that MSME LIMITED has performed services on or to or in which or materials supplied or financed by MSME LIMITED have been attached or incorporated.
9.2 On the request of MSME LIMITED the Customer shall promptly execute any documents and do anything else required by MSME LIMITED to ensure that the security interest created under this Agreement constitutes a first ranking perfected security interest over the property and their proceeds including providing any information MSME LIMITED reasonably requires to complete financing statement of financing change statement. The Customer waives any right to receive a copy of a verification statement under the Act.
9.3 The Customer will pay to MSME LIMITED all costs, expenses and other charges incurred, expended or payable by MSME LIMITED in relation to the filing of a financing statement or a charge statement in connection with these terms and conditions.
9.4 The Customer hereby grants their express consent to MSME LIMITED to register a financing statement in this respect on the Personal Property Security Register pursuant to the Personal Property Securities Act 1999 (“The Act”)
- PAYMENT ALLOCATION
10.1 MSME LIMITED may in its discretion allocate any payment received from the Customer towards any invoice that MSME LIMITED determines and may do so at the time of receipt or at any time afterwards and on default by the Customer may reallocated any payments previously received and allocated. In the absence of any payment allocation by MSME LIMITED, payment shall be deemed to be allocated in such manner as preserves the maximum value of MSME LIMITED purchase money security interest in the Products and Services.
11.1 The Customer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon MSME LIMITED which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed in MSME LIMITED, liability shall, where it is allowed, be excluded or if not able to be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.
11.2 Except as otherwise provided by clause 11.1 MSME LIMITED shall not be liable for:
11.2.1 Any loss or damage of any kind whatsoever, arising from the supply or Products and Services by MSME LIMITED to the Customer including consequential loss whether suffered or incurred by the Customer or another person and whether in contact or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Product and Services provided by MSME LIMITED to the Customer.
11.2.2 The Customer shall indemnify MSME LIMITED against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing or this clause whether caused or arising as a result of the negligence of MSME LIMITED or otherwise, brought by any person in connection with any matter, act, omission or error by MSME LIMITED its agents or employees in connection with the Products and Services.
12.1 Manufacturer’s warranty applies where applicable.
12.2 Any warranty that MSME LIMITED provide to the Customer will also form part of these terms and conditions of trade.
12.3 No representation, undertaking or warranty made by MSME LIMITED or any agent or representative to the Customer shall be of any effect or apply to any contract between MSME LIMITED and the Customer unless recorded in writing and signed by both parties.
- COPYRIGHT AND INTELLECTUAL PROPERTY
13.1 MSME LIMITED owns and has copyright in all Products, work, designs, specifications, documents and software produced by MSME LIMITED in connection with the Products and Services provided pursuant to this contract and the Customer may use the Products and Services only if paid for in full and for the purposes for which they were intended and supplied by MSME LIMITED.
- CONSUMER GUARANTEE ACT
14.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Products and Services from MSME LIMITED for the purposes of a business in terms of section 2 and 43 of that Act.
- PERSONAL GUARANTEE OR COMPANY DIRECTORS OR TRUSTEES
15.1 If the Customer is a company or trust, the director(s) or trustee(s) signing this contract, in consideration for MSME LIMITED agreeing to supply Products and Services and grant credit to the Customer at their request, also sign this contract in their personal capacity and jointly and severally personally undertake as principal debtors to MSME LIMITED the payment of any and all monies now or hereafter owed by the Customer to MSME LIMITED and indemnify MSME LIMITED against non-payment by the Customer. Any personal liability of a signatory hereto shall not exclude the Customer in any way whatsoever from the liabilities and obligations contained in this contract. The signatories and Customer shall be jointly and severally liable under the terms and conditions of this contract and for payment of all sums due hereunder.
- DISPUTES AND RETURN OF PRODUCTS
16.1 No claim relating to the Products and Services will be considered unless made within twenty(20) days of receipt of invoice.
- RESTRICTION ON TRADE WITH MSME LIMITED EMPLOYEES
17.1 In signing this agreement. The Customer acknowledges that MSME LIMITED employees are subject to enforceable restraints of trade as terms and conditions of their employment, which prevent them from soliciting business or custom for services identical or similar to those provided by MSME LIMITED or carrying out work, for any Customer or client of MSME LIMITED with whom they had material dealings in the course of their employment (or if notice of termination has been given, then material dealings during the 12 months immediately preceding the termination of this employment), for the period of one year after their employment with MSME LIMITED ends.
17.2 The Client agrees not to separately obtain services from or provide work to any employee of MSME LIMITED, with whom they have had material dealings and who is subject to a restraint of trade as a term of their employment, while the employee is employed by MSME LIMITED or for a period of one year after the Customer has had dealings with that employee while obtaining services from MSME LIMITED, unless consent from MSME LIMITED is obtained.
17.3 The Client acknowledges that MSME LIMITED incurs substantial expenses for recruiting and training its employees and that adequate consideration for this clause is included in the supply of Products or Services to The Customer by MSME LIMITED.
18.1 MSME LIMITED shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
18.2 Failure by MSME LIMITED to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights of obligations MSME LIMITED has under this contract.
18.3 If any provision of this contract shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.