Mount Maunganui Engineering Ltd
“MME” means Mount Maunganui Engineering Limited, its successors and assigns or any person acting on behalf of and with the authority of Mount Maunganui Engineering Limited.
“Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting MME to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
if there is more than one Client, is a reference to each Client jointly and severally; and
if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
includes the Client’s executors, administrators, successors and permitted assigns.
“Services” means all Services or Goods supplied by MME to the Client at the Client’s request from time to time (where the context so permits the terms ‘Services’ or ‘Goods’ shall be interchangeable for the other).
“Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Services as agreed between MME and the Client in accordance with clause 5 below.
The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of any Services.
These terms and conditions may only be amended with the consent of both parties in writing and shall prevail to the extent of any inconsistency with any other document or contract between the Client and MME.
Any advice, recommendation, information, assistance or service provided by MME in relation to Goods or Services supplied is given in good faith, is based on MME’s own knowledge and experience and shall be accepted without liability on the part of MME and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Goods or Services.
The Client acknowledges and accepts that:
the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, MME reserves the right to substitute comparable Goods (or components of the Goods) and vary the Price as per clause 5.2. In all such cases MME will notify the Client in advance of any such substitution, and also reserves the right to place the Client’s order and/or Services on hold, as per clause 6.2 until such time as MME and the Client agree to such changes; and
where MME is requested to build the hull or superstructure of a vessel, the Services are deemed to be completed once the Goods are built to appropriate standard for other third-party contractors to continue the next phase in the building of the vessel.
Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Errors and Omissions
The Client acknowledges and accepts that MME shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
resulting from an inadvertent mistake made by MME in the formation and/or administration of this contract; and/or
contained in/omitted from any literature (hard copy and/or electronic) supplied by MME in respect of the Services.
In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of MME; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.
4. Change in Control
The Client shall give MME not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees or business practice). The Client shall be liable for any loss incurred by MME as a result of the Client’s failure to comply with this clause.
5. Price and Payment
At MME’s sole discretion the Price shall be either:
as indicated on invoices provided by MME to the Client in respect of Services performed or Goods supplied; or
MME’s quoted Price (subject to clause 5.2) which shall be binding upon MME provided that the Client shall accept MME’s quotation in writing within thirty (30) days.
MME reserves the right to change the Price:
if a variation to the Goods which are to be supplied is requested; or
if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
if during the course of the Services, the Goods are not or cease to be available from MME’s third party suppliers, then MME reserves the right to provide alternative Goods; or
where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, safety considerations, prerequisite work by any third party not being completed, further faults on inspection, specialist tools required for completion of the Services etc.) which are only discovered on commencement of the Services; or
in the event of increases to MME in the cost of labour or materials which are beyond MME’s control.
Variations will be charged for on the basis of MME’s quotation, and will be detailed in writing, and shown as variations on MME’s invoice. The Client shall be required to respond to any variation submitted by MME within ten (10) working days. Failure to do so will entitle MME to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
At MME’s sole discretion a deposit may be required.
Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by MME, which may be:
on completion of the Services; or
by way of progress payments in accordance with MME’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Goods delivered to the worksite but not yet installed;
for certain approved Client’s, due twenty (20) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
the date specified on any invoice or other form as being the date for payment; or
failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by MME.
At the agreement of both parties, payment of the Price may be subject to retention by the Client of an amount (hereafter called the "Retention Money"), being a set amount or equal to a percentage of the Price. The Client shall hold the Retention Money for the agreed period following completion of the Services during which time all Services are to be completed and/or all defects are to be remedied. Any Retention Money applicable to this contract are to be dealt with in accordance with section 18 of the Construction Contracts Act 2002.
Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Client and MME.
The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by MME nor to withhold payment of any invoice because part of that invoice is in dispute.
Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to MME an amount equal to any GST MME must pay for any supply by MME under this or any other contract for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
6. Provision of the Services
Subject to clause 6.2 it is MME’s responsibility to ensure that the Services start as soon as it is reasonably possible.
