These Conditions apply to any sale by Mac Engineering Solutions Limited, NZBN 9429048945455 (“MES”) to You, the Customer, of Products and/or Services purchased either:
- online via the MES website located at https://macengineeringsolutions.co.nz (“Webstore”); or
- via an agreement in writing, between the parties, including by email or purchase order (excluding orders made on the Webstore) (“Agreement”).
By placing an order with MES, You, the Customer, agree to be bound by these Conditions.
Please read these Conditions carefully before placing Your Order. These Conditions will apply notwithstanding anything which may be stated to the contrary on Your Order (including conditions stated in Your purchase order or in Your standard terms and conditions of purchase) and can only be varied by MES and You agreeing to the variation in writing. No course of dealings between MES and You will add to or replace any of these terms.
1. Definitions
In these terms and conditions of trade purchase (‘Conditions”) the following words have the following meanings:
“Contract” means a contract (which includes these Conditions) between You and MES for the purchase of Products and/or Services, via Agreement or the Webstore, which are the subject of the Order and is created on acceptance of an Order by MES in accordance with clause 3;
“Customer”, also referred to as “You” or “Your”, means the person/ legal entity who has completed the Order or any person/legal entity purchasing Products and/or Services from MES. This includes any person acting on behalf of the Customer;
“Delivery Address” means the physical address specified for delivery of the Products and/or Services to You which is specified in the Order (which cannot be a PO Box);
“Order” means an order for Products and/or Services, placed by You online using the Webstore or by an Agreement;
GST’ has the same meaning as appears in Goods and Services Tax Act 1985 (as amended from time to time);
‘Products’ shall mean:
- All products of the general description specified in the Agreement or on the Webstore and supplied by MES to the Customer;
- All inventory of the Customer that is supplied by MES;
- All products that are marked as having been supplied by MES or that are stored by the Customer in a manner that enables them to be identified as having been supplied by MES; or
- All off the Customer’s present and after-acquired products that MES has performed work on, or to, or in which Products or materials supplied or financed by MES been attached or incorporated
The above description may overlap but each is independent of and does not limit the others.
‘Price’ shall mean:
For orders via the Webstore – the cost of the Products and/or Services detailed on the website excluding GST and delivery costs which will be noted separately.
For order via an Agreement – the cost of the Products and/or Service as agreed between MES and the Customer excluding GST and delivery costs and any disbursements e.g. charges MES pay to others on the Customers behalf unless otherwise stated in the Agreement.
‘Services’ shall mean all services and advice provided by MES to the Customer and shall include, without limitation the installation of machinery and/or related software and consumables and all charges for labour, hire charges, insurances charges, or any fee or charge associated with the supply of Products and/or Services by MES to the Customer.
2. Quotation for purchases via Agreement
2.1 Where a written quotation is given by MES for Products and/or Services:
i) Unless otherwise agreed the quotation shall be valid for thirty (30) days from the date of issue;
ii) is an invitation to treat only; and
iii) is subject to exchange rate fluctuations.
2.2 The quotation is exclusive of GST and any other taxes or duties imposed on or in relation to the Products and/or Services, delivery costs, installation fees, repairs or maintenance services to be performed by MES that may be required from time to time or disbursements e.g. charges MES pay to others on the Customers behalf, unless otherwise stated in the Agreement.
2.3 MES reserves the right to alter the quotation due to circumstances beyond its control.
2.4 The Customer must provide MES with its specific requirements, if any, in relation to the Products and/or Services.
3. Acceptance of Orders
For orders via the Webstore
3.1 Your Order submitted via the Webstore is deemed to be an offer by You to buy the Products and/or Services referred to in that Order.
For orders via Agreement
3.2 Any orders received by MES from a Customer is deemed to be an offer by You to buy the Products and/or Services referred to in that Order.
For all Orders via the Webstore or by an Agreement
3.3 MES shall not be liable to You and is not obligated to supply any of those Products and/or the Services until the Order is accepted by MES.
