TERMS & CONDITIONS

TERMS AND CONDITIONS OF TRADE – GOODS

 

The terms and conditions are laid out below or you can download a document here.

1. Definitions
In these Terms and Conditions of Trade:
“Account” means the Customer’s account with the Vendor.
“Customer” means the person or entity making the application or any person acting with
ostensible authority on behalf of the Customer.
“Goods” means goods supplied by the Vendor to the Customer at any time.
“Guarantor” means any party executing a guarantee of the Account with the Vendor.
“Order” or “Orders” means the order or orders of the Customer to the Vendor to supply
Goods.
"PPSA" means the Personal Property Securities Act 1999.
“Vendor” means Monkeytoe Systems Limited or associated entities.
2. Orders
Orders will be on such forms or in such manner as the Vendor may require from time to
time.
3. Acceptance
Each Order shall constitute acceptance by the Customer of these Terms and Conditions of
Trade.
4. Prices
Prices are subject to change without notice. All Orders will be charged at prices prevailing
at the date of delivery of the Goods.
5. Delivery
Where the Order makes provision for delivery then delivery shall take place at the place
stated in the Order. If no place is indicated then delivery shall be made at the physical
address of the Customer set out in the application.
6. Time of Performance
The Vendor shall not be responsible for any delay in delivery of the Goods outside his
control e.g. procurement supply issues, freight timelines & products damaged in freight.
The Customer shall not be entitled to cancel orders because of any such delay.
Dates for delivery are given in good faith and are not to be treated as a condition of sale or
purchase. Delivery by the Vendor to a carrier is deemed to be delivery to the Customer.
The vendor accepts exemption from the above conditions should the following occur:
a) The vendor has failed to inform the Customer of extended delays, 5 working
days ahead of expected and agreed delivery dates
b) The product has arrived damaged and too late to replace or repair, to be of
beneficial use to the Customer
7. Terms of Payment.
Payment for all goods shall be on or before delivery unless alternative arrangements have
been made with the vendor in writing, in which case the following provisions shall apply.
a) Unless otherwise specified, payment for all Goods shall be made no later than the
20th day of the month following supply.
b) An administration fee may be charged on all overdue amounts in addition to any
other charges pursuant to this clause.
c) Interest will accrue on all amounts overdue at the rate of 2.5% per month and will
be calculated on a day by day basis until payment is made in full.
d) All costs of or incurred by the Vendor as a result of a default by the Customer
including but not limited to administration charges, debt collection costs and legal
costs as between solicitor and client shall be payable by the Customer.
e) If the Customer defaults in any payment or commits any act of bankruptcy or any
act which would render it liable to be wound up or if a resolution is passed or
proceedings are filed for the winding up of the Customer or if a receiver is appointed
for all or any assets of the Customer, the Vendor may cancel any Order without
prejudice to any other rights it may have and payment for all completed Orders shall
immediately become due.
8. Quotation
Where a quotation is given by the Vendor for the supply of Goods:
(a) unless otherwise agreed the quotation shall be valid for thirty (30) days from the date
of issue;
(b) the quotation shall be exclusive of Goods and Services Tax unless specifically stated to
the contrary;
(c) The Vendor reserves the right to alter the quotation because of circumstances beyond
its control.
9. Errors or Omissions
Clerical errors or omissions, whether in computation or otherwise in the quotation,
acknowledgement or invoice shall be subject to correction.
10. Risk
Where the vendor has arrange freight risk shall pass to the customer on delivery, otherwise
from the time of dispatch to the Customer by the Vendor, risk in all Goods supplied shall
pass to the Customer and any loss, damage or deterioration to the Goods shall be borne by
the Customer. The Customer shall notwithstanding any loss, damage or deterioration to
the Goods remain liable to pay for the Goods.
11. Ownership/General Lien
(a) The Vendor shall retain ownership of all Goods supplied until it receives payment in
full of all amounts owing by the Customer for all Orders.
(b) If any of the Goods are incorporated in or used as material for other goods before
payment is made ownership in the whole of the other goods shall be and remain with
the Vendor until payment is made. The Vendor’s Security Interest in the Goods shall
continue in the terms of section 82 of the PPSA.
(c) The Vendor shall have a right to stop and retrieve the Goods in transit whether or not
ownership has passed.
12. Ownership
Until payment is made by the Customer, the Customer agrees to:
(a) ensure the Goods are readily identifiable at all times as the property of the Vendor;
(b) hold the Goods as trustee for the Vendor and will deal with the Goods for and on
behalf of the Vendor (but will not hold the Customer out as an agent to any third
parties);
(c) if the Goods are re-sold, the proceeds of re-sale will belong to the Vendor and the
Customer shall keep the proceeds of sale in a separate account for which separate