The Services’ commencement date will be put back and the completion date extended by whatever time is reasonable in the event that MME claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond MME’s control, including but not limited to any failure by the Client to:
make a selection; or
have the site ready for the Services; or
notify MME that the site is ready.
At MME’s sole discretion, the cost of delivery is included in the Price.
MME may deliver the Services by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions. MME reserves the rights to halt the next instalment of the Services should an invoice not be paid in accordance with the progress payment schedule.
Any time specified by MME for delivery of the Services is an estimate only and MME will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Services to be supplied at the time and place as was arranged between both parties. In the event that MME is unable to supply the Services as agreed solely due to any action or inaction of the Client, then MME shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date, and/or for storage of the Goods.
If MME retains ownership of the Goods under clause 10 then:
where MME is supplying Goods only, all risk for the Goods shall immediately pass to the Client on delivery and the Client must insure the Goods on or before delivery. Delivery of the Goods shall be deemed to have taken place immediately at the time that either;
the Client or the Client’s nominated carrier takes possession of the Goods at MME’s address; or
the Goods are delivered by MME or MME’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).
where MME is to both supply and install Goods then MME shall maintain a contract works insurance policy until the Services are completed. Upon completion of the Services all risk for the Services shall immediately pass to the Client.
Notwithstanding the provisions of clause 7.1 if the Client specifically requests MME to leave Goods outside MME’s premises for collection or to deliver the Goods to an unattended location then such materials shall always be left at sole risk of the Client and it shall be the Client’s responsibility to ensure the Goods are insured adequately or at all. In the event that such Goods are lost, damaged or destroyed then replacement of the Goods shall be at the Client’s expense.
Where MME is required to install the Goods the Client warrants that the structure of the premises or equipment in or upon which these Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and MME shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation.
MME shall be entitled to rely on the accuracy of any plans, specifications (including, but not limited to CAD drawings) and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, MME accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
The Client acknowledges and accepts that:
where the Client has supplied any materials for MME to complete the Goods and/or Services under this contract, the Client acknowledges that they accept responsibility for the suitability of purpose, quality and any faults inherent in those materials. MME shall not be responsible for any defects in the Goods, the performance thereof or any loss or damage howsoever arising from the use of materials supplied by the Client;
MME shall only responsible for Goods that are replaced by MME, and in the event that other components, subsequently fail, the Client agrees to indemnify MME against any loss or damage to the Services, or caused by the components, or any part thereof howsoever arising;
all descriptive specifications, illustrations, drawings, data, dimensions and weights stated in MME’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Client shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by MME;
stainless steel is a textured material and can be of a porous nature. The Client accepts that products made from this material can rust and mark easily. The Client accepts that care should be taken to maintain the finish of and longevity of stainless steel products;
where an anodised surface finish has been selected, slight colour variation may occur between the main unit frame and any installation trims used due to the difference in aluminium alloys available and manufacturing standards and tolerances shall not deemed to be a defect in the Goods; and
Goods supplied may:
exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. MME will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur;
expand, contract or distort as a result of exposure to heat, cold, weather;
mark or stain if exposed to certain substances; and
be damaged or disfigured by impact or scratching.
The Client also acknowledges and agrees that where MME has performed temporary repairs that:
MME offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and
MME will immediately advise the Client of the fault and shall provide the Client with an estimate for the full repair required.
MME shall not be liable for any defect, deterioration and/or damage to the Goods:
if the Client does not follow MME’s recommendations;
where Goods are stored off site for extended periods of time as a result of any action/inaction by the Client;
resulting from incorrect use and/or installation of the Goods by the Client or any other third party; and
where welding, galvanising (or any other heat related process) has caused distortion or any other damage.
8. Client’s Responsibilities
Prior to MME commencing the Services the Client must advise MME of the precise location of all services on the site and clearly mark the same. The mains and services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on the site. Whilst MME will take all care to avoid damage to any hidden services, the Client agrees to indemnify MME in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per this clause 8.1.