3.4 Any orders or offers are accepted by MES when MES issues You with written confirmation regarding your Order.
3.5 Acceptance of the Order by MES will constitute a binding Contract between the and parties and acceptance by the You of these Conditions.
3.6 MES may in its discretion reject or cancel an Order at any time (even if accepted) for any reason including but not limited to:
(a) any payment made by You being cancelled, dishonoured or reversed;
(b) if the Products and/or Services the subject of Your Order are not available; or
(c) a manifest error on the Website in respect of pricing of the Goods and/or Services in question.
3.7 In the event of cancellation (except in the circumstances set out in (a))MES will refund the Price to You.
4. Price and Payment
For Order via the Webstore
4.1 All Prices on the Webstore are in New Zealand Dollars (NZD) and is exclusive of GST.
4.2 Prices payable for any Product and/or Service on the Website are subject to variation without notice from time to time.
4.3 The Price payable for any Product and/or Service on the Website shall be the price on the Website applicable on the date the Order is placed (subject to manifest error).
4.4 You also agree to pay the delivery fee specified in the Order which will be calculated during the checkout process and added to the Order before You place Your Order on the Webstore.
4.5 You must pay for the Products and/or the Services at the time of submitting Your Order as payment must be received in full before the Order will be processed.
4.6 MES accepts valid Visa and Mastercard payments via the Webstore. MES does not accept cash, cheque, bankcard, American Express or other payment methods for the payment of the Products and / or Services made via the Webstore.
For Orders via Agreement
4.7 All pricing in an Agreement are in New Zealand Dollars (NZD) and is exclusive of GST.
4.8 Where no price is stated in writing the Products and/or Services shall be deemed to be sold at the current amount as such Products and/or Services are sold by MES at the time of the Agreement.
4.9 The Price may be increased by the amount if any reasonable increase in the cost of supply of the Products and/or Services that is beyond the control of MES between the dates of the Agreement and delivery of the Products and Services.
4.10 If the Customer requests any variation to the Agreement, MES may increase the Price to account for the variation.
4.11 Where there is any change in the costs incurred by MES in relation to the Products and/or Services, MES may vary its Price to take account of any such changes, by notifying the Customer.
4.12 Unless otherwise agreed and stated on the invoice payment for Products and/or Service shall be made in full on or before the 20th day of the month following the date of the invoice (‘the due date’).
4.13 All payments must be made by bank transfer to MES’s nominated bank account.
4.14 If the Customer defaults in payment by the due date of any amount payable to MES, then all monies which would become payable by the Customer to MES at a later date on any Contract becomes immediately due and payable without the requirement of any notice to the Customer, and MES may, without prejudice to any of its other accrued or contingent rights:
(a) charge the Customer interest on any sum due at the prevailing rate pursuant to of 3.5% for the period from the due date until the date of payment in full;
(b) charge the Customer for, and the Customer must indemnify MES from, all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Agreement or to recover any Products and/or Services;
(c) cease or suspend supply of any further Products and/or Services to the Customer;
(d) by written notice to the Customer, terminate any uncompleted Contract with the Customer.
Additional payment requirements on machine purchases for order by an Agreement
4.15 A 30% deposit of the total cost, i.e. Price plus GST, delivery fee, disbursements, is required once the Order is accepted by MES and must be paid within 7 days of the date of MES invoice. The remaining 70% of the total costs i.e. Price plus GST, delivery fee, disbursements is due prior to the Products leaving the manufacturer’s shipping port for delivery to New Zealand.
4.16 The time for payment is of the essence.
4.17. Clause 4.14 may also be relied upon, at MES’s option:
a) where the Customer is a natural person and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or
b) where the Customer is a corporation and, it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, administrator, receiver or manager or similar functionary appointed in respect of its assets, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer.
5. Delivery
5.1 All Products will be delivered to You at the Delivery Address during normal trading hours.
5.2 MES will take reasonable precautions to ensure that all Products supplied accord with the Order, are in good condition and are protected against damage and deterioration in transit.
