Terms & Conditions
MJM ELECTRICS LIMITED TERMS AND CONDITIONS OF TRADE
The company carries out business solely in accordance with these terms and conditions, which contain the entire terms and conditions upon which Works will be carried out or Goods supplied. All representations and warranties other than those set out in these terms and conditions are hereby excluded. Except for the Prescribed Terms, any terms, conditions or warranties not expressly stated in the terms and conditions do not form part of any contract between the Company and the Customer regarding the works. No attempted or purported variation of these terms and conditions shall be effective unless the variation is accepted in writing and signed by the director of the Company.
MJM ELECTRICS LIMITED TO PROVIDE GOODS AND SERVICES
MJM Electrics Limited shall provide services and goods as set out in the schedule together with such other incidental services as the MJM Electrics Limited may consider necessary for the proper performance of the works, and such other services as may be agreed between the parties.
STANDARD OF SKILL, CARE AND DILIGENCE
MJM Electrics Limited and its employees shall perform its services in accordance with the reasonable standard of skill, care and diligence generally exercised by the profession in New Zealand subject to any financial, physical, time or other restraints imposed by the client or necessarily resulting from the nature of the engagement.
CONDITIONS BINDING ON PRINCIPAL
The terms of these conditions of engagement shall be binding on the owner of the works, vessel, land or building or other party for whose ultimate benefit the services are to be performed ("the principal") whether or not the principal is the client.
CONDITIONS TO APPLY TO PRINCIPAL
Where the client is an adviser to the principal or some other representative of the principal, then the adviser or other representative undertakes to contract with the principal, for the benefit of MJM Electrics Limited, to the effect that these conditions shall apply to the principal as if the principal were the client, and the adviser or other representative shall be liable to MJM Electrics Limited for any failure to obtain the benefit of such a contract.
OBLIGATIONS ENFORCEABLE
Both the obligations imposed by this clause, and the provisions of any contract with the principal entered into in accordance with this clause, shall be enforceable at the suit of any such party.
PAYMENT
Payment in full without any deduction whatsoever, whether by way of set off, counterclaim or otherwise, shall be made no later than 14 working days following the invoice to the Customer, or otherwise as per any agreed payment terms in respect of any particular Goods and/or Services.
Any damage to materials done by other workers on the site is the client’s or principal’s responsibility to replace. MJM Electrics Limited will notify the client of such damage and this can be fixed by MJM Electrics Limited at the remedial rate agreed in addition to any other fixed or remedial charges relating to the job.
RISK
Although the seller may retain ownership of the Goods nonetheless the Goods shall be at the Customers risk immediately upon delivery to the customer, the site on which the Work is to be carried out or into the Customer’s custody (whichever is sooner).
TITLE
Ownership of the Goods remains with the Company (whether the goods have been attached or built in to real personal property) and does not pass until the Customer:
1) The Customer has paid the seller all amounts owing for the particular Goods and Services under this contract; and
2) The Customer has met all their obligations due by the customer to the Company in respect to all contracts between the Company and the Customer.
The parties do not intend that the Goods become part of the land but, rather agree that the Goods shall at all times be capable of removal by the Company in accordance with these terms and conditions.
Receipt by the Company of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honored, cleared or recognized and until then the Company’s ownership or rights in respect of the Goods shall continue.
It is further agreed that-
a) Where practicable the Goods shall be kept separate and identifiable until the Company shall have received payment and all other obligations of the Customer are met; and
b) Until such time as ownership of the Goods shall pass from the Company to the Customer the Company may give notice in writing to the Customer to return the Goods or any of them to the Company. Upon such notice being given the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
c) The Customer is only a bailee of the Goods and until such time as the seller has received payment in full for the Goods then the customer shall hold any proceeds from the sale or disposal of the Goods on trust for the Company; and
d) Until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that the Company will be the owner of the end products; and
e) If the Customer fails to return the Goods to the Company the Company or the Company’s agent may enter upon and into the land and the premises owned; occupied or used by the Customer, or any premises where the Goods are situated as the invitee of the Customer and take possession of the Goods, and the Company will not be liable for any reasonable damage or loss suffered as a result of any action by the Company under this clause.
PERSONAL PROPERTIES SECURITIES ACT 1999 (“PPSA”)
Upon assenting to these terms and conditions in writing the Customer acknowledges that:
a) These terms and conditions constitute a security agreement for the purposes of the PPSA.
b) A security interest is taken in all Goods previously supplied by the Company to the Customer (if any) and all Goods that will be supplied in the future by the Company to the Customer.
