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TERMS & CONDITIONS OF TRADE

1. Definitions and Interpretation

1. Definitions: In these Terms and Conditions unless the context otherwise requires:

1. Supplier means, MeloYelo Limited and its successors and assigns, or any person acting on behalf of, and with the authority of MeloYelo Limited as Supplier.

2. Customer means the person(s) requesting the Supplier to provide the Goods as specified in any invoice, document or order, and if there more than one person requesting the Goods is a reference to each person jointly and severally, and also included the Guarantor.

3. Delivery means delivery of the Goods from the Supplier to the Customer.

4. Goods means all goods provided by the Supplier to the Customer at the Customer’s request from time to time, including goods on consignment.

5. Guarantor means any guarantor(s) of the Customer.

6. PPSA means the Personal Property Securities Act 1999.

7. Price means the price payable for the Goods in New Zealand dollars as agreed between the Supplier and the Customer subject to clause 4 of these Terms.

8. Terms means these terms and conditions.

2. Interpretation: In these Terms unless the context otherwise requires:

1. Any reference to a statute or regulation shall be deemed to extend to all statutes or regulations amending, consolidating or replacing the same.

2. The words “includes” or “including” are to be construed as being followed by “without limitation.n”

2. Acceptance

1. The Customer and Guarantor are taken to have accepted and are immediately bound, by these Terms if the Customer places an order for Goods and/or the Customer accepts Delivery.
2. These Terms may only be amended with the Supplier’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and the Supplier.
3. 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.
4. None of the Supplier’s suppliers or representatives are authorised to make any representations, statements, conditions or agreements not expressed by a director or manager of the Supplier in writing nor is the Supplier bound by any such unauthorised statements.
5. Any advice, recommendations, information, assistance or service provided by the Supplier in relation to the Goods provided is given in good faith, is based on information provided to the Supplier, and the Supplier’s own knowledge, and experience. Whilst it shall be the responsibility of the Customer to confirm the accuracy and reliability of the same in light of the use to which the Customer makes or intends to make of the Goods, human error is possible under these circumstances, and the Supplier shall make all effort to offer the best solution to the Customer.

3. Change in Control

1. The Customer shall give the Supplier not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including changes in the Customer’s name, address, contact phone or email. The Customer shall be liable for any loss incurred by the Supplier as a result of the Customer’s failure to comply with this clause.

4. Price and Payment

1. At the Supplier’s sole discretion the Price shall be either:

1. As indicated on any invoice provided by the Supplier to the Customer; or

2. The Price as at the date of Delivery according to the Supplier’s current price list.

2. The Supplier reserves the right to vary the Price as a result of increases beyond the Supplier’s reasonable control in the cost of materials or labour, or due to fluctuations in currency exchange rates.

3. At the Supplier’s sole discretion, a non-refundable deposit may be required.

4. Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by the Supplier, which (at the Supplier’s sole discretion) may be amended at any time upon serving the Customer with notice by email, and which shall become due:

1. on, or before, Delivery;

2. by way of instalments/progress payments in accordance with the Supplier’s payment schedule;

3. twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;

4. on the date specified on any invoice or other form as being the date for payment; or

5. failing any notice to the contrary, on the date which is seven (7) days following the date of any invoice given to the Customer by the Supplier.
5. Payment may be made by electronic/on-line banking, credit card (plus a surcharge of 3% of the Price), or by any other method as agreed to between the Customer and the Supplier.

6. Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to the Supplier an amount equal to any GST the Supplier must pay for any provision of Goods by the Supplier under this contract or any other agreement. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer 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.

5. Delivery

1. Delivery is taken to occur at the time that:

1. the Customer (or the Customer’s nominated carrier) takes possession of the Goods at the Supplier’s premises; or

2. the Supplier (or the Supplier’s nominated carrier) delivers the Goods to the Customer’s nominated address, even if the Customer is not present at the address.