5.3 MES will use all reasonable endeavours to ensure that couriers and delivery companies shall deliver Products to You in a timely manner. You acknowledge that all delivery times quoted (whether on the Webstore, in an Agreement or in correspondence from MES) are a guide only and actual delivery times may vary. From time to time there may be delays in delivery and MES may take longer to deliver due to stock shortages or other unexpected reasons. MES will notify You as soon as possible if we are unable to dispatch Your Order.
5.4 MES takes no responsibility for Products (or the cost of delivery of such Products) dispatched to a Delivery Address should You have provided incorrect or incomplete address details in Your Order. You agree to accept all delivery costs incurred in MES resending the Products to the correct Delivery Address.
5.5 Anyone present at the Delivery Address may receive the Goods and may be required to provide their name and signature.
5.6 MES accepts no responsibility for delivery of Products pursuant to an Order placed due to unlawful use of Your credit card.
Additional Delivery Terms For Order via Agreement
5.7 Subject to clause 5.11, MES will arrange for the delivery of the Products to the Customer. The Customer can elect to collect the Products themselves.
5.8 The Customer is responsible for all costs associated with delivery, including freight, insurance and other charges arising from the point of dispatch, i.e. the manufacturer’s port of dispatch, of the Products to the Customer to the point of delivery i.e. the Delivery Address, unless otherwise specified in the Agreement.
5.9 MES may make part delivery of goods or provision of services and MES may invoice the Customer for the Products and/or Services provided.
5.10 If delivery is attempted, or the Customer is notified that MES is ready to effect delivery, and delivery is unable to be completed the Customer is deemed to have taken delivery of the goods. The Customer is liable for storage charges payable monthly on demand.
5.11 If agreed that the Customer will collect the goods:
a) the Customer must collect the goods with 7 days of being advised they are ready;
b) if the Customer does not collect the goods within this time, the Purchaser is deemed to have taken delivery of the goods and is liable for storage charges payable monthly on demand.
6.Cancellation
Cancellation for order via the Webstore
6.1 Once placed via the Webstore an Order cannot be changed or cancelled due to Your change of mind.
Cancellation for Orders via an Agreement only
6.2 No purported cancellation or suspension of an order or any part of it by the Customer is binding on MES once the order has been accepted.
Cancellation by MES for Orders via the Webstore and by Agreement
6.3 If MES is unable to deliver or provide the Products and/or Services, then it may cancel the Customer’s order (even if it has been accepted) by written notice to the Customer.
7. Returns and Refunds Shortages and Exchanges
7.1 Subject to clauses 7.6, MES will not be liable for any shortages, damage or non-compliance with the specifications in the Agreement unless the Customer notifies MES with full details and description within 7 days of delivery otherwise the Customer is deemed to have accepted the goods.
7.2 When any shortages, claim for damaged goods due to manufacturing defect, delivery of the incorrect Products or non-compliance with the Agreement specifications is accepted by MES, MES may, at its option, replace the Products with identical or comparable item, or refund the price of the Products.
7.3 MES may require You to provide photographic evidence of the fault, issue or concern You have in respect of the Products and/or Services and/or we may request that You return the faulty, damaged or incorrect Products (for inspection and/or replacement) to such address as will be notified to You.
7.4 Subject to clause 7.6, MES will not under any circumstances accept Products for return that:
(a) have been specifically produced, imported or acquired to fulfil the Agreement;
(b) are discontinued Products or no longer stocked by MES;
(c) have been altered in any way;
(d) have been used; or
(e) are not in their original condition and packaging.
(f) the fault or damage has been caused by You or a third party (whether by accident or neglect) after delivery
7.5 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Products and/or Service from MES for the purpose of a business in terms section 2 and 43 of the Act.
7.6 If the Customer is a consumer, nothing in this clause 7 limits any remedy available for a failure of the guarantees in sections 56 and 57 of the Consumer Guarantees Act 1993.
8.Technical Documents
8.1 Catalogues, manuals and other technical documents are provided to the Customer as a reference only and do not form part of any Order, Agreement or Contract.
