Morgan Engineering & Marine (2021) Limited – (referred to herein as “we” or “us”) agree to provide structural steel fabrication (“the Goods”) site erection and other services (“the Services”) to you, the Customer, in return for the payment of the price for those Goods and Services according to these Terms and Conditions. Placing any order with us, acceptance of delivery or receipt of any Goods or Services will (despite any statement to the contrary by you or your employees or agents) constitute acceptance of these Terms and Conditions.
1.1 All prices exclude GST, any other applicable taxes and duties and insurance / freight / delivery / handling charges unless these are expressly included in the price. You agree to pay these items (as applicable) in addition to the price, whether they are imposed before or after your order.
1.2 Alterations to the original specifications will result in additional charges unless otherwise agreed in writing.
2.1 You may request a quotation from the Company which shall set out the price, specifications and quantity and nature of the Goods and Services to be supplied. The quotation is valid for 30 days from the date it is issued. If the quotation is accepted by the Customer, then the Customer must place an order no later than the quotation’s validity period of 30 days.
2.2 All quotations are exclusive of delivery charges, insurance, port charges, detailing services and other costs and taxes unless otherwise expressly stated. The quotation shall be deemed to incorporate the Customer’s instructions, both written and verbal. The Customer is solely responsible for exercising due care and attention when checking quotations in a timely way before placing order and further work proceeds.
2.3 Quotations are based on current costs and shall always be subject to amendment with regards to any cost increases for the Company after the quotation date.
2.4 Alterations to the original specifications in the quotation will result in additional charges unless agreed in writing otherwise.
2.5 All additional requests and items not listed in the quotation will be subject to a written variation and will proceed only after a variation order is received from the Customer or their authorised representative and accepted by the Company.
2.6 While every effort is made to ensure the accuracy of the quotation, it is Customer’s responsibility to confirm that all product selections, specifications, quantities, and details are correct before requesting a quotation from the Company for pricing or ordering purposes. The Company is not liable for any errors or omissions in the event that the Customer did not provide an accurate or complete list of product selections, quantity and details of the Goods and Services required when requesting the quotation.
2.7 Should the Customer require any Services to be provided urgently, during night time, weekend or public holidays, which Services shall otherwise be provided during normal workdays and have been quoted as such, double rate will be applied for such Services and shall be deemed to be variations.
2.8 Should the Customer fail to provide clear access to all work faces or limit the Company’s ability to use its access (moving and lifting) equipment while providing the Services, double rate will be applied for the time under such restricted conditions.
3. Deposits, Payment and Default
3.1 Full payment must be made in cleared funds prior to delivery of your order and/or immediately upon completion of the Services unless we agree otherwise in writing.
3.2 We may require a 30% deposit to be paid in cleared funds before we accept an order from you.
3.3 Any deposit is non-refundable except in circumstances where the Company is unable to undertake the supply. If we are unable to supply goods or services due to your default, or due to other reasons beyond the Company’s reasonable control or which were not reasonably foreseeable at the time the Company’s quote was provided, then the Company may deduct its reasonable costs incurred to that date from the deposit prior to refunding the balance of the deposit to you.
3.4 Progress payments will be issued at the end of calendar month.
3.5 All payments are due strictly by the 20th day of the month following the date of invoice. You must not withhold payment or make any deductions of any nature whether by way of set off, counterclaim or otherwise from any amount you owe us. We can alter the terms of payment with effect from the date that we notify you of such change.
3.6 Alternative payment methods may be offered to Customers with satisfactory credit history at the Company’s sole discretion. Customers may submit a credit application to the Company’s accounting department to request alternative payment terms. Orders for which alternative payment terms are requested will be placed on hold pending credit approval. Credit approval is normally dependent on the directors and or major shareholders of any Customer that is a company, providing their personal guarantee as provided for in our standard credit application form.
3.7 Payments can be made by EFTPOS or by direct credit, or by any other method as agreed to between the Customer and us.
3.8 Failure to pay by the due date shall be in breach of trading terms and we may, without prejudice to any other rights or remedies we may have, charge default interest at a rate of 18% per annum calculated daily until the account is paid in full.