2. At the Supplier’s sole discretion, the cost of Delivery is either included in, or in addition to, the Price.

3. The Customer must take Delivery, by receipt or collection of the Goods, whenever they are tendered for Delivery. In the event that the Customer is unable to take Delivery, as arranged, then the Supplier shall be entitled to charge a reasonable fee for redelivery and/or storage.

4. Any time or date given by the Supplier to the Customer is an estimate only. The Customer must still accept Delivery, even if late, and the Supplier will not be liable for any loss or damage incurred by the Customer as a result of Delivery being late.

5. The Goods are provided on the basis of specifications, information and instructions provided by the Supplier to the Customer (whether written or verbal). The Customer acknowledges that it is their responsibility to ensure that such are detailed sufficiently to satisfy their requirements.

6. The Customer acknowledges that items presented for repair may be replaced by refurbished Goods of the same type rather than being repaired.

6. Risk and Limitation of Liability

1. Risk of damage to or loss of the Goods passes to the Customer on Delivery, and the Customer must insure the Goods on or before Delivery.

2. If any of the Goods are damaged or destroyed following Delivery, but prior to ownership passing to the Customer, the Supplier is entitled to receive all insurance proceeds payable for the Goods. The production of these Terms by the Supplier is sufficient evidence of the Supplier’s rights to receive the insurance proceeds without the need for any person dealing with the Supplier to make further enquiries.

3. If the Customer requests the Supplier to leave Goods outside the Supplier’s premises for collection, or to deliver the Goods to an unattended address, then such Goods shall be left at the Customer’s sole risk.

4. The Customer acknowledges that any advice or recommendations by the Supplier are provided on the basis of the Supplier’s industry knowledge and experience only and shall not be deemed as specialist advice.

5. The Supplier, its directors, agents or employees will not be liable in any way for any form of loss or damage of any nature whatsoever suffered, whether arising directly or indirectly, by the Customer or any person related to or dealing with the Customer out of, in connection with or reasonably incidental to the provision of Goods by the Supplier to the Customer.

7.Title

1. The Supplier and the Customer agree that ownership of any Goods shall not pass until:

1. the Customer has paid the Supplier all amounts owing to the Supplier; and

2. the Customer has met all other obligations due by the Customer to the Supplier in respect of all contracts between the Supplier and the Customer.

2. Receipt by the Supplier 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, and until then the Supplier’s ownership or rights in respect of the Goods, and this contract, shall continue.

3. It is further agreed that, until ownership of the Goods passes to the Customer in accordance with clause 7.1

1. the Customer is only a bailee of the Goods and must return the Goods to the Supplier on request;

2. the Customer holds the benefit of the Customer’s insurance of the Goods on trust for the Supplier and must pay to the Supplier the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;

3. the Customer 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 Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for the Supplier and must pay or deliver the proceeds to the Supplier on demand;

4. the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Supplier and must sell, dispose of or return the resulting product to the Supplier as it so directs;

5. the Customer irrevocably authorizes the Supplier to enter any premises where the Supplier believes the Goods are kept and recover possession of the Goods;

6. the Supplier may recover possession of any Goods in transit, whether or not Delivery has occurred;

7. the Customer 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 the Supplier; and

8. the Supplier may commence proceedings to recover the Price of the Goods sold, notwithstanding that ownership of the Goods has not passed to the Customer.

8. Personal Property Security Act

Upon assenting to these Terms in writing the Customer acknowledges and agrees that:

1. these Terms constitute a security agreement for the purposes of the PPSA, as that term is defined in the PPSA; and

2. a security interest is taken in all Goods, previously provided (if any), and that will be provided in the future, by the Supplier to the Customer. The Customer undertakes to:

3. sign any further documents and/or provide any further information (such information to be complete, accurate and up to date in all respects) which the Supplier may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register. The Customer agrees to the Supplier registering a financing statement to protect its security interest under these Terms;

4. indemnify, and upon demand reimburse, the Supplier for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any registration made thereby;

5. not register a financing change statement or a change demand without the prior written consent of the Supplier; and

6. immediately advise the Supplier of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.

