1.1 “Default Interest Rate” shall mean interest payable at the rate of 2.5% per month or part month and compounded monthly.
1.2 “Delivery” shall mean the first point in time when in relation to any ordered Goods the MIL gives possession of the Goods directly to the Purchaser or possession of the Goods is given to a carrier, courier or other bailee for the purposes of transmission to the Purchaser.
1.3 “Goods” shall mean all goods supplied to the Purchaser by MIL pursuant to this agreement.
1.4 “Goods and Services” shall mean all Goods and all products, services and advice provided by or to be produced by MIL to the Purchaser pursuant to this agreement and shall include without limitation the design, manufacture, development, sale, installation, repair and maintenance of equipment and the supply of componentry and parts.
1.5 “GST” shall mean Goods and Services Tax payable in terms of the Goods and Services Tax Act 1985.
1.6 “PPSA” shall mean the Personal Property Securities Act 1999 together with its amendments.
1.7 “Price” shall mean the cost of the Goods and Services as agreed between MIL and the Purchaser including GST as recorded on the Sales Order form or other document between MIL and the Purchaser, subject to Clause 3 hereof, and is for the supply and installation of the Goods only.
1.8 “Purchaser” shall mean the party described as such in the Sales Order form which forms part of this contract (or in the absence of a Sales Order form, shall mean the party described as the purchaser, customer, or similar in any other document(s) which form(s) part of this contract).
1.9 “Uninvited Direct Sale Agreement” shall have the meaning set out in Section 36K Fair Trading Act 1986.
1.10 “Works” shall mean the work undertaken in installing the Goods.
2. Identity Of Contracting Party
2.1 The Purchaser will provide a copy of their drivers license and/or passport (in the case of private individuals/partners/trustees) or certificate of incorporation (in the case of companies) or other legal documentation to verify their identity at the time this agreement is executed.
3. Collection and Use of Information
3.2 The Purchaser authorises any person or company to provide the MIL with such information as may be required in accordance with MIL’s credit policy.
4.1 The Price is valid for 30 days.
4.2 The Price may increase if:
4.2.1 The cost of supply of the Goods and Services that is beyond the control of MIL increases between the date of this contract and delivery of the Goods and Services.
4.2.2 Costs arise which are necessary for MIL to complete the installation but were not within the Suppliers reasonable contemplation originally.
4.2.3 The Purchaser requests alterations or variations to the Goods and Services originally priced.
4.2.4 If a price increase applies, MIL will notify the Purchaser as soon as practicable.
5.1 Payment of the Price of the Goods and Services shall be as follows:
5.1.1 The deposit is to be paid immediately this contract is signed by the purchaser; and
5.1.2 The balance is to be paid immediately on delivery.
5.1.3 Payment in full is due on or before 4pm on the working day delivery occurs. If delivery takes place after 4pm on a working day or on a weekend or statutory holiday payment is due at 4pm on the next following working day.
5.2 Payment must be made in full without any deduction, set off or retention of funds.
5.3 The Price is based on payment in cash, cheque or internet banking. If payment is made by credit card MIL may apply a surcharge.
5.4 Interest may be charged on any amount owing after the due date at the default interest rate.
5.5 Any debt collection costs incurred by MIL in the enforcement of any rights contained in this contract due to a default by the Purchaser shall be paid by the Purchaser.
5.6 Receipt of a cheque, bill of exchange or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
5.7 For the avoidance of doubt MIL and the Purchaser each acknowledge and agree that this contract is not a consumer credit contract for the purposes of the Credit Contracts and Consumer Finance Act 2003 because the whole price is due and payable within 2 months of the date of this contract namely in accordance with clause 4.1.
5.8 Where a default occurs:
5.8.1 MIL may suspend or terminate any contract;
5.8.2 The monies owing shall become immediately due and payable notwithstanding that the due date has not arisen; and/or
5.8.3 MIL may enforce the Security Interest; and
5.8.4 The Purchaser will pay interest at the Default Interest Rate from the date of default to the date of payment on all amounts outstanding.
5.9 Should MIL terminate this agreement under 4.8.1 hereof it will be entitled to recover all costs incurred prior to the date of termination.
6.1 The Goods remain at MIL’s risk until delivery to the Purchaser from which time the Purchaser will immediately be responsible for risk in all respects.
7. Title and Security (PPSA)
7.1 Title in any Goods and Services supplied by MIL passes to the Purchaser only when the Purchaser has made payment in full for all Goods and Services provided by MIL and all other sums due to MIL by the Purchaser on any account whatsoever. Until all sums due to MIL by the Purchaser have been paid in full, the Purchaser as debtor grants a security interest to MIL in the Goods and in goods previously supplied to the Purchaser and in all after acquired goods supplied by MIL.
7.2 If the Goods are attached, fixed or incorporated into any property of the Purchaser, by way of any manufacturing, installation, or assembly process, title in the Goods and Services shall remain with MIL until the Purchaser has made payment in full for all Goods and Services.
7.3 The Purchaser acknowledges and agrees that the security interest given to the Supplier includes a security interest in all proceeds of collateral.