3.9 You agree to pay, on demand, all costs incurred by us (including legal costs on a solicitor-client basis and debt collection costs) in the recovery or attempted recovery of unpaid moneys and/or the enforcement of these Terms and Conditions or the Security Interest contained in these Terms and Conditions.
3.10 Discounts may be removed from accounts which are overdue.
3.11 For accounts in dispute, the undisputed portion of the account must be paid in full in accordance with these terms & conditions.
3.12 If we at any time deem the creditworthiness of the Customer unsatisfactory, we may demand security for payment for the Goods and/or Services. We may suspend or terminate any agreement for supply. In that event payment for all Goods and/or Services delivered/completed up to the date of such suspension or termination shall immediately become payable.
3.13 We can impose a credit limit on you at any time and alter it at our sole discretion with effect from the date that we notify you of such change. If you exceed your credit limit, we can refuse to supply Goods and/or Services to you.
3.14 If you make default in payment or in taking delivery in time, we shall be entitled to terminate any agreement with you so far as it is unfulfilled, without prejudice to our right to immediately recover all sums owing to us in respect of deliveries already made and services already provided. Upon termination of the agreement, we shall be entitled to dispose of the balance of the goods agreed for and you shall indemnify us for any loss in price incurred by us on realisation against the price at which such goods were agreed to be bought by you.
3.15 We shall be entitled to assign to any other person or company all or any part of your indebtedness to us, as well as any guarantee of payment and the assignee shall be entitled to claim all or part of the indebtedness and shall have the same rights of recovery as the Company.
GOODS & SERVICES
4. Delivery and Risk
4.1 Risk in any Goods sold to you will pass to you on Delivery. Ordinarily we arrange transport to your delivery address and will include freight charges in the amount payable by you.
4.2 “Delivery” shall occur at the time when the Goods are delivered to the address requested or advised by you.
4.3 Any time stated for delivery is an estimate only and is not in any way an essential term of agreement between us.
4.4 When acknowledging receipt of the Goods, the Customer must qualify the acknowledgment at that time, in the event of any shortage or damage of the Goods received.
4.5 Delivery will still be deemed to have been made in the event of your refusal or failure to take or accept delivery. Off-loading of the Goods shall be the responsibility of the Customer. The Company reserves the right to deliver the goods by instalments and each instalment shall be deemed to be a separate agreement subject to the same conditions as the main contract. If the Company makes defective delivery of or fails to deliver one or more instalments of Goods, this shall not entitle the Customer to repudiate the main agreement or delay payment for the completed delivery of Goods and Services
4.6 The Company will not be liable for any non-delivery or late delivery caused by any factors beyond its control, and you will still be liable to accept and pay for the Goods so delivered within a reasonable time.
4.7 Services are deemed completed to the applicable stage upon us delivering an invoice for payment to you. This is without prejudice to our ability to pass on any third-party invoices to you that are issued after the date of our invoice.
4.8 You are responsible for ensuring that any truck or vehicle making delivery can safely and efficiently access and exit the area where the Goods are to be delivered. You must notify the driver of any workplace safety hazards e.g. overhead power lines. Please bear in mind the size of the vehicle and the weight of the order, ensure that access is all clear and there is a sufficient turning circle. Failure to provide adequate access for delivery may lead to additional costs for your account and a delay in delivery.
4.9 Where you fail to uplift or accept Goods by the delivery date specified or such later date as we agree in writing, you shall pay us reasonable storage costs until such time as you uplift or accept delivery of those Goods, such costs to be determined by us. In the event the Goods remain on our property or with a carrier due to your failure to make payment or accept the Goods or at your request we agree to delay delivery; then all risk in the Goods shall be borne by you from the date of your failure or request (as the case may be).
4.10 If you engage us to undertake any Services on any property other than our usual business address, then you must ensure that our personnel have reasonable access to the property and that you are compliant with all of your health and safety obligations under the Health and Safety at Work Act 2015 (and any replacement legislation).
