Terms of Service
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TERMS & CONDITIONS OF TRADE
1. DEFINITIONS
1.1 “RANKIN MCMANUS”, “we”, “us” or “our” shall mean RANKIN MCMANUS ELECTRICAL (2010) LIMITED, or any agents or employees thereof.
1.2 “Customer”, “You” or “Your” shall mean the purchaser, any person action on behalf of and with the authority of the Customer, or any person purchasing/renting goods from RANKIN MCMANUS.
1.3 “Goods” shall mean all goods, chattels, or services provided by RANKIN MCMANUS to the Applicant, and shall include without limitation the supply and manufacture of electrical equipment, fixtures and fittings, all charges for labour and work, hire charges, insurance charges, or any fee or charge associated with the supply of goods and services by RANKIN MCMANUS to the Applicant.
1.4 “Price” shall mean the cost of the goods as agreed between RANKIN MCMANUS and the Customer subject to clause 4 of this contract.
1.5 “Default” includes you or any Guarantor:- (a) Being unable to pay your debts as they fall due; or (b) failing to comply with these Terms or any other agreement with RANKIN MCMANUS; or (c) having an application made (or resolution passed) for a receiver, liquidators, administrator or other statutory manager to be appointed; or (d) being convicted of a criminal offence; or (e) Doing any act that in RANKIN MCMANUS’s opinion causes or threatens the risk, safety, condition or safekeeping of any Goods we supply to you; (f) ceasing to carry on business or suffering a material adverse change which in RANKIN MCMANUS’s opinion changes your financial position or creditworthiness; (g) Indicating by notice or conduct that you no longer intend to comply with your obligations under any agreement with RANKIN MCMANUS.
1.6 “Guarantors” shall mean all signatories who have signed RANKIN MCMANUS’S credit account application form.
1.7 “PPSR” shall mean the Personal Property Securities Act 1999.
1.8 “Quote” or “Quotation” shall include any offer or tender and any drawings or specifications listed therein.
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2. CUSTOMER’S AUTHORITY
2.1 You warrant that:-
(a) You are either the Customer or the authorised agent of
the Customer; or
(b) You are authorised to accept and are accepting these
terms not only personally but as agent for and on behalf of
the Customer.
2.2 You shall not assign all or any of your rights or obligations under
this contract unless we agree specifically in writing. You shall advise
us of any alteration to your entity structure and/or of any
revocation of an agent’s authority to purchase. Until such written
confirmation is received and specifically accepted by us in writing,
you shall remain liable for any amount owing and our conduct shall
not be deemed acceptance or affirmation of any assignment or
revocation.
3. ACCEPTANCE AND GENERAL
3.1 All goods are supplied on the basis of these terms and
conditions (“terms”) and any order received by us from you
and/or use of your credit account with us (if any) shall
constitute acceptance of these terms.
3.2 Unless otherwise expressly agreed in writing by us, these terms:
(a) may be amended by us from time to time; and
(b) in conjunction with our quote express the entire
understanding and agreement between you and us.
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3.3 All the rights and remedies under this agreement shall remain in full
force notwithstanding any neglect, forbearance or delay in
enforcement by us.
3.4 Any notice provided by us to you or any guarantor, including
notification of any alterations to these terms, shall be deemed to be
delivered and received by you immediately if sent to your last known fax or email address or three days after posting to your last known mailing address.
4. PRICE
4.1 Where no price is stated in writing or agreed to orally the goods
shall be deemed to be sold at the current amount as such goods are
sold by RANKIN MCMANUS 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 goods that is beyond the control of RANKIN MCMANUS between the date of contract and delivery of the goods.
5. PAYMENT
5.1 Payment for goods shall be made in full on or before the 20th day of
the month following the date of the invoice, or on receipt of delivery of goods, whichever is the earlier (“the due date”).
5.2 Payment for goods supplied on a “CASH” basis is to be made before
or at the time the goods are uplifted or dispatched.
5.3 Interest may be charged on any amount owing after the due date at
the rate of 2.5% per month or part month.
5.4 Any expenses, disbursements, legal costs or debt collection agency
fees incurred by RANKIN MCMANUS in the enforcement of any
rights contained in this contract shall be paid by the Customer,
including any reasonable solicitor’s fees.
5.5 Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
6. QUOTATION
6.1 Unless withdrawn in writing our quotation is available for
acceptance for 30 days (or any longer period stated in the quote)
from the date of quotation, and thereafter is subject to confirmation.