records are kept.
13. Merger with Other Goods
If the Goods 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 or otherwise,
title in the products and services shall remain with the Vendor until the Customer has made
payment for all Goods and where those Goods are mixed with other property so as to be
part of or constituent of any new goods title to those new goods shall be deemed to be
assigned to the Vendor as security for the full satisfaction by the Customer of the full
amount owing by the Customer to the Vendor.
14. Recovery of Goods
(a) In the event of non-payment or if payment of the Customer’s Account is overdue the
Vendor shall be entitled without prejudice to any right it has at law or in equity to
enter the place where the Goods are stored whether the Customer’s premises or
property or the premises or property of a third party for the purpose of recovering
and taking possession of the Goods supplied.
(b) The Customer warrants to the Vendor that where the Goods are stored on the
premises or property of a third party the Customer is acting as agent for the third
party and has the full authority of the third party to authorise entry on to the
premises or property of the third party for the purpose of recovering the Goods
without releasing the Customer from liability.
(c) The Vendor will not be responsible for any damage reasonably caused in the course of
removal of Goods supplied either in the possession of the Customer or a third party
and the Customer indemnifies the Vendor in respect of damage caused in the removal
of the Goods from the property of a third party.
(d) The Vendor may resell the Goods and apply the proceeds towards payment of the
Customer’s outstanding Account with the Vendor. Any shortfall will remain the
liability of the Customer. The Customer indemnifies the Vendor for all costs and
expenses including legal costs as between solicitor and client which the Vendor may
incur in recovering the Goods and any monies owed to it.
15. Warranties
(a) Where applicable, manufacturer’s warranties will attach to the goods.
(b) Goods supplied are guaranteed for the period of the manufacturer’s warranty from
the date of delivery against defective materials or workmanship, provided payment
for such goods has been made in full and any required customer documentation has
been properly completed and received by the vendor. To the full extent allowed by
law all other warranties express or implied are expressly excluded.
(c) Unless otherwise specified, the vendor gives no warranty express or implied as to the
quality, description or fitness for any particular purpose of the goods.
16. Compliance
The Customer shall be solely responsible for obtaining any necessary permits under and for
compliance with all legislation, regulations, by-laws or rules having the force of law in
connection with the installation and operation of the Goods.
17. Cancellation
The Customer shall not be entitled to cancel an Order other than as allowed pursuant to
these Terms and Conditions of Trade.
18. Returns
a) The Customer shall not be entitled to return the Goods or cancel an Order other than
as allowed pursuant to these Terms and Conditions of Trade.
b) Custom made items and procured goods (i.e. cut lengths) are not returnable for credit
c) Faulty, damaged or short supplied goods must be advised within seven(7)
days of delivery. If the customer has ordered incorrectly the customer shall bear all
costs of return and the goods must be returned in as new resellable
condition. Returned goods may be subject to a handling fee. All relevant
documentation must accompany the goods. All claims for freight are conditional
upon the damage being endorsed on the consignment note and are at the sole
discretion of the vendor
19 Personal Property Securities Act 1999
(a) The Customer hereby acknowledges that these Terms and Conditions of Trade
constitute a security agreement which creates a security interest in favour of the
Vendor in all Goods previously supplied by the Vendor to the Customer (if any) and all
after-acquired Goods supplied by the Vendor to the Customer (or for the Customer's
account) to secure the payment from time to time and at a time, including future
advances. The Customer agrees to grant a "Purchase Money Security Interest" to the
Vendor, as that term is defined in the PPSA.
(b) The Customer acknowledges and agrees that by assenting to these terms the
Customer grants a security interest (by virtue of the retention of title clause in these
Terms and Conditions of Trade) to the Vendor and all Goods previously supplied by
the Vendor to the Customer (if any) and all after-acquired Goods supplied by the
Vendor to the Customer (or for the Customer's account) and these terms shall apply
notwithstanding anything express or implied to the contrary contained in the
Customer's purchase order.
(c) The Customer undertakes to:
(i) sign any further documents and/or provide any further information (which
information the Customer warrants to be complete, accurate and up-to-date in
all respects) which the Vendor may reasonably require to enable registration of a
financing statement or financing change statement on the Personal Property
Securities Register ("PPSR");
(ii) not register a financing change statement as defined in section 135 of the PPSA
or make a demand to alter the financing statement pursuant to section 162 of the PPSA in respect of the Goods without the prior written consent of the Vendor;

