Terms of Trade

MAT CLARK PLUMBING LTD – TERMS AND CONDITIONS OF TRADE

 

1. DEFINITION

  1. 1.1  “MCP” shall mean Mat Clark Plumbing Ltd, or any agents or employees thereof.

  2. 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 MCP.

  3. 1.3  “Products” shall mean:

    1. 1.3.1  all Products of the general description specified on the front of this agreement and supplied by MCP to the customer, and all Products supplied by MCP to the customer, and all inventory of the customer that is supplied by MCP, and all Products supplied by MCP and further identified in any invoice issued by MCP to the customer, which invoices are deemed to be incorporated into and form part of this agreement; and

    2. 1.3.2  The above descriptions may overlap but each is independent of and does not limit the other all Products that are marked as being supplied by MCP or that are stored by the customer in a manner that enables them to be identified as having been supplied by MCP, and all the customers present and after acquired Products that MCP has performed work on or to or in which goods or materials supplied or financed by MCP have been attached or incorporated.

  4. 1.4  “Products and Services” shall mean all Products, Services, goods and advice provided by MCP to the customer and shall include without limitation all plumbing services and the supply of associated products and all charges for 
 labour hire charges, insurance charges, or any fee or charge associated with the supply of Products and Services from MCP to the customer.

  5. 1.5  “Price” shall mean the cost of the Products and Services as agreed between MCP and the customer and includes all disbursements e.g. charges MCP pay to others on the customer’s behalf subject to Clause 4 of this contract.

2. ACCEPTANCE

2.1 Any instruction received by MCP from the customer for the supply of Products and Services shall constitute a binding contract and acceptance of the terms and conditions contained herein.

3. COLLECTION AND USE OF INFORMATION

  1. 3.1  The customer authorises MCP to collect, retain and use any information about the customer, for the purpose of assessing the customer’s credit worthiness, enforcing any rights under this contract, or marketing any Products and Services provided by MCP to any other party.

  2. 3.2  The customer authorises MCP to disclose any information obtained to any person for the purpose set out in clause 3.1.

  3. 3.3  Where the customer is a natural person the authorities under clause 3.1 and 3.2 are authorities or consents for the purpose of the Privacy Act 1993.

4. PRICE

  1. 4.1  When 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 MCP at the time of this contract.

  2. 4.2  The price may be increased by the amount of any reasonable increase in the cost of supply of the Products and Services that is beyond the control of MCP between the date of the contract and delivery of the Products and Services.

5. PAYMENT

  1. 5.1  Payment for Products and Services shall be made in full on or before the 20th day of the month following the date of the invoice (“the due date”) unless specifically sated to the contrary.

  2. 5.2  Interest may be charged on any amount owing after the due date at the rate of 5% per month or part month.

  3. 5.3  Any expenses, disbursements and legal costs incurred by MCP in the enforcement of any rights contained in this 
contract shall be paid by the Customer, including any reasonable solicitor’s fees or debt collection agency fees.

  4. 5.4  Receipt of a cheque, bill of exchange or other negotiable instruments shall not constitute payment until such 
negotiable instrument is paid in full.

  5. 5.5  A deposit may be required.

6. QUOTATION

  1. 6.1  Where a quotation is given by MCP for Products and Services:

    1. 6.1.1  Unless otherwise agreed the quotation shall be valid for thirty (30) days from the date of issue;

    2. 6.1.2  The quotation shall be exclusive of goods and services tax unless specifically stated to the contrary;

    3. 6.1.3  MCP reserves the right to alter the quotation because of circumstances beyond its control; and

    4. 6.1.4  Your acceptance of our quotation/offer must be confirmed in writing, signature or verbally prior to 
commencement of work.

  2. 6.2  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. AGENCY

7.1 The Customer authorises MCP to contract either as principal or agent for the provision of Product and Services that are the matter of this contract.

7.2 Where MCP enters into a contract of the type referred to in clause 7.1 it shall be read with and form part of this agreement and the Customer agrees to pay any amounts due under that contract.

8. TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999)

  1. 8.1  Title in any Products and Services supplied by MCP passes to the Customer only when the Customer has made payment in full for all Products and Services provided by MCP and of all other sums due to MCP by the Customer on any account whatsoever. Until all sums due to MCP by the Customer have been paid in full, MCP has a security interest in all Products and Services.

  2. 8.2  If the Products and Services 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 Products and Services shall remain with MCP until the Customer has made payment in full for all Products and Services and where those Products and Services are mixed with other property so as to be part of or a constituent of any new Products and Services , title to these new Products and Services shall be deemed to be assigned to MCP as security for the full satisfaction by the Customer of the full amount owing between MCP and the Customer.

  3. 8.3  The Customer gives irrevocable authority to MCP 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 MCP 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. MCP 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 or otherwise in any way whatsoever unless by statute such liability cannot be excluded. MCP 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 MCP reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.

  4. 8.4  Where Products and Services are retained by MCP pursuant to clause 8.3 the Customer waives the right to received notice under s.120 of the Personal Property Securities Act 1999 (”PPSA”) and to object under s.121 of the PPSA.