4.11 The Company shall comply with the Health and Safety at Work Act 2015 requirements. If working conditions require additional safety equipment, then the cost of this will be reflected in the quote we provide you.
5. Discrepancies and Defective Goods
5.1 You agree to let us know in writing within 7 days of delivery of any discrepancy in your order when delivered or any damage or defect (“your claim”) in the Goods. You must clearly state the problem in writing. After that time you agree you have accepted that the order as delivered is correct and in order.
5.2 If we receive notice of your claim within 7 days of delivery of the Goods (but not otherwise) and the Goods are damaged or defective then we will make every endeavor to remedy the problem at our sole option by replacing the Goods or refunding you the price paid for the particular defective or damaged Goods the subject of your claim, provided however that we will not be responsible for any damage or defect where you or people you are responsible for have caused it. We reserve the right to inspect the Goods at your premises to verify and assess any claim that they are defective or damaged or to have an authorised person do this for us.
5.3 You accept that where we make or supply Goods for you that they are not in any way defective if they are within commonly accepted industry standards for variance with exact measurements or tolerances.
6. Security Interest
6.1 Ownership of all Goods supplied to you by us will not pass upon delivery but will remain with us until we have received total payment in clear funds of all moneys owing by you to us (whether relating to those Goods, to the supply of Services or to any other personal property supplied). We will hold a Security Interest in all Goods supplied to you for payment of those moneys.
6.2 Until all moneys due to us are paid by you, you agree to act as a fiduciary of us and that you will:
(a) Not sell, charge or part with possession of the Goods, otherwise than for their full values in the ordinary course of business;
(b) Not alter, obliterate, or deface the Goods and will not alter, obliterate, deface, cover up, or remove any identity mark indicating that the Goods are our property.
(c) Store the Goods in such manner that they are clearly identifiable as our property and must keep separate records of the Goods;
(d) Hold the proceeds of the resale of the Goods in trust for us, in a separate and identifiable manner (if applicable).
6.3 At our request, you will promptly deliver, execute or do (or cause to be executed, delivered or done) any documents, agreements, agreements, deeds or other action that we may require from time to time to give effect to these Terms and Conditions, including without limitation doing all such things as we may require to ensure that the Security Interest created under these Terms and Conditions constitutes a perfected Security Interest over the Goods. This includes, but is not limited to, providing any information we request to complete a financing statement, a financing change statement or a renewal for the Personal Property Securities Register.
6.4 You waive any right to receive a verification statement under the Personal Property Securities Act 1999 (“PPSA”).
6.5 Nothing in sections 114(1)(a), 117(1), 120, 122 ,123, 133 and 134 of the PPSA shall apply to these Terms and Conditions. Your rights as a debtor in sections 116, 119, 120(2), 121, 125-127, 129 and 132 of the PPSA shall not apply to these Terms and Conditions.
7. Exclusion of Warranties
7.1 You acknowledge that the Goods and Services acquired from us are not of a kind ordinarily acquired for personal, domestic or household use or consumption and that you are acquiring them for the purposes of a business. Accordingly, it is agreed that, to the maximum extent permitted by law, the provisions of Consumer Guarantees Act 1993, or any other relevant consumer protection legislation, do not apply to this Agreement.
7.2 To the maximum extent permitted by law all terms, warranties or representations whether statutory or otherwise and whether express or implied, oral or written as to the state, merchantability, description quality, purpose or fitness of the Goods are hereby expressly excluded.
7.3 No agent or representative of the Company is authorized to make any representations, warranties, conditions, or agreements not expressly set forth in the quotation and the Company is not in any way bound by any such unauthorised statements.
8. Limitation of Liability
8.1 We shall not be liable to you for any loss or damage arising from any delay or failure to perform our obligations due to a matter beyond our reasonable control.