The customer 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 the Company may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
b) Indemnify, and upon demand reimburse, the Company 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 statement demand without the prior written consent of the Company; and
d) Immediately advise the Company 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.
The Company and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
The Customer waives its rights as a debtor under sections 116,120(2), 121, 125, 126, 127, 129, 131 and 132of the PPSA.
Unless otherwise agreed to in writing by the Company the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
The Customer shall unconditionally ratify any actions taken by the Company under the above clauses.
LIEN
In addition to any possessory lien which the Company may have over the vessel or other Goods or items on which the works have been carried out, the Company shall have a general lien over all other property of the Customer that comes into the possession of the Company for any reason until all amounts owing to the Company on any account whatsoever have been paid to the Company.
WARRANTY
For goods not manufactured by the Company, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Company 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. All goods supplied have a declaration of conformity as provided by the manufacturer.
To the extent permitted by statute, no warranty is given by the Company as to the quality or the suitability of the Goods for any purpose and any implied warranty, is expressly excluded. The Company shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
CUSTOMER DISCLAIMER
The Customer hereby disclaims any right to rescind, or cancel any contract with the Company or sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by the Company and the Customer acknowledges that the Goods are bought relying solely upon the Customer’s skill and judgment.
LIMITATION OF LIABILITY
Subject to the Prescribed Terms, the liability of the Company for any breach of any Prescribed Term shall be limited at the option of the Company to;
(a) The replacement of the Goods or the supply of equivalent Goods; or
(b) The repair of the Goods; or
(c) The payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
(d) The payment of the cost of repairing the Goods;
(e) The supply of services or Works again; or
(f) The payment of the cost of having the services or Works supplied again.
Any alleged defect or issue with any work carried out by the Company must be notified to the Company in writing within 3 working days of receipt of the invoice for that work. After notification is received the Company will assess the alleged defect or issue with the work and will act at its option and in accordance with the paragraph and options above if the Company deems necessary. If the Customer does not notify the company within 3 working days of receipt of the invoice for that work the Customer is deemed to have accepted the quality and workmanship of the goods and services supplied and agrees to waive any rights that it may have against the company for the work and the Customer agrees that it shall not make any claim against the company for that work and shall indemnify the Company against any third party who may have a claim against the Company for that work. If the customer without written consent of the Company engages a third party to fix, work on or otherwise interfere with the work of the Company the Customer agrees that it shall pay for any third party that has been engaged for that work and shall indemnify the company for any costs associated with that work.
The Company shall not be liable for the cost of any work the Customer or any third party carries out whether or not that work is in relation to work the Company has carried out or has been contracted to carry out unless the Company has consented to that work in writing.
Except as provided in there Terms and Conditions, the Company shall not in any circumstances whatsoever be liable in contract, tort, negligence or otherwise for any loss or damage whatsoever (including consequential, indirect, special or economic loss or damage) which arises out of or in connection with the Works including, without limitation, any negligent act or omission on the part of the Company or any employee, agent or subcontractor of the Company.
The Customer indemnifies the Company for any liability in contract, tort, negligence or otherwise incurred by the Company to any third person that arises out of or in connection with the Works including, without limitation, any negligent act or omission on the part of the Company or any employee, agent or subcontractor of the Company.
FORCE MAJEURE
If the Company by reason of any matter beyond its control including, without limitation, any act of God, strike, lockout or other interference with work, war (declared or undeclared), blockade, disturbance, lightning, fire, earthquake, storm, flood, explosion, governmental or quasi governmental restraint, expropriation, prohibition, intervention, embargo, unavailability or delay in availability of supplies, equipment or transport, refusal or delay in obtaining governmental or quasi-governmental approvals, consents, permits, licenses, authorities or allocations is unable to perform in whole or in part any obligation under these terms and conditions, the Company shall be relived of that obligation under these terms and conditions to the extent and for the period that it is not reasonably able to perform and the Company shall not in any way be liable to the Customer in respect to such inability.
SUB-CONTRACTING AND INDEMINITY
The Company shall be entitled to sub-contract on any terms the whole or part of the Works and any and all acts or things that are in the opinion of the Company necessary or desirable to carry out and complete the Works. The Company may licence or subcontract all or any part of its rights and obligations without the Customer’s consent.
RIGHT TO SETOFF OR COUNTERCLAIM
If the Company suffers any cost, expense, loss or damage as a result of a failure of the Customer or breach of this contract by the Customer, the Company shall be entitled to deduct, counterclaim or setoff any such cost, expense, loss or damage from any moneys otherwise due or becoming due to the Customer.