6.2 The quotation shall be exclusive of Goods and Services Tax unless
specifically stated to the contrary.
6.3 Where goods are required in addition to the quotation the
customer agrees to pay for the additional cost of such goods.
7. DELIVERY AND RISK OF GOODS
7.1 The goods remain at RANKIN MCMANUS’s risk until the delivery to
the Customer, but when title passes to the Customer pursuant to
clause 9.1 of this contract the goods are at the Customer’s risk
whether delivery has been made or not.
7.2 Delivery shall be deemed complete when RANKIN MCMANUS gives possession of the goods for delivery to the Customer, or possession of the goods is given to a common carrier, or other bailee for the purposes of transmission to the Customer.
7.3 The time agreed for delivery shall not be an essential term of this
contract unless the Customer gives written notice to RANKIN
MCMANUS making time of the essence.
7.4 Where RANKIN MCMANUS delivers goods to the Customer by
instalments and RANKIN MCMANUS fails to deliver one or more
instalments the Customer shall not have the right to repudiate the
contract but shall have the right to claim compensation as a
severable breach.
8. AGENCY
8.1 The Customer authorises RANKIN MCMANUS to contract either as principal or agent for the provision of goods that are the matter of
this contract.
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8.2 Where RANKIN MCMANUS enters into a contract of the type
referred to in clause 8.1 it shall be read with and form part of this
agreement and the Customer agrees to pay any amounts due under
that contract.
9. RETENTION OF TITLE
9.1 If the goods are ascertained and in a deliverable state, title in
the goods passes to the Customer when the Customer has made
payment for all goods supplied by RANKIN MCMANUS.
9.2 Where the Customer has not paid for any goods in its
possession property in such goods shall remain with RANKIN
MCMANUS and:
(a) you shall hold the goods as our agent and shall store the
goods (or any funds you receive in payment of the goods) in
such a way that it is clear that they are our property and so
they will not deteriorate;
(b) you will immediately notify us of any action which affects our
interest in the goods.
(c) if the goods are attached, fixed or incorporated into any
property of the Customer, by way of any manufacturing or
assembly process by the Customer or any third party, title in
the goods shall remain with RANKIN MCMANUS until the
Customer has made payment for all goods, and where those
goods, title to these new goods shall deemed to be assigned
to RANKIN MCMANUS as security for the full satisfaction by
the Customer of the full amount owing between RANKIN
MCMANUS and the Customer.
9.3 You irrevocably give us licence without the necessity of giving
any notice to enter all premises at which we on reasonable grounds
believe the goods to be stored, to inspect, remove or repossess any
goods supplied by us and not paid for by you. We shall not be liable
for costs, damages or expenses or any other moneys or losses
suffered by you or any third party as a result of this action. You
shall indemnify us for any liability we suffer as a result of such
actions.
9.4 We may bring an action for the Amount Owing on the goods
sold despite the fact ownership of the goods may not have passed
to you.
10. PERSONAL PROPERTY SECURITIES ACT 1999
10.1 Interpretation – all section references in this clause shall mean the
relevant clause in the PPSA.
10.2 Security: Upon consenting to these terms or by accepting supply
from us, you acknowledge and agree that:
(a) you grant a security interest (by virtue of our retention of
title clause) to us in all present goods supplied by us to you (if
any) and all after acquired goods supplied by us to you (or for
your account).
(b) You will not allow any goods to become an accession to any
property that is not subject to the security interest granted
pursuant to these terms.
(c) You will ensure nothing is done or omitted to be done that
might adversely affect any security interest in the goods
granted in our favour.
10.3 Financing Statement: You acknowledge, agree and undertake (as
the case may be) to:
(a) sign any further documents and/or provide any further
information (which information you warrant to be complete
accurate and up to date in all respects) which we may
reasonably require to register a financing statement or
financing change statement on the Personal Properties
Securities Register.
(b) Irrevocably appoint us to be your attorney to do anything
which you agree to do under this agreement and anything
which the attorney thinks desirable to protect the Company’s
interest under this agreement and you ratify anything done
by the attorney under this clause.
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(c) not register a change demand without our prior written
consent, which may be given or withheld at our absolute
discretion.