  5. 8.5  The following shall constitute defaults by the Customer:

    1. 8.5.1  Non-payment of any sum by the due date;

    2. 8.5.2  The Customer intimates that it will not pay any sum by the due date;


    3. 8.5.3  Any Products and Services are seized by any other creditor of the Customer or any other creditor intimates that it intends to seize Products and Service;

    4. 8.5.4  Any Products and Services in the possession of the Customer are materially damaged while any sum due from the Customer to MCP remains unpaid;

  1. 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 distains against any of the Customer’s asserts; and

  2. 8.5.6  A Court judgement is entered against the Customer and remains unsatisfied for seven (7) days any material adverse change in the financial position of the Customer.

  1. 8.6  If the Credit Repossession Act applies to any transaction between the Customer and MCP, the Customer has the rights provided in that Act despite anything contained in these terms and conditions of trade.

  2. 8.7  Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that: 8.7.1 these terms and conditions constitute a security agreement for the purpose of the PPSA: and 8.7.2 a security interests taken in all Goods previously supplied by MCP to the customer (if any) and 
all Goods that will be supplied in the future by MCP to the Customer.

  3. 8.8  The Customer undertakes to:

    1. 8.8.1  Sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which MCP may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;

    2. 8.8.2  Indemnify, and upon demand reimburse MCP for all expenses incurred in registering a financing statement or financing change of statement on the Personal Property Securities Register or releasing any Goods charged thereby;

    3. 8.8.3  Not register a financing change statement or a change demand without the prior written consent of MCP; and

    4. 8.8.4  Immediately advise MCP 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.

  4. 8.9  MCP and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.

  5. 8.10  The Customer waives the right as a debtor under sections116,120(2),121, 125, 126, 127, 129, 131 and 132 of the PPSA.

  6. 8.11  Unless otherwise agreed to in writing by MCP the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.

  7. 8.12  The Customer shall unconditionally ratify any actions taken by MCP  under clauses 8.7 to 8.11.

9. SECURITY INTEREST FOR SERVICE PROVIDES

9.1 The Customer give MCP a security interest in all of the Customers present and after – acquired property that MCP has performed services on or to or in which goods or materials supplied or financed by MCP have been attached or incorporated.

10. GENERAL LIEN

  1. 10.1  The Customer  agrees that MCP may exercise a general lien against any Products and Services or property belonging to the Customer that is in the possession of MCP for all sums outstanding under this contract and any other contract to which the Customer and MCP are parties.

  2. 10.2  If the lien is not satisfied within seven (7) days or the due date MCP may, having given notice of the lien, at its option either.

11. DISPUTES

  1. 11.1  Remove such Products and Services and store the min such a place and in such a manner as MCP shall think fit and proper and at the risk and expense of the Customer.

  2. 11.2  Sell such Products and Services, or part there of upon such terms as it shall think fit and apply the proceeds in or towards discharge of the lien and costs of sale without being liable to any person for damage caused.

  3. 11.3  No claim relating to Products and Services will be considered unless made within seven (7) days of delivery.

12. LIABILITY

  1. 12.1  The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or impose obligations upon MCP 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 terns imposed on MCP, MCP’s liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statue.

  2. 12.2  Except as otherwise provided by clause 12.1 MCP shall not be liable for:

    1. 12.2.1  Any loss or damage of any kind whatsoever, arising from the supply of Products and Services by MCP to 
the Customer, including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Products and Services provided by MCP to the Customer;

    2. 12.2.2  The Customer shall indemnify MCP against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing in this clause whether caused or arising as a result of the negligence of MCP or otherwise brought by any person in connection with any matter, act, omission, or error by MCP its agents or employees in connection with the Products and Services; and

    3. 12.2.3  If, contrary to the disclaimer of liability contained in these terms and conditions of trade, MCP is deemed to be liable to the Customer, following and arising from the supply of Services by it to the Customer, then it is agreed between MCP and the Customer that such liability is limited in its aggregate to $500.

13. CONSUMER GUARANTEES ACT

13.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where The Customer acquires Products and Services from MCP for the purpose of a business in terms of section 2 and 43 of the Act.

14. PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES

14.1 If the Customer is a company or trust, the director(s) or trustee(s) signing this contract, in consideration for MCP 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 MCP the payment of any and all monies now or hereafter owed by the Customer to MCP and indemnify MCP 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 contact and for payment of all sums due hereunder.

15. WARRANTY

  1. 15.1  For Goods not manufactured by MCP the warranty shall be the current warranty provided by the manufacturer of the Goods. MCP 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.

  2. 15.2  The conditions applicable to the warranty given on Goods and supplied by MCP are contained on the “warranty card” that will be supplied with the Goods.

  3. 15.3  On the case of second hand Goods, the customer acknowledges that He/She has had full opportunity to inspect the same and that He/She accepts the same with all faults and that no warranty is given by MCP as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. MCP shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.

16. MISCELLANEOUS

  1. 16.1  MCP shall not be liable for delay or failure to perform its obligations if the cause of the delay is beyond its control.

  2. 16.2  Failure by MCP 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 MCP has under this contract.

  3. 16.3  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.

  4. 16.4  The Construction Contracts Act 2002 applies where applicable.

  5. 16.5  MCP shall been titled to rely on the accuracy of, and shall not be obliged to check, any plans, specifications and other 
information supplied by the customer. MCP shall bear no responsibility for any goods supplied in compliance with those plans and specifications.