CONFLICT TERMS
Any conditions terms, tags, whatsoever of any contract or Terms and Conditions of the Customer that the Company has signed or will sign that are inconsistent with or are in addition to the Terms and Condition of the Company are hereby excluded and deemed not applicable. The Customer acknowledges and agrees that if any other contract or Terms and Conditions the Company has signed or will sign contains a clause similar to this excluding the Company’s Terms and Conditions these Terms and Conditions shall prevail and the Customer acknowledges and agrees that any clause of that nature shall be deemed deleted and removed from that contract prior to the contract being signed. The Customer agrees that it shall not act or enforce any term as described above against the Company in any way whatsoever.
DISPUTES
In the event that a dispute or question arises between the Company and the Customer concerning the quality of the Goods supplied or the standard of workmanship or any other matters arising from the contract between the parties, the parties agree that, either of them shall have the right to give to the other notice that the matter is to be referred to mediation in Auckland by a mediator who is a member of the LEADR in Auckland. In the event that the parties are unable to resolve their dispute by mediation, the matter shall be dealt with by the applicable Court in Auckland.
WAIVER
All the original rights, powers and exemptions and remedies of the Company shall remain in force notwithstanding any neglect or forbearance or delay in the enforcement thereof. The Company shall not be deemed to have waived any condition, unless such waiver shall be in writing under the signature of the manager or director of the Company, and any each waiver unless the contrary shall be expressly stated, shall apply to and operate only in the particular transaction dealing or matter.
DEFAULT AND CONSEQUENCES OF DEFAULT
If and event of Default occurs:
a) The Company may suspend or terminate any contract;
b) The amount owing shall immediately become due and payable notwithstanding that the due date has not arisen;
c) The Company may enforce the Security Interest; and
d) The Company may (without the consent of the Customer) appoint a receiver in respect to any Goods and any receiver is authorized to do anything referred to in these terms and conditions and otherwise to exercise all rights and powers conferred on a receiver by law. The Company will not be liable to the Customer for any loss or damage the Customer suffers because the Company has exercised its rights under this clause.
The Customer agrees that, at any time after an Event of Default has occurred and is continuing or at any time if any Goods are at the risk, the Company may:
a) Take possession of any Goods; and/or
b) Sell or otherwise dispose of any Goods,
In each case in such manner and generally on such terms and conditions as it thinks fit, and, in each case otherwise do anything the Customer could do in relation to those Goods. The Company and the Customer agree that section 109(1) of the PPSA is contracted out of in respect of the particular Goods if, and only as long as, the Company Is not the secured party with priority over all other secured parties in respect of those goods. As the Customer’s agent, the Company (and its employees and agents) may, without prior notice, enter any land or premises where the Goods are kept in order to take possession of and/or remove them, without being responsible for any damage caused in doing so. The Customer agrees to procure all other rights (including consents) necessary to enable, and to indemnify the Company (and its employees and agents) against any liability incurred in connection with, such entry, taking of possession and removal. The Company may resell any of the Goods and apply the proceeds of sale in reduction of the Amount Owing.
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 the Company’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by the Company.
If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Company from and against all costs and disbursements incurred by the Company in pursuing the debt including legal costs on a solicitor and own client basis and the Company’s collection agency costs.
CONSTRUCTION CONTRACTS ACT 2002
The Customer hereby expressly acknowledges that:
a) The Company has the right to suspend work within five (5) working days of written notice of its intent to do so if a payment claim is served on the Customer, and;
i) The payment is not paid in full by the due date for payment and no payment schedule has been given by the Customer; or
ii) A scheduled amount stated in a payment schedule issued by the Customer in relation to the payment claim is not paid in full by the due date for its payment; or
iii) The Customer has not complied with an adjudicator’s notice that the Customer must pay an amount to the Company by a particular date; and
iv) The Company has given written notice to the Customer of its intention to suspend the carrying out of construction work under the construction contract.
b) if the Company suspends work;
i) It is not in breach of contract; and
ii) It is not liable for any loss or damage whatsoever suffered or alleged to be suffered by the Customer; and
iii) It is entitled to an extension of time to complete the contract; and
iv) It keeps its rights under the contract including the right to terminate the contract, and may at any time lift the suspension, even if the amount has not been paid or an adjudicator’s determination has not been complied with.
c) If the Company exercises the right to suspend work, the exercise of that right does not;
i) Affect any rights that would otherwise have been available to the Company under the Contractual Remedies Act 1979; or
ii) Enable the Customer to exercise any rights that may otherwise have been available to the Customer under that Act as a direct consequence of the Company suspending work under this provision.