8.2 The Customer must not provide any catalogue, manual or technical document to any third party without MES’s the express written consent.
9. Safety Standards Agreement
9.1 For safety reasons, MES must install or mount any Products supplied by it to the Purchaser.
9.2 MES will ensure that there are sufficient persons available to install or mount the Products upon delivery and the Customer agrees to allow access to its property for the purpose of installing or mounting the Products.
10. Collection and use of the information
10.1 The collection, use and disclosure of all personal information (in connection with an Order placed) is conducted in accordance with MES’s Privacy Policy.
10.2 The Customer authorises MES to collect, retain and use any information about the Customer, for the purpose of assessing the Customers credit worthiness, managing the Customers orders and accounts, enforcing any rights under this agreement or marketing any Products and/or Service provided by MES in accordance with MES’s Privacy Policy.
10.3 The Customer authorises MES to discuss any information obtained to any person for the purposes set on in clause 10.2.
10.4 Where the Customer is a natural person the authorities under clauses 10.2 and 10.3 are authorities or consents for the purposes of Privacy Act 1993.
11. Title, Risk and Security
For Orders via the Webstore
11.1 The risk of loss or damage to the Products is accepted by MES up to the point of being delivered to the Delivery Address, where such risk of loss or damage then passes to You.
11.2 Title to the Products passes to You upon being delivered to the Delivery Address.
For Orders via an Agreement (Personal property securities ACT 1999)
11.3 The risk in the Products and/or Services and all insurance responsibility for theft, damage or otherwise will pass to the Customer immediately on the Products being delivered to the Customer at the Delivery Address or collected by the Customer is accordance with clause 5.7 and 5.11.
11.4 The Products and/or Services are sold to the Customer on the basis that the Customer has obtained all necessary licenses or permits under all relevant laws and regulations in relation to the Products and/or Services.
11.5 The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, or third parties arising out of the use, installation or possession of any of the Products and/or Services sold by MES.
11.6 Title in any Products supplied by MES passes to the Customers only when the Customer has made payment in full for all the Products and/or Services provided by MES and of all sums due to MES on any account whatsoever. Until all sums due to MES by the Customer have been paid in full, MES has a security interest in all Products and/or Services.
11.7 If the Products and/or Services 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, title in the Products and/or Services shall remain with MES until the Customer has made payment for all Products and/or Service and where those Products and Services are mixed with other property so as to be part of or a constituent of any new Products and/or Services, title to these new Products and/or Services shall deemed to be assigned to MES as security for the full satisfaction by the Customer to the full amount owing between MES and the Customer.
11.8 The Customer gives irrevocable authority to MES to enter premises occupied by the Customer or on which Products and/or Services are situated at any reasonable time after default by the Customer, or before default if MES believes a default is likely, and to remove and repossess any Products and/or Services and any other property to which Products and/or Service are attached or in which Products and/ or Service are incorporated.
11.9 MES shall not be liable for any cost, damages, expenses or losses incurred by the Customer or any third party as a result of this action, nor liable in contract or in tort of otherwise any way whatsoever unless by statute such liability cannot be excluded.
11.10 MES may either resell any processed Products and/or Services and credit the Customer’s account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs) or may retain any repossessed Products and/or Service and credit the Customers account with the invoice valve thereof less such sum as MES reasonably determines on account of wear and tear, depreciation, obsolescence, loss of profit and costs.
11.11 Where Products and/or Services are retained by MES pursuant to clause 11.10 the Customer waives 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.
11.12 The following shall constitute default by the Customer:
(a) Non-payment of any sum by the due date;
(b) The Customer intimates that it will not pay any sum by the due date;
(c) Any Products and/or Services are seized by any other creditor or the Customer or any other creditor intimates that it intends to seize Products and/or Services;
(d) Any Products and/or Services in the possession of the Customer are materially damaged while any sum due from the Customer to MES remains unpaid;
(e) The Customer is bankrupt or put into liquidation or a Receiver is appointed to any of the Customer assets, or a landlord distrains against any of the Customers assets;
(f) A Court judgment is entered against the Customer and remains unsatisfied for seven (7) days; or
(g) If the Credit Repossession Acts applies to any transaction between n the Customer and MES, the Customer has the rights provided in the Act despite anything contained in these terms and conditions of trade.