(iii) give the Vendor not less than 14 days' prior written notice of any proposed change in the Customer's name and/or any other changes in the Customer's details (including but not limited to changes in the Customer's address, facsimile number, email address, trading name or business practice);

(iv) Be responsible for the full costs incurred by the Vendor (including actual legal
fees and disbursements on a solicitor and client basis) in obtaining an order
pursuant to section 167 of the PPSA.
(v) The Customer waives any rights it may have under sections 116, 119, 120(2),
121, 125, 126, 127, 129, 131 and 132 of the PPSA upon enforcement.
(d) Pursuant to section 148 of the PPSA, unless otherwise agreed to in writing by the
Vendor, the Customer waives the right to receive the verification statement in respect
of any financing statement or financing change statement relating to the security
interest.
(e) To the maximum extent permitted by law, the Customer waives its rights and, with
the Vendor's agreement, contracts out of its rights under sections referred to in
sections 107(2), 8(e) and (g) to (l) of the PPSA.
(f) The Customer agrees that nothing in section 113, 114(1)(a), 117(1)(c), 133 and 134 of
the PPSA shall apply to these terms, and, with the Vendor's agreement, contracts out
of such sections.
(g) The Customer and the Vendor agree that section 109(1) of the PPSA is contracted out
of in respect of particular Goods if and only for as long as the Vendor is not the
secured party with priority over all other secured parties in respect of those Goods;
(h) The Customer agrees that immediately on request by the Vendor the Customer will
procure from any persons considered by the Vendor to be relevant to its security
position such agreement and waivers as the Vendor may at any time require.
20 Events of Default
All payments shall become immediately due to the Vendor and the Vendor may at its
option suspend or terminate these Terms and Conditions of Trade and/or exercise any of
the remedies available to it under these Terms and Conditions of Trade in the event that:
(d) a receiver is appointed over any of the assets or undertaking of the Customer;
(e) an application for the appointment of a liquidator is filed against the Customer which
remains unsatisfied for a period of 10 days, or any of the conditions necessary to
render the Customer liable to have a liquidator exist, or a liquidator is appointed;
(f) the Customer goes into voluntary liquidation, amalgamates with another company or
acquires its own shares in accordance with the Companies Act 1993;
(g) the Customer suspends payments to its creditors or makes or attempts to make an
arrangement or composition or scheme with its creditors; or
(h) The Customer becomes insolvent within the meaning of the Insolvency Act 1967 or is,
becomes, or is presumed to be unable to pay its debts as they fall due as defined in
section 287 of the Companies Act 1993 or section 261 of the Companies Act 1955; or
commits any act of bankruptcy.
21. Authority to Sell Goods Supplied
Notwithstanding that title in all Goods is retained by the Vendor, the Customer is
authorised to sell the Goods in the ordinary course of business provided that the authority
may be removed by written notice if the Vendor considers the credit of the Customer to be
unsatisfactory or if the Customer is in default in the performance of its obligations to the
Vendor and shall be deemed automatically revoked if the Customer commits any act of
bankruptcy or any act which would render it liable to be wound up or if a resolution is
passed or proceedings are filed for the winding up of the Customer or a receiver is
appointed for all or any assets of the Customer.
22. Sale of Goods Supplied
(i) Where Goods in respect of which property has not passed to the Customer are sold by
the Customer in the ordinary course of business, the book debt created on the sale
and the proceeds of sale when received shall be held by the Customer for the Vendor
in terms of section 45 of the PPSA.
(j) Where any proceeds of sale are placed in the Customer’s bank account the funds in
the Customer’s bank account shall be deemed to be held on trust for the Vendor to
the extent of proceeds of sale.
(k) Where any payments are made from the Customer’s bank account otherwise than to
the Vendor payment shall be deemed to have been made from all other funds in the
Customer’s bank account and not from funds held on trust for the Vendor.
(l) The trust obligation imposed by this clause and the Vendor’s entitlements under the
PPSA shall continue for so long as the Vendor is unpaid for all Goods supplied to the
Customer.
23. Liability
(m) The Vendor’s liability to the Customer shall be limited to the value of the Order
supplied.
(n) The Sale of Goods Act 1908, the Fair Trading Act 1986 and other statutes may imply
warranties or conditions or impose obligations upon the Vendor 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 terms imposed on the Vendor the Vendor’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 statute.