(d) You will, upon demand, meet our costs:
(i) in relation to registering a financial statement or
financing change statement, or releasing any financing
statement on the Personal Property Securities
Register;
(ii) enforcing our security interest including our legal costs
on a solicitor client basis;
(e) give us not less than 14 days prior written notice of any
proposed change in your name, and/or any other change in
your details or otherwise (including but not limited to a
change in your place of incorporation, address, location,
nature of business, ownership, facsimile or phone number, or
business practice).
10.4 Waiver and Contract Out: To the extent permitted by law, you and
us agree to contract out of:
(a) Sections 114(1)(a) 133, 134 and 148 of the PPSA; and
(b) The Buyer’s rights referred to in sections 107(a) to (i) of the
PPSA.
11. RECEIPT AND RETURN OF GOODS
11.1 All goods must be carefully checked upon receipt and no claim
relating to delivery of goods shall be considered unless made within
48 hours of delivery.
11.2 The Customer shall be deemed to have accepted the goods unless
the Customer notifies RANKIN MCMANUS otherwise within 10 days
of delivery of the goods to the Customer.
11.3 If the goods are not accepted according to clause 11.2 of this
contract the Customer shall pay for the delivery of the returned
goods to RANKIN MCMANUS.
12. CREDIT FACILITIES
12.1 We may grant or decline to grant credit to you. We may in our sole
discretion , at any time and without reason or notice to you and/or
any Guarantor, and without prejudice to any other right it has in law
or equity:-
(a) Increase or decrease the amount of credit supplied to
you;
(b) terminate or suspend any credit arrangement we have
with you in which case all monies owing by you to us shall be
immediately due; and
(c) request additional security from you on terms satisfactory to
us before proceeding further with any order.
12.2 You acknowledge that neither these terms nor your credit
application shall be construed to be a consumer credit contract as
defined by Section 11 of the Credit Contracts and Consumer Finance
Act 2003.
13. CONSUMER GUARANTEES ACT 1993
13.1 Nothing in these terms of trade excludes, limits, restricts or is
intended to derogate from any right or remedy which you may have
pursuant to the Consumer Guarantees Act 1993 (“CGA”), if you are
a consumer as defined in the CGA who requests the goods and
services for personal use. However the guarantees contained in the
CGA are expressly excluded where you acquire goods or services
from us for the purposes of a business.
13.2 If you on sell the goods to a third party; you agree:
(a) Where permitted by law, to contract out of the CGA; and
(b) to neither give or make any assertion or representation in
relation to our goods without our prior written approval nor
hold yourself out to be our agent;
(c) to indemnify us for any losses incurred due to third party
claims against us as Manufacturer/Importer.
14. LIABILITY
14.1 Except as otherwise provided by statute RANKIN MCMANUS shall not be liable for:-
(a) Any loss or damage or any kind whatsoever whether suffered
or incurred by the Customer or another person whether such
loss or damage arises directly or indirectly from goods or
services or advice provided by RANKIN MCMANUS to the
Customer and without limiting the generality of the foregoing
of this clause RANKIN MCMANUS shall not be liable for any
consequential loss or damage of any kind including without
limitation any financial loss; and
(b) Except as provided in this contract RANKIN MCMANUS shall
not be liable in contract, or in tort, or otherwise for any loss,
damage, or injury beyond the value of the goods provided by
RANKIN MCMANUS to the Customer; and
(c) The Customer shall indemnify RANKIN MCMANUS against all
claims of any kind whatsoever however caused or arising and
without limiting the generality of the foregoing of this clause
whether caused or arising as a result of the negligence of
RANKIN MCMANUS or otherwise, brought by any personal in
connection with any matter, act, omission, or error by
RANKIN MCMANUS, its agents or employees in connection
with the goods.
15. WARRANTY
15.1 No representation, conditions, warranty or premise expressed or
implied by law or otherwise applies to goods except where goods are supplied pursuant to the CGA or except where expressly provided to the Customer at the time of sale HOWEVER no warranty shall exceed that given by the manufacturer.
15.2 RANKIN MCMANUS does not provide any warranty that the goods are fit and suitable for the purpose for which they are required by
the Customer and shall not be liable if they are not.
15.3 Notwithstanding the above RANKIN MCMANUS will provide a 12
month warranty on all goods supplied to the Customer.
16. CANCELLATION
16.1 RANKIN MCMANUS shall, without any liability, and without any
prejudice to any other right it has in law or equity, have the right by
notice to suspend or cancel in whole or in party any contract for the
supply of goods to the Customer if the Customer fails to pay any
money owing after the due date or the Customer commits an act of
bankruptcy as defined in the Insolvency Act 2006.