7. The Supplier and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms.

8. The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA.

9. Unless otherwise agreed to in writing by the Supplier, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.

10. The Customer shall unconditionally ratify any actions taken by the Supplier under clauses 8.1 to 8.5.

9. Security and Charge

1. In consideration of the Supplier agreeing to provide the Goods, the Customer 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 Customer either now or in the future, to secure the performance by the Customer of its obligations under these Terms (including the payment of any money).

2. The Customer indemnifies the Supplier from and against all the Supplier’s costs and disbursements including legal costs, on a solicitor and own client basis, incurred in exercising the Supplier’s rights under these Terms.

3. The Customer irrevocably appoints the Supplier and each director of the Supplier as the Customer’s true and lawful attorney(s) to perform all necessary acts to give effect to the provisions of this clause 9 including signing any document on the Customer’s behalf.

10. Customer’s Disclaimer

1. The Customer hereby disclaims any right to rescind, or cancel any contract with the Supplier or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by the Supplier and the Customer acknowledges that the Goods are bought relying solely upon the Customer’s skill and judgment.

11. Defects, Returns and Warranty

1. The Customer shall inspect the Goods on Delivery and shall within seven (7) days of such time (being of the essence) notify the Supplier of any alleged defect, error or omission, shortage in quantity, damage or failure to comply with the description or quotation. The Customer shall afford the Supplier an opportunity to inspect/review the Goods within a reasonable time following such notification if the Customer believes the Goods are defective in any way. If the Customer fails to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Supplier has agreed in writing that the Customer is entitled to reject, the Supplier’s liability is limited to either (at the Supplier’s sole discretion) re-providing the Goods or rectifying/repairing the Goods.

2. Returns will only be accepted provided that:

1. the Customer has complied with the provisions of clause 11.1; and

2. the Supplier has agreed in writing to accept the return of the Goods; and

3. the Goods are returned at the Customer’s cost within seven (7) days of Delivery; and

4. the Supplier will not be liable for Goods which have not been stored or used in a proper manner; and

5. 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.

3. The Supplier may in its absolute discretion accept non-defective Goods for return if they are still in the condition in which they were delivered and with all packaging material, brochure and instruction material in as new condition. If the Supplier agrees to the return of such Goods as stated in this clause 11.3 then the Customer will be responsible for all freight costs in returning the Goods to the Supplier’s nominated address.

4. For any Goods provided to the Customer on consignment the Customer agrees that the Supplier may recall these consigned Goods at any time on the giving of seven (7) day’s notice. The Customer agrees to be responsible for the cost of returning the Goods to the Supplier’s nominated address.

5. Subject to the conditions of warranty as follows and those (if any) that may be contained in any warranty supplied by the Supplier to the Customer, the Supplier warrants that if any defect in any of the Goods (or any part of it) becomes apparent and is reported to the Supplier, then the Supplier will either (at the Supplier’s sole discretion) replace or repair the Goods (or ay part(s) of it). The conditions applicable to this warranty are:

1. the warranty will be valid for the timeframe (after Delivery in accordance with clause 5) as specified by the Supplier;

2. If any defect does not materialise prior to the date provided in accordance with sub-clause (a), the Supplier will have no liability to the Customer under the warranty, and the Customer releases the Supplier from all claims for loss or damage in any way connected with the workmanship from that date;

3. the warranty shall cease, and the Supplier shall thereafter in no circumstances be liable under the terms of the warranty, if the Goods are repaired or altered without the Supplier’s consent; and

4. in respect of all claims the Supplier shall not be liable to compensate the Customer for any delay in either replacing or remedying the Goods or in properly assessing the Customer’s claim.

6. Notwithstanding clauses 11.1 to 11.5, the Supplier shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:

1. the Customer failing to properly maintain or store the Goods;

2. the Customer using the Goods for any purpose other than that for which they were designed;

3. the Customer continuing the use of the Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;

4. the Customer failing to follow any instructions or guidelines provided by the Supplier; or

5. fair wear and tear, any accident, or act of God.

