Terms and Conditions

  1. Definitions
    Unless the context otherwise requires then in construing the Agreement:
    1. “Agreement” means the entire contractual agreement between the parties.
    2. “Firm” means Mach 3 Industries (2007) Limited its successors and assigns or any person acting on behalf of and with the authority of Mach 3 Industries (2007) Limited.
    3. “Project” means the letters or other documents prepared by the Firm to provide Goods.
    4. “Goods” shall mean Goods supplied by the Firm to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and includes Goods described on any invoices, Proposals, work authorisation or any other forms as provided by the Firm to the Client.
    5. “Services” shall mean all services supplied by the Firm to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
    6.  “Client” shall mean the Client or any person acting on behalf of and with the authority of the Client.
    7. “Guarantor” shall mean any person (or persons), or entity who agrees herein to be liable for the debts of the Client on a principal debtor basis.
    8. “Proposal” means the letters or other documents prepared by the Firm and submitted to the client to describe the scope of Services to be undertaken, the personnel and equipment proposed to be utilized and the amount or method of calculation of the Fee and reimbursable expenses.
    9. “Fee” shall mean the cost of the Services as agreed between the Firm and the Client subject to clause 5 of this contract.
       
  2. Acceptance
    1. Any instructions received by the Firm from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by the Firm shall constitute acceptance of the terms and conditions contained herein.
    2. Upon acceptance of these terms and conditions by the Client the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the director of the Firm.
    3. None of the Firm’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the director of the Firm in writing nor is the Firm bound by any such unauthorised statements.
    4. The Client shall give the Firm not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by the Firm as a result of the Client’s failure to comply with this clause.
       
  3. Role of the Consulting Engineer
    1. The Firm shall exercise reasonable skill, care and diligence in the performance of the Services in accordance with the ethics of the engineering profession.
    2. If the Firm is required to exercise professional judgment between the Client and a third party with whom the Client has a contract then the Firm shall do so independently and as required by the terms of that contract.
    3. The Firm shall use all reasonable efforts to inform themselves of the Client’s requirements for the Project and for that purpose the Firm shall consult the Client throughout the performance of the Services.
    4. If the Firm considers that the information, documents and other particulars made available to them by the Client are not sufficient to enable the Firm to provide the Goods in accordance with this Agreement, the Firm may advise the Client who shall then provide such further assistance, information, or other particulars as necessary in the circumstances.
    5. If the Firm becomes aware of any matter which will change or which has changed the scope of the Goods or timing of the Services then the Firm will give notice to the Client and the notice will contain, as far as practicable in the circumstances, particulars of the change.
    6. The Firm shall perform the Services in a timely manner to the extent that it is within their control to do so.
    7. Nothing contained in this Agreement shall prevent the Firm from employing with his fee such persons or companies as he may deem appropriate to assist him in the performance of the Agreement.
    8. If circumstances arise which require the services of a specialist or expertise outside the field on the Firm the Firm may with the prior approval of the Client engage the appropriate consultant.  The consultant shall be engaged at the Client’s expense and on his behalf.  The Client’s approval shall not be unreasonably withheld.
       
  4. Role of the Client
    1. The Client shall as soon as practicable make available to the Firm all information, documents and other particulars relating to the Client’s requirements for the Project.
    2. The Client shall as soon as practicable make arrangements to enable the Firm to enter upon the Site and other lands as necessary to enable the Firm to deliver the Services and/or perform the Services.
    3. Unless the parties specifically agree otherwise, the Client shall as soon as practicable obtain all approvals, authorities, licenses and permits which are required from governmental, municipal or other responsible authorities for the lawful implementation and completion of the Project.
    4. The Client agrees that the Services do not include any services which are properly carried out by other professions such as legal or accounting and if other such professional services are required the Client shall obtain these services at their own cost.
    5. The Client shall make available to the Firm at the place and at the time specified in the Proposal the equipment and facilities specified in the Proposal.
    6. The Client shall appoint a person to act as his representative and give written notice to the Firm of the name of the person so appointed.  The Client agrees that the person appointed shall have authority to act on behalf of the Client for all purposes in connection with the Agreement.
    7. If the Client becomes aware of any matter which may change the scope of the Goods or timing of the Services or the Project then the Client will give written notice to the Firm.
    8. The Client shall carry out the additional special obligations set out in the Proposal.
    9. The Client shall co-operate with the Firm and shall not interfere with or obstruct the proper performance of the Services.
    10. The Client hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Firm and the Client acknowledges that he buys the Goods relying solely upon his own skill and judgement.
       