11.13 Disputes: No claim relating to Products and/or Services will be considered unless made within seven (7) days of delivery
12. Personal Guarantee of Company Directors or Trustees
12.1 If the Customer is a company or trust, the director(s) or trustee(s) signing an Agreement, in consideration for MES agreeing to supply Products and/or Service and grant credit to the Customer will on request, also sign or accept this agreement in their personal capacity and jointly and severally personally undertake as principal debtors to MES the payment of any and all monies now or hereafter owed by the Customer to MES and indemnify MES against no-payment by the Customer. Any personal liability of the signatory shall not by nature exclude the Customer in any way whatsoever from the liabilities and obligations contained in this contract. The signatories or accepter and Customer shall be jointly and severally liable under the terms and conditions of this agreement and for payment of all sums due here under.
13. Liability:
13.1 The Consumer Guarantees Act 1993, the Fair-Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon MES 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 MES, MES’s liability shall, where its allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.
13.2 Except as otherwise provided by clause 13.1 MES shall not be liable for:
(a) Any loss or damage of any kind whatsoever, arising from the supply of Products and/or Service by MES to the Customer, including consequential loss, indirect loss or special loss (including loss of revenue, profit, economic loss or loss or corruption of data) whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise irrespective of whether such loss or damage arrives directly or indirectly from Products and/ or Services provided by MES to the Customer,
(b) Any matters outside of MES’s direct control or which are not preventable by reasonable diligence on MES’s part, including without limitation, fire, floods, accidents, breakdown, strikes, lockouts, industrial action whether by MES’s employees or employees of MES’s suppliers, unusually severe weather, pandemic, epidemic (and related lock-downs, business closures, restrictions on movement of persons or goods, whether government-mandated or voluntarily determined by MES), import or export restrictions, war and acts of god. If an event of force majeure occurs, MES may suspend or terminate the Agreement by written notice to the Customer; and
(c) Any loss or damage suffered due to a delay in Products being delivered to the Delivery Address.
13.5 If, contrary to the disclaimer of liability contained in these terms and conditions of trade purchase, MES is deemed to be liable to the Customer following and arising from the supply of Products and/ or Service by it to the Customer then it is agreed between MES and the Customer that such liability is limited in it aggregate to $500.00 NZD.
14. Warranty
14.1 Manufacturer’s warranty applies where applicable.
14.2 Any written warranty that MES provides to the Customer will also form part of these Conditions.
14.3 Except as these Conditions specifically state, or as contained in any express warranty provided in relation to the Products and/or Services as per clause 14.2, the Agreement does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Products and/ or Services or any contractual remedy for their failure.
14.4 The Customer acknowledges that it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by MES in relation to the Products and/or Services or their use or application.
(b) The Customer confirms it has not made known, either expressly or by implication, to MES any purpose for which it requires the Products and/ or Services and it has the sole responsibility of satisfying itself that the Products and/or Services are suitable for the use of the Customer.
15. Miscellaneous
15.1 Failure by MES to enforce any of the terms and conditions contained in this agreement shall not be deemed to be a waiver of any rights or obligations under any Contract or of these Conditions.
15.2 If any provision of these Conditions shall be deemed invalid, void or illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
15.3 The Contract contains the entire agreement between MES and You in relation to your Order. You acknowledge that, in entering on this Contract, You have not relied on any representations or provision except as set out in this contract.
15.4 MES from time to time may alter these Conditions as it reasonably determines necessary. Such alteration will not affect any Contract that MES has entered into with You prior to alteration.
15.5 A notice must be in writing and handed personally, sent by email or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by email are deemed received on successful transmission. by MES.
15.6 These Conditions and any Contract of which these Conditions form part of will be governed by the laws of New Zealand, the parties submit to the exclusive jurisdiction of the Courts of New Zealand.