Terms & Conditions – NZ
Modtec Industries Terms & Conditions.
1 The “Customer” includes any entity either issuing a purchase order, or identified as the Hirer on the hire agreement, or that has requested preparatory work be done prior to placing an order.
2 Any instructions received by Modtec Industries Ltd (hereafter referred to as “Modtec”) from the Customer for the supply of products and services shall constitute a customer order, and is subject to Modtec’s acceptance.
3 Modtec will confirm all accepted orders in writing, and only when all details are agreed will the order become a contract to supply.
4 The Customer is liable for all costs of cancellation of any order or part thereof.
5 All confirmed orders become part of the agreement between Modtec and the Customer.
6 If the Customer has an approved and current credit account with Modtec, payment for supplied goods and services shall be made on or before the 20th of the month following invoice date, unless otherwise agreed in writing. In all other cases payment in full is required before delivery.
7 Interest may be charged on any amount owing after the due date at the rate of 2% per month or part month.
8 Any expenses, disbursements, collection and/or legal costs incurred by Modtec in attempting to recover overdue debt, will be payable by the Customer and added to the amount to be collected.
9 Receipt of a cheque shall not constitute payment until it has cleared.
10 Modtec reserves the right to withdraw or refuse credit facilities or to require payment of a deposit before accepting an order.
11 Modtec may suspend work in progress or withhold delivery if payment is late for previously supplied products or services.
12 Modtec may in its discretion allocate any payment received from the Customer against any invoice or debt owed by the Customer to Modtec.
13 If Modtec offers a prompt payment discount then that discount shall not be granted if payment is not received on time, and the full invoice amount will be due and payable by the Customer.
14 No amount shall be withheld or set-off or deducted from any payment due to Modtec without prior written agreement from Modtec.
Extent of Supply
15 In the case of bulk supply of castings, the customer will accept as complete delivery within +/- 10% of the ordered quantity.
Delivery and Risk
16 Modtec quotations are ex-works unless specified otherwise. This means delivery takes place, and risk passes, at the time Modtec confirms to the Customer that the products are ready for collection from Modtec’s premises.
17 Modtec will use its best endeavours to deliver on time but shall have no liability whatsoever if unable for any reason to do so.
18 Packaging and shipping methods and materials may be recommended by Modtec, but the decision, responsibility, and any resulting liability rests solely with the Customer.
19 Deliveries required in less than 20 working days from order may incur a premium charge for disrupting production queues.
20 In lieu of a carters note, any person collecting products will be required to sign for them as evidence of receipt, in good condition, by the Customer.
21 Claims for damaged goods must be advised within seven (7) days of receipt of goods, otherwise it cannot be assumed goods were delivered in that condition. This timeframe does not apply to manufacturing defects. In all instances of damage
or defect, Modtec will require a sample be returned to identify the problem to avoid re-occurrence.
22 Modtec retains title and ownership and a purchase monies security interest (“PMSI”) in all products and services until all accounts are paid in full.
23 If such products are sold by the Customer prior to paying for them, and/or if such products become constituents of other goods, then title to these new products shall be deemed to be assigned to Modtec as security and the proceeds of their sale shall be the property of Modtec.
24 The Customer gives irrevocable authority to any agents or employees of Modtec to enter any premises of the Customer at any reasonable time to inspect, or after default by the Customer, to remove and repossess any products or property into which products are believed to be attached or incorporated. The Customer shall indemnify Modtec, its agents and employees, from any costs, damages, expenses or losses incurred by the Customer or any third party as a result of this action. This action does not negate the Customer’s debt to Modtec, but Modtec may credit the
Customer’s account with any surplus of resale proceeds over repossession, depreciation, and resale costs.
25 Any of the following shall constitute default by the customer:
- Non-payment of any sum by the due date.
- The Customer indicates that it will not pay any sum by the due date.
- Goods are seized by any other creditor of the Customer, or any other
creditor indicates that it intends to seize goods.
- Any products in the possession of the Customer are materially damaged while
any sum due from the Customer to Modtec remains unpaid.
- 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
- 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.
26 Where products are retained by Modtec pursuant to clause 24, the Customerwaives the right to receive notice under s.120 of the Personal Property Securities Act 1999 (“PPSA”) and to object under s.121 of the PPSA.
27 The Customer shall not allow any other party a security interest in the products that Modtec either still owns or has a security interest in.
28 The Customer shall do all things requested by Modtec that are required to perfect or maintain any security interest, promptly and at the Customer’s cost.
29 The Customer agrees that Modtec may exercise a general lien against any products or services, tooling or property belonging to the Customer that is in the possession of Modtec until the Customer has paid in full all amounts owing to Modtec.
30 If the lien is not satisfied within seven (7) days of the Customer being notified of the lien, Modtec may sell, use, or scrap such items and apply the proceeds towards discharge of the lien and costs of sale. Any surplus proceeds will be the property of the Customer. The Customer indemnifies Modtec against any claims, proceedings, or loss of any kind that results from this action.
Copyright and Intellectual Property
31 Modtec owns and has copyright in all designs, drawings, tools, jigs, processes, specifications, systems, and any other intellectual property that has been advanced by Modtec, except where the Customer has been clearly invoiced and has paid in full for specific intellectual property.
32 The Customer, its agents, employees, and representatives will forever keep confidential all Modtec intellectual property.
33 Where Modtec has followed a design or instruction furnished or given by the Customer, the Customer shall forever indemnify Modtec against any proceedings or claims and all direct and indirect damages, penalties, costs and expenses that may arise due to infringement (by the use of those designs or instructions) of a patent, trademark, registered design or common law right.
Extent of Liability
34 For clauses 35 to 41 inclusive, the definition of “Modtec” includes all Modtec directors, employees, agents, consultants, advisers, and representatives.
35 The Customer shall not rely on any representation, statement or warranty made by or on behalf of Modtec regarding the fitness for purpose of the products.
36 All warranties, conditions, or guarantees implied by law are minimised or excluded to the extent permitted by the relevant statute.
37 Without written advice to the contrary, the Customer warrants that products are acquired for business purposes and the Consumer Guarantees Act 1993 is excluded.
38 The maximum liability of Modtec to the Customer for direct or consequential loss or damage due to defective product, or for any action or claim arising under these terms, shall be the value that Modtec has invoiced to the Customer for that defective product.
39 Modtec shall not be held liable for any direct or consequential loss or damage that results from improper use, unintended application, overloading or mistreatment of Modtec designed product.
40 Modtec shall not be held liable for any direct or consequential loss or damage that results from failure of Modtec product that Modtec has not designed and tested and approved.
41 The Customer shall forever indemnify Modtec from any third party claims for direct or consequential loss or damage caused by or involving Modtec supplied product.
42 Delay by Modtec to enforce any of these terms and conditions shall not be deemed to be a waiver of any of these terms and conditions or rights, nor shall it be deemed a waiver of Modtec’s right to enforce should matters remain unsettled.
43 If any provision of this document shall be invalid, void, illegal, or unenforceable, then the validity, existence, legality, and enforceability of the remaining provisions shall not be affected, prejudiced, or impaired. In such cases the Customer shall allow Modtec to amend such provision so that it becomes valid, legal, and enforceable.
44 These conditions shall be governed by and construed in accordance with the laws of New Zealand. Should any dispute require litigation the Customer agrees that only New Zealand courts will have jurisdiction.
45 These terms and conditions of trade shall apply to all Products and Services supplied to the Customer and shall take precedence over any terms that may be offered by the Customer. These terms and conditions may only be varied by the express written agreement of Modtec.