  5. Price and Payment
    1. At the Firm’s sole discretion the Fee shall be either;
      1. as indicated on invoices provided by the Firm to the Client in respect of Goods supplied; or
      2. be the Firm’s proposed Fee which shall be binding upon the Firm provided that the Client shall accept in writing the Firm’s Proposal within thirty (30) days.
    2. The Firm reserves the right to change the Fee in the event of a variation to the Firm’s Proposal. If after the date of this Agreement there is any change to the laws, by-laws, regulations or ordinances and that change directly or indirectly increases or decreases the costs or reimbursable expenses incurred by the Firm in performing the Services then the Fee and reimbursable expenses otherwise payable to the Firm under this Agreement shall be increased or decreased accordingly.
    3. In addition to the Fee, the Client agrees to indemnify the Firm for all costs and expenses incurred by the Firm in connection with the matters set out in the Proposal.
    4. At the Firm’s sole discretion a deposit of thirty percent (30%) may be required.
    5. At the Firm’s sole discretion:
      1. payment shall be due on delivery of the Goods
      2. payment shall be due on completion of the Services; or
      3. payment for approved Clients shall be made by instalments in accordance with the Firm’s payment schedule; or
      4. payment for approved Clients shall be due twenty (20) days following the end of the month in which a statement is posted to the Client’s address or address for notices.
    6. Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due ten (10) business days following the date of the invoice.
    7. If the Client disputes the whole or any portion of the amount invoiced by the Firm, the Client shall pay that portion of the amount stated in the invoice which is not in dispute and he shall notify the Firm in writing within ten (10) business days of issue of the invoice of the reasons for disputing the amount.  If the parties are unable to reach agreement within seven (7) days of the Client’s notice, then the Firm shall be entitled to institute proceedings in a Court of competent jurisdiction for recovery of the moneys claimed to be outstanding or the dispute may be determined in accordance with their Agreement.  If it is resolved that some or all of the amount in dispute ought properly to have been paid at the time it was first claimed, then the Client shall pay the amount finally resolved together with interest on that amount in accordance with clause 14.1.
    8. Payment will be made by cash on completion, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Client and the Firm.
    9. The Fee shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Firm.
    10. If the delivery of the Goods is delayed beyond a reasonable period for any reason other than a breach of the Agreement by the Firm the Client shall pay to the Firm a reasonable sum of money to cover the consequential costs and expenses suffered by the Firm as a result of the delay.
       
  6. Delivery
    1. The failure of the Firm to deliver the Goods shall not entitle either party to treat this contract as repudiated.
    2. The Firm shall not be liable for any loss or damage whatever due to failure by the Firm to deliver the Goods (or any of them) promptly or at all.
       
  7. Title
    1. The Firm and Client agree that ownership of the Goods shall not pass until:
      1. the Client has paid the Firm all amounts owing for the particular Goods; and
      2. the Client has met all other obligations due by the Client to the Firm in respect of all contracts between the Firm and the Client.
    2. Receipt by the Firm of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Firm’s ownership or rights in respect of the Goods shall continue.
    3. It is further agreed that:
      1. where practicable the Goods shall be kept separate and identifiable until the Firm shall have received payment and all other obligations of the Client are met; and
      2. until such time as ownership of the Goods shall pass from the Firm to the Client the Firm may give notice in writing to the Client to return the Goods or any of them to the Firm. Upon such notice being given the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
      3. the Client is only a bailee of the Goods and until such time as the Firm has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods on trust for the Firm; and
      4. until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that the Firm will be the owner of the end products; and
      5. if the Client fails to return the Goods to the Firm then the Firm or the Firm’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Goods are situated as the invitee of the Client and take possession of the Goods, and the Firm will not be liable for any reasonable loss or damage suffered as a result of any action by the Firm under this clause.
         