8.2 We and our employees and agents shall not be liable to you for any claim for breach of Agreement (except as provided in clause 8.3 below) or statute or breach of duty in Tort (including negligence) or for any claim in Equity or otherwise at law.
8.3 Your sole remedy against us shall be limited to breach of agreement and notwithstanding any relief or remedy to which you or any other person may have been entitled under the Contract and Commercial Law Act 2017 or at law or in equity, the extent of any such liability shall be limited to an amount equal to the price charged for the particular Goods or Services to which the breach relates or at our discretion the provision of replacement goods. We will not, in any case, be liable for any other losses or damages whether general, exemplary, punitive, direct, indirect or consequential, including loss of business profits.
8.4 No action or claims may be brought against us or be enforceable unless written notice of such claim is given to us within 7 (seven) days of delivery of the Goods or provision of the Services to you.
8.5 Notwithstanding anything herein no employee, agent or director of the Company will be liable to you for breach of any duty of care in tort (including negligence), agreement, equity or otherwise in relation to the performance of obligations under this agreement or in relation to the subject matter of this agreement
9.1 Subject only to any obligatory statutory rights, no cancellation, addition, deletion, amendment, or variation of any kind of or to any agreement of supply between us may be made except with the consent of the Company in writing.
10.1 If you do not pay any monies owed to us (“the unpaid monies”) within 7 days of the due date, we may (without prejudice to any of our other rights):
(a) Demand immediate payment of all or any part of any moneys owing (whether or not then due);
(b) Charge penalty interest at a rate of 18% per annum calculated on a daily basis on the unpaid monies from the due date until payment in full is made;
(c) Withhold without notice delivery or supply of Goods or Services ordered by you;
(d) Cancel this agreement and seek damages;
(e) Recover any Goods delivered to you. You agree we may enter your premises or any other place where the Goods are stored, or where we reasonably believe the Goods may be stored, and take possession of and sell the Goods, even if we do not have priority over other persons having a Security Interest in the Goods. Sections 108, 109, and 120 of the PPSA do not apply to the extent that they are inconsistent with this clause.
10.2 Where you have only partly paid for the Goods and we recover them from you, we will refund the amounts you have paid from the proceeds of resale (if any) after deducting all or any other moneys owing to us (whether or not then due) and all costs incurred by us.
11.Use of Information
11.1 You agree that we may obtain information about you from you or any other person (including any credit or debt collection agencies) in the course of our business, and you consent to any person providing us with such information.
11.2 You agree that we may give any information we have about you relating to your credit worthiness to any other person, including any credit or debt collection agency, for credit assessment and debt collection purposes.
11.3 If you are an individual, i.e. a natural person, you have rights under the Privacy Act 1993 to access and request the correction of any personal information that we hold about you.
12.1 These terms apply to all transactions where we supply Goods or Services to you. If there is any inconsistency between these terms and any order submitted by you or any other arrangement with us, these terms prevail unless otherwise agreed by us in writing.
12.2 You may not transfer or assign all or any of your rights or obligations under this agreement without our prior written consent.
12.3 In the event that any part or parts of these Terms and Conditions shall be held illegal or null and void by any court or administrative body of competent jurisdiction, such determination shall not affect the remaining terms which shall remain in full force and effect as if such part or parts held to be illegal or void had not been included in these Terms and Conditions.
12.4 Our agreement with you and its terms are governed by, and shall be construed in accordance with, the laws of New Zealand. You agree to submit to the exclusive jurisdiction of the New Zealand Courts.
12.5 These terms and conditions of trade between us are the entire agreement between us (other than individual sales orders as to quantity and pricing) and supersede or replace all prior agreements between us.
12.6 All know how, copyright, trademarks and other technical information, knowledge, or processing methods at any time transmitted in any way by the Company to you shall remain the property of the Company and shall be considered confidential by the Customer which shall not use them for any purpose nor sell, transfer or divulge them in any manner to anyone without the prior written consent of the Company. The Customer shall indemnify and keep the Company indemnified against all costs, damages and claims arising from the Customer’s failure to comply with the requirements of this clause.