It is the intention of MME, and agreed by the Client, that it is the responsibility of the Client to:
ensure that MME has clear and free access to the site at the agreed date/s and time/s to enable MME to undertake the Services. MME shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways, concreted or paved or grassed areas and gardens or landscaping) unless due to MME’s negligence;
ensure that the work area and surrounds are protected and free from hazards (including but not limited to flammable materials), fume extracted and ventilated. MME accepts no liability whatsoever in this respect; and
provide MME with facilities, as specified by the MME, (including, but not limited to, a suitable free power source) for the duration of the Services.
9. Compliance with Laws
The Client and MME shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services, including any WorkSafe guidelines regarding health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
The Client shall obtain (at the expense of the Client) all licenses, approvals, applications and permits that may be required for the Services.
MME has not and will not at any time assume any obligation as the Client’s agent or otherwise which may be imposed upon the Client from time to time pursuant to the Health & Safety at Work Act 2015, including any subsequent regulations (the “HSW Act”) arising from the engagement of Services under this contract. Unless other agreed, the parties agree that for the purposes of the HSW Act, MME shall not be the person who controls the place of work in terms of the HSW Act.
MME and the Client agree that ownership of the Goods shall not pass until:
the Client has paid MME all amounts owing to MME; and
the Client has met all of its other obligations to MME.
Receipt by MME of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
It is further agreed that:
until ownership of the Goods passes to the Client in accordance with clause 10.1 that the Client is only a bailee of the Goods and unless the Goods have become fixtures must return the Goods to MME on request;
the Client holds the benefit of the Client’s insurance of the Goods on trust for MME and must pay to MME the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
the production of these terms and conditions by MME shall be sufficient evidence of MME’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with MME to make further enquiries;
the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for MME and must pay or deliver the proceeds to MME on demand;
the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of MME and must sell, dispose of or return the resulting product to MME as it so directs;
unless the Goods have become fixtures the Client irrevocably authorises MME to enter any premises where MME believes the Goods are kept and recover possession of the Goods;
MME may recover possession of any Goods in transit whether or not delivery has occurred;
the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of MME;
MME may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
11. Personal Property Securities Act 1999 (“PPSA”)
Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
these terms and conditions constitute a security agreement for the purposes of the PPSA; and
a security interest is taken in all Goods and/or collateral (account) – being a monetary obligation of the Client to MME for Services – that have previously been supplied and that will be supplied in the future by MME to the Client.
The Client undertakes to:
sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which MME may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
indemnify, and upon demand reimburse, MME for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of MME; and
immediately advise MME of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.
MME and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
Unless otherwise agreed to in writing by MME, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
The Client shall unconditionally ratify any actions taken by MME under clauses 11.1 to 11.5.
12. Security and Charge
In consideration of MME agreeing to supply the Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
The Client indemnifies MME from and against all MME’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising MME’s rights under this clause.
The Client irrevocably appoints MME and each director of MME as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Client’s behalf.
13. Defects In Goods
The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify MME of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford MME an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which MME has agreed in writing that the Client is entitled to reject, MME’s liability is limited to either (at MME’s discretion) replacing the Goods or repairing the Goods.
Goods will not be accepted for return other than in accordance with 13.1 above.
Returns will only be accepted provided that:
the Client has complied with the provisions of clause 13.1; and
MME has agreed in writing to accept the return of the Goods; and
the Goods are returned at the Client’s cost within seven (7) days of the delivery date; and
MME will not be liable for Goods which have not been stored or used in a proper manner; and
the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
MME will not accept the return of Goods for credit.
Non-stocklist items or Goods made to the Client’s specifications are under no circumstances acceptable for credit or return.
For Goods not manufactured by MME, the warranty shall be the current warranty provided by the manufacturer of the Goods. MME shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
In the case of second hand Goods, the Client acknowledges that full opportunity to inspect the same has been provided and accepts the same with all faults and that no warranty is given by MME as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. MME shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
16. Consumer Guarantees Act 1993
If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by MME to the Client.
17. Intellectual Property
Where MME has designed, drawn, written plans or a schedule of Services, or created any products for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in MME, and shall only be used by the Client at MME’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of MME.
The Client warrants that all designs, specifications or instructions given to MME will not cause MME to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify MME against any action taken by a third party against MME in respect of any such infringement.