  8. Personal Property Securities Act 1999 (“PPSA”)
    1. Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
      1. these terms and conditions constitute a security agreement for the purposes of the PPSA; and
      2. a security interest is taken in all Goods previously supplied by the Firm to the Client (if any) and all Goods that will be supplied in the future by the Firm to the Client.
    2. The Client undertakes to:
      1. 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 Firm may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
      2. indemnify, and upon demand reimburse, the Firm 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;
      3. not register a financing change statement or a change demand without the prior written consent of the Firm; and
      4. immediately advise the Firm 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.
    3. The Firm and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
    4. The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
    5. Unless otherwise agreed to in writing by the Firm, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
      1. The Client shall unconditionally ratify any actions taken by the Firm under clauses 8.1 to 8.5.
         
  9. Defects
    1. The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Firm of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote.  The Client shall afford the Firm an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way.  If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Firm has agreed in writing that the Client is entitled to reject, the Firm’s liability is limited to either (at the Firm’s discretion) replacing the Goods or repairing the Goods.
    2. Goods will not be accepted for return other than in accordance with 9.1 above.
       
  10. Warranty
    1. Subject to the conditions of warranty set out in Clause 10.2 the Firm warrants that if any defect in any workmanship of the Firm becomes apparent and is reported to the Firm within twelve (12) months of the date of delivery (time being of the essence) then the Firm will either (at the Firm’s sole discretion) replace or remedy the workmanship.
    2. The conditions applicable to the warranty given by Clause 10.1 are:
      1. the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
        1. failure on the part of the Client to properly maintain any Goods; or
        2. failure on the part of the Client to follow any instructions or guidelines provided by the Firm; or
        3. any use of any Goods otherwise than for any application specified on a quote or order form; or
        4. the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
        5. fair wear and tear, any accident or act of God.
      2. the warranty shall cease and the Firm shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Firm’s consent.
      3. in respect of all claims the Firm shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
    3. For Goods not manufactured by the Firm, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Firm 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.
       
  11. Consumer Guarantees Act 1993
    1. If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by the Firm to the Client.
       
  12. Copyright and Use of Documents
    1. Copyright in all drawings, reports, specifications, bills of quantities, calculations and other documents provided by the Firm in connection with the Project shall remain vested in the Firm.
    2. Whilst the Client is not in default of payment or any other terms of this agreement, the Client shall have a licence to use the documents referred to in Clause 12.1 for the purpose of completing the Project; however, the Client shall not use nor make copies of such documents in connection with any work other than work comprised in the Project unless express approval is given in advance by the Firm.
    3. The Firm may with the consent of the Client publish, either alone or in conjunction with others, articles, photographs and other illustrations relating to the Project.
    4. If during the course of providing the Goods, the Firm develops, discovers, or first reduces to practice a concept, product or process which is capable of being patented, then such concept, product or process shall be and remain the property of the Firm and the Client shall not use, infringe or otherwise appropriate the same without first obtaining the written consent of the Firm.
    5. If during the course of providing the Goods the Firm discovers, or is first to practice a concept, or develops a product or process capable of being patented, then the Client shall be entitled to a royalty free licence to use the same during the life of the works comprising the Project.
       
