TERMS OF TRADE

 

Page & Macrae Ltd trading as Page Macrae Engineering

 

Please find our terms and conditions below:

Ownership
1. Ownership of goods produced or supplied by Page & Macrae Limited (“Page Macrae”), or materials supplied as part of services provided by Page Macrae (“Goods”) shall not pass to the Customer until Page Macrae receives payment in full and the Customer has performed all its other obligations under these Terms and Conditions of Trade (“Terms”).

2. Ownership of all tools and equipment used by Page Macrae in performing any Services for the Customer shall at all times remain with Page Macrae.

Risk
3. Delivery occurs at the time possession of the Goods passes to the Customer (or a person nominated by the Customer) from Page Macrae.  The risk in Goods supplied passes to the Customer on delivery.

Quotation and Acceptance
4. Where Page Macrae provides a written quote for Goods and Services, the quote shall be valid for a period of 30 calendar days from the date of the quote unless withdrawn by Page Macrae prior to acceptance.

5. By instructing Page Macrae to proceed with supplying the Goods and/or Services you are deemed to have accepted the quote and that the supply of the Goods and Services shall be subject to these Terms.

6. Where no quote is provided the price for the Goods and Services shall be as per Page Macrae’s Schedule of Rates applying at the time of delivery.

Price
7. The price for the Goods and/or Services shall be the price stated in the quote or Schedule of Rates (as applicable) provided, subject to any variation agreed in writing.

8. The price for Goods or Services is expressed in New Zealand dollars and excludes GST. GST is payable in addition to the price quoted.

Payment
9. Unless otherwise agreed in writing by Page Macrae, payment for Goods and Services supplied is due immediately upon receipt of Page Macrae’s invoice relating to the Goods or Services. If the Customer’s credit application has been received and approved by Page Macrae, then payment is due by the 20th day of the month following the date of invoice relating to the Goods or Services. Page Macrae will issue invoices monthly for progress claims or upon completion of a job, as applicable.   The Customer shall make the payments without set-off or deduction of any kind. 

10. All invoices issued for services covered by the Construction Contracts Act 2002 shall be issued in the form of a payment claim within the meaning of the Construction Contracts Act 2002.

Default
11. If payment is not made on the due date, then Page Macrae may charge default interest at the rate of 2.5% per month. The interest will be calculated on a daily basis from the date payment was due until the date payment is received by Page Macrae. Any failure or delay by Page Macrae to charge interest on any unpaid account or to exercise any of its rights will not operate as a waiver of those rights.  Page Macrae may apportion payments to outstanding accounts as it sees fit.

Personal Property Securities Act 1999 (“PPSA”)
12. Clause 1 above creates a security interest in the Goods supplied to the Customer. The Customer grants Page Macrae a security interest in all of the Customer’s present and after acquired goods being industrial engineering products, from design through to fabrication, installation, project management supplied from time to time by Page Macrae, as further security for payment and any other of the Customer’s obligations under these Terms.  This shall include but without limitation, all proceeds of such goods and all of the Customer’s present and future rights in relation to such goods and proceeds. The Customer shall not grant any other security interest or any lien over the property and goods that Page Macrae has a security interest in.  The Customer agrees to execute any documents, provide all relevant information and cooperate fully with Page Macrae to ensure that Page Macrae has a first-ranking perfected security interest in the property and goods referred to above, subject to security interests in respect of which a financing statement is registered on the PPSR at the date of the customer’s credit application.  Page Macrae may at any reasonable time enter the Customer’s premises and properties to uplift Goods that Page Macrae has a security interest in.  The Customer shall not grant any other security interest or any lien in either the Goods or in the whole. The Customer waives any rights it may have under sections 114(1)(a), 116, 120(2), 121, 125, 126, 127, 129, 131, 133, and 134 of the PPSA.  The Customer waives its right to receive a copy of any verification statement (as that term is defined in the PPSA) but Page Macrae may provide a copy on request.  The Customer will give Page Macrae prior written notice of a proposed change of its name or address.


Warranty and Limitation of Liability
13. Page Macrae warrants that:
a. The Services shall be carried out in a good and workmanlike manner;
b. Goods supplied and materials used in performing the Services shall be fit for the purpose for which they are required, as notified by the Customer to Page Macrae in writing.

14. Except as set out in these Terms or as provided in any written warranty agreement signed by Page Macrae, any and all conditions, guarantees, warranties or representations which might otherwise be implied by law, trade, custom or otherwise are expressly excluded to the maximum extent permitted by law. In particular, and without limitation:
a.  all implied terms, conditions and warranties contained in the Sale of Goods Act 1908 are expressly excluded;
b. the guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Goods and/or Services from Page Macrae for the purposes of a business in terms of sections 2 and 43 of that Act.

15. Except to the extent that the law prevents Page Macrae from excluding liability and as expressly provided for in clause 16 Page Macrae shall not be liable for any loss or damage or liability of any kind whatsoever (including consequential loss or lost profit or business) whether suffered or incurred by the Customer or another person and whether in contract, or tort (including in negligence), or otherwise and whether such loss or damage arises directly or indirectly from Goods or Services provided by Page Macrae to the Customer.

16. To the extent that Page Macrae is liable for any reason for any loss suffered or liability incurred by the Customer arising from any breach of these Terms or for any other reason, such liability is limited to the lesser of:
a. the price (excluding GST) of the particular Good or Service that caused the loss, damage or injury; or
b. the cost of completing any necessary repairs / remedial work; or
c. the actual loss or damage suffered by the Customer.