7.4 The Purchaser hereby gives irrevocable authority to MIL or its agents to enter any premises occupied or owned by the Purchaser, or on which Goods are situated at any time after default by the Purchaser or before a default if MIL believes a default is likely and to remove or repossess any Goods. MIL shall not be liable for any costs, damages, losses or expenses incurred by the Purchaser or any third party as a result of MIL taking any action that is necessary in order to exercise this right, nor shall it be liable in contract or in tort or otherwise in any way whatsoever unless by statute such liability cannot be excluded, and except where any loss is caused solely and directly because MIL has been negligent or wilfully caused damage. MIL may either resell any repossessed Goods and credit the Purchaser’s account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs) or may retain any repossessed Goods and credit the Purchaser’s account with the invoice value thereof less such sum as the Supplier determines on account of fair wear and tear, depreciation, obsolescence, loss of profit and costs.
7.5 Under sections 120 and 121 of the PPSA, where Goods are repossessed by MIL pursuant to clause 7.3, the Purchaser has a statutory right to receive advance notice from the Supplier of such repossession and to object to the repossession. By signing these terms and conditions the Purchaser agrees to give up these rights.
7.6 The Purchaser agrees to waive its right to receive a verification statement in respect of any financing statement or financing change statement relating to the security interest and the Purchaser contracts out of section 114(a), 117(1)(c), 133 and 134 of the PPSA. The rights of a debtor in sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA do not apply to the security interest given by the Purchaser to MIL.
7.7 The following shall constitute defaults by the Purchaser:
7.7.1 Non payment of any sum by the due date for such payment.
7.7.2 Before full payment of the Price is made by the Purchaser, any Goods are seized by any other creditor of the Purchaser or any other creditor intimates that it intends to seize Goods, or the Purchaser is bankrupted or put into liquidation or a receiver is appointed to any of the Purchasers assets or a landlord distrains against any of the purchaser’s assets, or a Court judgment is entered against the Purchaser and remains unsatisfied for 5 working days.
7.8 The Purchaser agrees to provide any information or sign any document required under the PPSA and the regulations under the PPSA to enable MIL to register a financing statement or a financing change statement.
8.1 The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon MIL which cannot by law (or which can only to a limited extent by law) be excluded or modified in respect of any such warrantees conditions or terms imposed on MIL. MIL’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.
8.2 Except as otherwise provided by clause 7.1 or 7.3 MIL shall not be liable for:
8.2.1 Any loss or damage whatsoever arising from the supply of (or delay in supplying or failure to supply) Goods and Services by the Supplier to the Purchaser including consequential loss whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Goods and Services provided by the Supplier to the Purchaser; and
8.2.2 The Purchaser shall indemnify MIL against all claims and loss of any kind arising from the negligence or wilful acts or omissions of the Purchaser.
8.3 Nothing in this clause 7 excludes MIL’s liability for the negligent or wilful acts or omissions of MIL.
8.4 The total liability of MIL hereunder will in no case exceed the price hereunder.
8.5 The Purchaser acknowledges that the Sale of Goods Act 1956 does not apply.
9. Product Warranty
9.1 The manufacturer’s product warranty applies where applicable to the Goods.
9.2 For Goods not manufactured by MIL the warranty will be the current warranty provided by the manufacturer of the Goods or materials. MIL will be under no liability whatsoever except for the express conditions as detailed and stipulated in the manufacturer’s warranty.
9.3 All warranties will be voided if the Goods are repaired by any person not authorised by MIL to do such repairs or if the Goods are used other than for the purpose for which they were intended or if in the case of a Minilift the MIL operating instructions and maintenance and service requirements are not strictly adhered to by the Purchaser.
9.4 The Suppliers warranties only apply to Goods manufactured by MIL or matters arising from the installation of these Goods. Any failing in respect of parts, components or materials obtained by MIL from other sources are not covered by MIL’s warranties. Such parts, components or materials will be covered by the manufacturers warranty (if any) only.
9.5 Any written product warranty provided by MIL to the Purchaser shall also form part of this contract.
10. Consumer Guarantees Act
10.1 Where the Purchaser is “in trade” within the meaning of the Consumer Guarantees Act 1993 (“CGA”) the parties each confirm acknowledge and agree that:
10.1.1 they are each “in trade”;
10.1.2 the Goods and Services are supplied to the Purchaser and acquired by the Purchaser in trade and for a business purpose; and
10.1.3 the statutory guarantees and implied terms, covenants and conditions contained in the CGA are excluded to the fullest extent permitted at law and do not apply.
10.1 Failure by MIL 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 MIL has under this contract and MIL shall not be deemed to have waived any provision or condition unless such waiver is in writing and signed by a duly authorised signatory of MIL. Any such waiver will apply to and operate only in the particular transaction, dealing or matter in respect of which it was given.
10.2 If any provision of this contract shall be found to be invalid, void or illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
10.3 The parties acknowledge that this agreement sets forth the entire agreement and understanding of the parties and supersedes all prior oral or written statements, representations, agreements, understandings or arrangements relating to its subject matter. The person purchasing the Goods and Services confirms having the authority to undertake the purchase on behalf of the Purchaser.