(o) Except as otherwise provided above the Vendor shall not be liable for any loss or
damage of any kind whatsoever, arising from the supply of Goods by the Vendor 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 Goods provided by the Vendor to the Customer.
24. Suitability of Goods
The Customer must satisfy itself that the Goods as ordered are fit and suitable for the
purpose for which they are required. The Vendor makes no warranties or representation
and expressly negates any implied or expressed condition that the Goods will be suitable
for a particular purpose or use for which the Customer may use them. The Customer
accepts all risk and responsibility for consequences arising from the use of the Goods
whether singularly or in combination with other Goods.
25. Dimensions and Specifications
Dimensions and specifications contained or referred to in any Order, catalogues, brochure
or other publications maintained or issued by the Vendor are estimates only.
26. Assignment
(p) The Customer shall not assign all or any of its rights or obligations under this contract
without the written consent of the Vendor.
(q) The Vendor is entitled at any time to assign to any other party all or any part of a debt
which is owing to the Vendor.
27. Disputes
(r) In the event of any dispute arising between the Vendor and the Customer, such
dispute shall in the first instance be referred to mediation for resolution.
(s) In the event that resolution by mediation is not achieved to the satisfaction of both
parties within 30 days of referral to mediation, either party may then take legal action
to resolve the dispute.
(t) Nothing in this clause prevents the Vendor from taking legal action to enforce
payment of any debt due, nor where required to seek interlocutory or injunctive
relief.
28. Notices
All notices required or committed under these Terms of Trade are to be served as provided
in section 152 of the Property Law Act 1952, or by facsimile, in which case notice is deemed
to be given the day after sending.
29. Validity
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.
30. Changes of General Terms and Conditions
(u) The Vendor may at any time refuse an order by the Customer or decline to approve
any application by the Customer for any reason whatsoever.
(v) The existence of an account by the Customer with the Vendor does not automatically
entitle the Customer to credit in the future.
(w) Failure by the Vendor to enforce any of the terms and conditions contained in these
Terms and Conditions of Trade shall not be deemed to be a waiver of any of the rights
or obligations the Vendor has under these Terms and Conditions of Trade.
(x) The Vendor may from time to time by written notice to the Customer amend, add to
or repeal the trading conditions covered by this Agreement or may substitute any
fresh trading conditions and such amendment, addition or substitute trading
conditions shall be binding on the Customer fourteen days after the date of delivery of
the notice.
31. Force Majeure
Neither the Vendor nor the Customer will be liable to the other for any breach of this
Agreement by any extraordinary occurrences which are beyond the reasonable control of
the party in question.
32. Entire Agreement
These Terms and Conditions of Trade constitute the entire agreement and supersede and
extinguish all prior agreements and understandings between the Vendor and the Customer.
33. Other Agreements
If there is inconsistency between these Terms and Conditions of Trade and any order
submitted by the Customer or any other arrangement between the Vendor and Customer,
these Terms and Conditions of Trade prevail unless otherwise agreed in writing by the
parties.
34. Governing Law
These Terms and Conditions of Trade will be interpreted in accordance with and governed
by the laws of New Zealand and the New Zealand Courts will have exclusive jurisdiction
over any dispute in relation to the Goods.

35

35.1 The customer authorises the vendor or its agent or duly authorised credit reporter to:
1. Access, collect, retain and use any information about the customer for
the purpose of assessing the customer’s creditworthiness and /or for
the purpose of marketing products and services to the customer.
2. Disclose information about the customer, whether collected by the
vendor from the customer directly or obtained by the vendor 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 customer.
35.2 Where the customer is an individual the authorities under this clause are
authorities or consents for the purposes of the Privacy Act 1993
35.3 The customer shall have the right to request the vendor for a copy of the
information about the customer retained by the vendor and the right to request
the vendor to correct any incorrect information about the customer held by the
vendor.

36. Retentions

Retentions will not be accepted on projects with a total value of less than $20,000.00