CONSUMER GUARANTEES ACT 1993
If the Customer is acquiring Goods for the purposes of Trade or Business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by the Company to the Customer.
SECURITY AND CHARGE
Despite anything to the contrary contained herein or any other rights the Company may have howsoever:
a) Where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Company or the Company’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that the Company (or the Company’s nominee) shall be entitled to lodge where appropriate a caveat which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
b) Should the Company elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify the Company from and against all the Company’s costs and disbursements including legal costs on a solicitor and own client basis.
c) The Customer and/or Guarantor (if any) agree to irrevocably nominate constitute and appoint the Company or the Company’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to provisions of the above clauses.
GENERAL
If any provision of these terms and conditions 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.
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 courts of New Zealand.
The Company shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Company of these terms and conditions.
The Customer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Customer by the Company.
The Company reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Company notifies the Customer of such change.
If these terms and conditions are not signed but provided prior to work commencing and the customer after receiving these terms agrees to the company completing work for the customer then these terms are deemed to be have been accepted and the company shall provide all goods and services in accordance with these terms.
INTERPRETATION
“Customer” includes the person, firm, company, body corporate, association or unincorporated association (or any agent of any such entity) who requests the Company to carry out Works; and includes also their permitted successors and assigns;
“Company” means MJM Electrics Limited and includes its successors and assigns.
“Amount Owing” means, at any time, the unpaid price charged by the Company for the Goods and Services and any other sums which the Company is entitled to charge under these terms and conditions or which are otherwise owing by the Customer to the Company (in whatever capacity).
An “Event of Default” means an event where;
a) the Customer fails to comply with these terms and conditions or any other agreement with the Company; or
b) the Customer is subject to any event which is in the nature of dissolution, winding up, bankruptcy, liquidation, insolvency or receivership, or which generally precedes such an event; or
c) an event occurs or information becomes known to the Company, which in the Company’s opinion, might materially affect the Customer’s creditworthiness, the value of the Goods, the subject of the Security Interest, or the Customers ability or willingness to comply with its obligations under these terms and conditions or any other agreement with the company; or
d) any guarantor of the Customer’s obligations under these terms and conditions is in default under any agreement with the Company (in any capacity).
“Goods” means all Goods supplied from time to time by the Company to the Customer. Provided that;
a) (but solely for the purpose of the application of the PPSA) where goods supplied are inventory of the Customer, then all references to Goods in there terms and conditions shall, in respect of those goods, be read as reference to inventory for so long as they are held as inventory; and
b) where the goods supplied are not inventory of Customer, all references to Goods in there terms and conditions shall, in respect to those goods, include the goods described in any one or more of the relevant order form, packing slip or invoice or its equivalent whatever called prepared by the Company and relating to those goods, on the basis that each such order form, packing slip or invoice (or its equivalent) is deemed to be assented to by the Customer, incorporated in, and form part of, there terms and conditions, and (unless the context requires otherwise) includes all proceeds of such Goods and any product or mass of which the Goods subsequently become part.
“PPSA” means the Personal Property Securities Act 1999, and where connect permits, includes the Personal Property Securities Regulations 2001.
“Prescribed Terms” means the terms, conditions and warranties implied by law into contracts for the supply of goods and services and the carrying our of Works which cannot be excluded, restricted or modified by this agreement.
“Security Interest” means the security interest provided for by these terms and conditions.
“Works” means all works, including (without limitation) services, installation, design and storage, carried out by the Company for and on behalf of the Customer, including activity incidental to such works and the supply of Goods and whether or not specifically requested by the Customer.
In these terms and conditions:
a) a reference to a contract, these terms and conditions or any other document includes any variation or replacement of them;
b) Headings are for ease of reference and do no affect interpretation
c) A reference to a statute includes regulations under it and consolidations, amendments, re-enactments or replacements of any of them.
I have read and understand the MJM ELECTRICS LIMITED TERMS AND CONDITIONS OF TRADE and are in agreement with the foregoing 5 pages attached to the schedule and agreement which form part of, and are intended to be read in conjunction with this schedule and agreement and agree to be bound by these terms and conditions. I agree that if I am a director or a shareholder (owing at least 15% of the shares) of the Customer I shall be personally liable for the performance of the Customer’s obligations under this contract.
SIGNED:___________________ POSITION:__________________
NAME: ____________________ DATE: ___________________