17. Any defects in Goods or Services supplied must be notified to Page Macrae in writing within the latter of 14 business days of delivery, or the date on which the defect became or should have become apparent.

18. Page Macrae may, in its discretion, repair or replace any defective Goods or re-perform any defective Services, or refund the amount of those Goods or Services, provided that clause 16 has been complied with and further provided that :
a. the Customer must supply the date and number of any invoice relating to the Goods or Services; and
b. Page Macrae must have a reasonable opportunity to inspect the Goods or Services complained of.
Page Macrae shall have no obligation to remedy any damage or defect caused by:
c. Any wilful act or negligence of the Customer or any other person other than Page Macrae or its agents, employees or subcontractors;
d. Faulty materials or workmanship other than the work or materials provided by Page Macrae;
e. Design faults, errors or discrepancies where Page Macrae was not responsible for design;
f. Unintended use of the Goods or failure to maintain the Goods in accordance with the stated or recommended instructions or requirements provided by Page Macrae.

19. Page Macrae may use and integrate the work of contractors or third parties in the performance of the Services.  Page Macrae shall under no circumstances be responsible for the performance of a contractor or third party where Page Macrae has been instructed by the Customer to use a contractor or third party.

Intellectual Property
20. All intellectual property (including without limitation copyright, patent and design rights, drawings, documents, data, ideas, procedures and calculations) which arises out of or in the course of the production of the Goods or the provision of the Services shall be the exclusive property of Page Macrae, unless otherwise agreed in writing.

21. If any Goods or Services are to be undertaken based on the Customer’s designs or instructions, the Customer warrants that the undertaking of this work by Page Macrae will not cause Page Macrae to infringe any third party’s intellectual property rights and the Customer agrees to indemnify Page Macrae against any action taken by a third party against Page Macrae in respect of any such infringement.

Termination
22. Either party may terminate these Terms with immediate effect if any of the following events occur:
a) The relevant party breaches these Terms and if such breach is not remedied within 3 business days notice from the other party specifying the breach (if such breach is capable of remedy).
b) The relevant party commits acts of bankruptcy or makes an assignment or composition with its creditors.
c) Any of the conditions necessary to render the relevant party liable to be put into liquidation.
d) The relevant party is or becomes unable to pay expenses that fall due or is deemed to be unable to pay such debts as that term is defined in section 287 of the Companies Act 1993 (or any successor legislation) or suspends payment to its creditors or ceases or threatens to cease to carry on its business or convenes a meeting of its creditors to propose a compromise with its creditors.
e) If an application to put the relevant party into liquidation is made or advertised or a resolution is passed or proposed to be passed for the liquidation of that party.
d) The relevant party has a receiver or manager or statutory manager, or administrator appointed.

23. If any of the events in clause 22 occur, in addition to any remedies Page Macrae may have at law, Page Macrae may do one or more of the following:
a) suspend the account and provision of Goods or Services;
b) charge default interest in accordance with clause 11;
c) enter onto the Customer’s premises or other property and repossess any Goods which have not been paid for in full;
d) immediately terminate these Terms.


24. Any termination is without prejudice to the rights of the parties arising prior to termination.

25. Nothing in clauses 22, 23 or 24 affects the operation of any clauses in these Terms which are expressed or implied to have effect after its termination.

Notices
26 Any notice may be given in person, posted or sent by fax or email (or where the Customer is a company, to any of its directors, agents or employees at the Customer’s address).

Privacy of Information
27 The Customer authorises Page Macrae:
a) To collect, retain and use information about the Customer from any person for the purpose of assisting its creditworthiness;
b) to disclose information about the Customer:
i) to any person who guarantees, or who provides insurance, or who provides any credit support, in relation to the Customer’s obligations to Page Macrae;
ii) to such persons as may be necessary or desirable to enable Page Macrae to exercise any power or enforce or attempt to enforce any of its rights, remedies and powers under these Terms.

Variation
28. Page Macrae shall be entitled at any time by notice in writing to vary any provision of these Terms and the Customer shall be bound by such variation.

Costs
29. The Customer must pay Page Macrae’s costs (including legal costs, as between solicitor and client) of and incidental to the enforcement or attempted enforcement of Page Macrae’s rights, remedies and powers under these Terms.

Severance
30.  If any of these Terms is held to be invalid, void, unenforceable or illegal for any reason, such provision shall be deemed to be severed from these Terms and the remaining provisions shall continue in force.

No Waiver
31. A failure or delay in enforcing a right pursuant to these Terms is not a waiver of that right. Any waiver must be in writing and signed by the party granting the waiver.

Assignment
32. The Customer must not assign or subcontract any of its rights, powers or obligations under these Terms.

Force Majeure
33. Unless the Customer and Page Macrae have agreed in writing to a fixed delivery time, then any time frame for delivery of Goods or completion of Services is approximate only and is not deemed to be of the essence.

34. Page Macrae shall not be liable to the Customer whatsoever for any defect, loss, damage or delay caused by strike, lockout, damage to or breakdown of plant, government interference, war, or act of war, storm, tempest, fire, flood, riot, explosion, earthquake, force majeure or any other cause beyond the control of Page Macrae, that impacts on the supply of Goods or Services pursuant to these Terms.

Jurisdiction
35. This Contract shall be governed by the laws of New Zealand and shall be subject to the non-exclusive jurisdiction of New Zealand.

Interpretation
36. In these Terms:
a. Words importing the singular include the plural and vice versa.
b. References to a party include that party's successors, personal representatives, executors, administrators and permitted assigns.
c. References to legislation include as amended, re-enacted or substituted from time to time.