  13. Privacy Act 1993
    1. The Client and the Guarantor/s (if separate to the Client) authorises the Firm to:
      1. collect, retain and use any information about the Client and/or Guarantors, for the purpose of assessing the Client’s and/or Guarantors creditworthiness or marketing products and Goods to the Client and/or Guarantors; and
      2. disclose information about the Client and/or Guarantors, whether collected by the Firm from the Client and/or Guarantors directly or obtained by the Firm from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client and/or Guarantors.
    2. Where the Client and/or Guarantors are an individual the authorities under clause 13.1 are authorities or consents for the purposes of the Privacy Act 1993.
    3. The Client and/or Guarantors shall have the right to request the Firm for a copy of the information about the Client and/or Guarantors retained by the Firm and the right to request the Firm to correct any incorrect information about the Client and/or Guarantors held by the Firm.
       
  14. Default & Consequences Of Default
    1. 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 one half percent (2.5%) per calendar month (and at the Firm’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    2. In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by the Firm.
    3. If the Client defaults in payment of any invoice when due, the Client shall indemnify the Firm from and against all costs and disbursements incurred by the Firm in pursuing the debt including legal costs on a solicitor and own client basis and the Firm’s collection agency costs.
    4. Without prejudice to any other remedies the Firm may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Firm may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions.  The Firm will not be liable to the Client for any loss or damage the Client suffers because the Firm has exercised its rights under this clause.
    5. If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
    6. Without prejudice to the Firm’s other remedies at law the Firm shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Firm shall, whether or not due for payment, become immediately payable in the event that:
      1. any money payable to the Firm becomes overdue, or in the Firm’s opinion the Client will be unable to meet its payments as they fall due; or
      2.  the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
      3. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
         
  15. Security And Charge
    1. Despite anything to the contrary contained herein or any other rights which the Firm may have howsoever:
      1. where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the 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 Firm or the Firm’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that the Firm (or the Firm’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.
      2. should the Firm elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify the Firm from and against all the Firm’s costs and disbursements including legal costs on a solicitor and own client basis.
      3. the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Firm or the Firm’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 15.1.
         
  16. Cancellation
    1. The Firm may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice the Firm shall repay to the Client any sums paid in respect of the Fee. The Firm shall not be liable for any loss or damage whatever arising from such cancellation.
    2. In the event that the Client cancels delivery of the Goods the Client shall be liable for any loss incurred by the Firm (including, but not limited to, any loss of profits) up to the time of cancellation.
       
  17. Construction Contracts Act 2002
    1. The Client hereby expressly acknowledges that:
      1. the Firm 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 Client, and:
        1. the payment is not paid in full by the due date for payment and no payment schedule has been given by the Client; or
        2. a scheduled amount stated in a payment schedule issued by the Client in relation to the payment claim is not paid in full by the due date for its payment; or
        3. the Client has not complied with an adjudicator’s notice that the Client must pay an amount to the Firm by a particular date; and
        4. the Firm has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction contract.
      2. if the Firm suspends work, it:
        1. is not in breach of contract; and
        2. is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Client or by any person claiming through the Client; and
        3. is entitled to an extension of time to complete the contract; and
        4. 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.
      3. if the Firm exercises the right to suspend work, the exercise of that right does not:
        1. affect any rights that would otherwise have been available to the Firm under the Contractual Remedies Act 1979; or
        2. enable the Client to exercise any rights that may otherwise have been available to the Client under that Act as a direct consequence of the Firm suspending work under this provision.
           
  18. General
    1. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
    2. 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.
    3. The Firm shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Firm of these terms and conditions.
    4. In the event of any breach of this contract by the Firm the remedies of the Client shall be limited to damages which under no circumstances shall exceed the price of the Goods.
    5. The Client shall not be entitled to set off against or deduct from the Fee any sums owed or claimed to be owed to the Client by the Firm.
    6. The Firm may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
    7. The Firm 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 Firm notifies the Client of such change.
    8. The provisions of the Contractual Remedies Act 1979 shall apply to this contract as if section 15(d) were omitted from the Contractual Remedies Act 1979.
    9. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
    10. The failure by the Firm to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Firm’s right to subsequently enforce that provision.