16.2 Any cancellation or suspension under clause 16.1 of this
agreement shall not affect RANKIN MCMANUS’s claim for money
due at the time of cancellation or suspension or for damages for any
breach of any terms of this contract or the Customer’s obligations to RANKIN MCMANUS under this contract.
17. FORCE MAJEURE
17.1 Without limiting any other provisions of these terms, we shall
not be liable for any claims resulting from our delay or failure
in the performance of any obligation or the exercise of any right as a
result of a “Force Majeure” event.
17.2 Force Majeure means any event outside our reasonable control
including acts of God, declared or undeclared war, fire, flood, storm,
slide, earthquake, hurricanes, cyclones, riot, power failure,
industrial action, defaults of manufacturers and supplies, the
inability to obtain equipment, supplies or other facilities that are
not caused by a failure to pay, labour disputes, theft, any criminal
act or other similar events beyond our control that may prevent or
delay our supply of goods or services to you.
17.3 Nothing in this clause shall excuse payment of any amount owing
due or which becomes due under these terms and the occurrence
of a force majeure event shall not give you a right to cancel any
agreement with us.
18. SECURITY
18.1 You and/or any Guarantor agree that in the event of default
we shall have the right to complete and register a mortgage
(on the most current Auckland District Law Society all moneys
memorandum of mortgage as updated from time to time) over
any property owned by you and/or any Guarantor in order to
protect our rights and interest under these terms. We shall also
have the right at our discretion to place a caveat on any such
property for the purpose of this clause.
18.2 You agreed to do all acts required for us to register the security and
if you fail to do so within 3 working days of our request, you and/or
the Guarantor hereby irrevocably appoints us as your attorney for
the purpose of us exercising our rights under this clause.
19. PRIVACY ACT CONSENT & RIGHTS
19.1 Where you are an individual, you understand this information
is being collected in accordance with the Privacy Act 1993 and that
you have rights of access to and correction of personal information
held by us. You agree and authorise us to obtain or divulge any
information about you (including adverse information) from or to
any third party (including credit reporting and debt collection
agencies) in the course of our business activities including credit
assessment, debt collection and direct marketing activities.
20. PERSONAL GUARANTEE
20.1 In consideration of us supplying and continuing to supply goods
and/or services to the Customer, the Guarantors jointly and
severally guarantee and indemnify the due performance and
observance of the Customer’s obligations contained in this
agreement with us including, upon demand, the payment of all
amounts owing which is or may become due to us by the Customer.
20.2 The Guarantor/s acknowledge:
(a) This is a continuing Guarantee; and
(b) Their obligation to us is as a principal debtor; and
(c) If there is more than one Guarantor, their liability shall
be joint and several; and
(d) Their liability under the Guarantee shall not be effected or
discharged by the granting of time or credit to the Customer,
or by the release, abandonment or waiver of any rights
against the Customer, or the liquidation or bankruptcy of the
Customer; and
(e) This Guarantee is in addition to and not in substitution
of any other guarantee or security or other rights which we
may presently have or may subsequently acquire and may be
enforced without the necessity of making demand or
enforcing any such other guarantees, securities or rights; and
(f) the Guarantee shall continue in full force until we agree to
release them in writing and even if:
(i) The Customer’s obligations to us has been fully
paid, satisfied or performed; or
(ii) Our conduct of the day to day operation of the
Customer’s credit account (including but not limited
to termination of supply, granting of credit, extension
of further credit, granting of time, waiver, indulgence,
neglect to sue or failure to give appropriate notice)
implied the Guarantors may be released from this
Guarantee; or
(iii) We release any other party from partial or total
liability.
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21. MISCELLANEOUS
21.1 The Customer shall not assign all or any of its rights or obligations
under this contract without the written consent of RANKIN
MCMANUS.
21.2 Failure by RANKIN MCMANUS 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 or obligations RANKIN MCMANUS has
under this contract.
21.3 The law of New Zealand shall apply to this contract except to the
extent expressly negative or varied by this contract.
21.4 Where the terms of this are at variance with the order or instruction
from the Customer, this contract shall prevail.
21.5 If any provision of this contract shall be invalid, void or illegal or
unenforceable the validity existences, legality and enforceability of
the remaining provisions shall not be affected, prejudiced or
impaired.
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