The Client agrees that MME may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which MME has created for the Client.
18. Default and Consequences of Default
Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at MME’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
If the Client owes MME any money the Client shall indemnify MME from and against all costs and disbursements incurred by MME in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, MME’s collection agency costs, and bank dishonour fees).
Further to any other rights or remedies MME may have under this contract, if a Client has made payment to MME, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by MME under this clause 18, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this contract.
Without prejudice to MME’s other remedies at law MME shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to MME shall, whether or not due for payment, become immediately payable if:
any money payable to MME becomes overdue, or in MME’s opinion the Client will be unable to make a payment when it falls due;
the Client has exceeded any applicable credit limit provided by MME;
the Client becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
Without prejudice to any other remedies MME may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions MME may suspend or terminate the supply of Services to the Client. MME will not be liable to the Client for any loss or damage the Client suffers because MME has exercised its rights under this clause.
MME may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are commenced by giving written notice to the Client. On giving such notice MME shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to MME for Services already performed. MME shall not be liable for any loss or damage whatsoever arising from such cancellation.
In the event that the Client cancels the delivery of Services the Client shall be liable for any and all loss incurred (whether direct or indirect) by MME as a direct result of the cancellation (including, but not limited to, any loss of profits).
Cancellation of orders for products made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
20. Privacy Act 1993
The Client authorises MME or MME’s agent to:
access, collect, retain and use any information about the Client;
(including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
for the purpose of marketing products and services to the Client.
disclose information about the Client, whether collected by MME from the Client directly or obtained by MME 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 Client.
Where the Client is an individual the authorities under clause 20.1 are authorities or consents for the purposes of the Privacy Act 1993.
The Client shall have the right to request MME for a copy of the information about the Client retained by MME and the right to request MME to correct any incorrect information about the Client held by MME.
21. Construction Contracts Act 2002
The Client hereby expressly acknowledges that:
MME has the right to suspend work within five (5) working days of written notice of its intent to do so if a payment claim is served on the Client, and:
the payment is not paid in full by the due date for payment and no payment schedule has been given by the Client; or
a scheduled amount stated in a payment schedule issued by the Client in relation to the payment claim is not paid in full by the due date for its payment; or
the Client has not complied with an adjudicator’s notice that the Client must pay an amount to MME by a particular date; and
MME has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction contract.
if MME suspends work, it:
is not in breach of contract; and
is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Client or by any person claiming through the Client; and
is entitled to an extension of time to complete the contract; and
keeps its rights under the contract including the right to terminate the contract; and may at any time lift the suspension, even if the amount has not been paid or an adjudicator’s determination has not been complied with.
if MME exercises the right to suspend work, the exercise of that right does not:
affect any rights that would otherwise have been available to MME under the Contract and Commercial Law Act 2017; or
enable the Client to exercise any rights that may otherwise have been available to the Client under that Act as a direct consequence of MME suspending work under this provision.
22. Service of Notices
Any written notice given under this contract shall be deemed to have been given and received:
by handing the notice to the other party, in person;
by leaving it at the address of the other party as stated in this contract;
by sending it by registered post to the address of the other party as stated in this contract;
if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
if sent by email to the other party’s last known email address.
Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
If the Client at any time upon or subsequent to entering in to the contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not MME may have notice of the Trust, the Client covenants with MME as follows:
the contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
the Client has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.
the Client will not without consent in writing of MME (MME will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
the removal, replacement or retirement of the Client as trustee of the Trust;
any alteration to or variation of the terms of the Trust;
any advancement or distribution of capital of the Trust; or
any resettlement of the trust property.
Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising hereunder, shall be submitted to, and settled by, either adjudication in accordance with the Construction Contracts Act 2002 and/or by arbitration in accordance with the Arbitration Act 1996 or its replacement(s).
The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the Tauranga Courts of New Zealand.
MME shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by MME of these terms and conditions (alternatively MME’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Services).
MME may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
The Client cannot licence or assign without the written approval of MME.
MME may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of MME’s sub-contractors without the authority of MME.
The Client agrees that MME may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for MME to provide Services to the Client.
Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contra