7. For Goods (or any part(s) of it) not manufactured by the Supplier, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Supplier 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. The Customer is responsible for the cost of returning the Goods (or any part(s) of it) to the Supplier or the manufacturer under any warranty, and you may be responsible for additional costs including freight.

8. In the case of second-hand Goods, the Customer acknowledges that they have had full opportunity to inspect the same and that they accept the same with all faults and that no warranty is given by the Supplier as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Supplier shall not be responsible for any loss or damage to the Goods, or caused thereby, or any part thereof however arising.

12. Consumer Guarantees Act 1993

1. If the Customer is acquiring Goods for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the provision of Goods by the Supplier to the Customer.

1. Default and Consequences of Default

1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of five percent (5%) per annum above the then current overdraft rate charged by the Supplier’s bankers (and at the Supplier’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

2. If the Customer owes the Supplier any money the Customer shall indemnify the Supplier from and against all costs and disbursements incurred by the Supplier in recovering the debt (including legal costs on a solicitor and own client basis, the Supplier’s collection agency costs and bank dishonour fees).

3. Further to any other rights or remedies the Supplier may have under this contract, if the Customer has made payment to the Supplier by credit card, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Supplier under this clause 13 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this contract.

4. Without prejudice to any other remedies the Supplier may have, if at any time the Customer is in breach of any obligation (including those relating to payment, whether or not the payment is due to the Supplier) the Supplier may suspend or terminate the provision of Goods to the Customer, and any of its other obligations under the Terms. The Supplier will not be liable to the Customer for any loss or damage the Customer suffers because the Supplier has exercised its rights under this clause.

5. Without prejudice to the Supplier’s other remedies at law, the Supplier shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable if:

1. any money payable to the Supplier becomes overdue, or in the Supplier’s opinion the Customer will be unable to make a payment when it falls due;

2. the Customer becomes insolvent, commits and act of bankruptcy, 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

3. a receiver, manager, liquidator (provisional or otherwise), statutory manager or similar person is appointed in respect of the Customer or any asset of the Customer.|

13. Cancellation

1. The Supplier may cancel any contract to which these Terms apply, or cancel Delivery at any time before the Goods are delivered, by giving written notice to the Customer. On giving such notice the Supplier shall repay to the Customer any money paid by the Customer for the Goods. The Supplier shall not be liable for any loss or damage whatsoever arising from such cancellation.

2. In the event that the Customer cancels this contract, or Delivery, the Customer shall be liable for any and all loss incurred (whether direct or indirect) by the Supplier as a direct result of the cancellation (including any loss of profits).

14. Privacy Act 1993

1. The Customer authorises the Supplier (or the Supplier’s authorised representative) to:

1. access, collect, retain and use any information about the Customer;

1. (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer’s creditworthiness; or

2. for the purpose of marketing products to the Customer.

2. disclose information about the Customer, whether collected by the Supplier from the Customer directly or obtained by the Supplier 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.

2. Where the Customer is an individual the authorities under clause 15.1 are authorities or consents for the purposes of the Privacy Act 1993.

3. The Customer shall have the right to request the Supplier for a copy of the information about the Customer retained by the Supplier and the right to request the Supplier to correct any incorrect information about the Customer held by the Supplier.

15. General

1. The failure by the Supplier to enforce any provision of these Terms shall not be treated as a waiver of that provision, nor shall it affect the Supplier’s right to subsequently enforce that provision. If any provision of these Terms shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

2. These Terms and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.

3. The Supplier shall be under no liability whatsoever to the Customer for any indirect, special and/or consequential loss and/or expense (including loss of profit, revenue, business, contracts or anticipated savings) suffered by the Customer, or any loss or expense resulting from a claim by any third party, arising out of a breach by the Supplier of these Terms (alternatively the Supplier’s liability shall be limited to damages which under no circumstances shall exceed the Price).

4. The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Supplier nor to withhold payment of any invoice because part of that invoice is in dispute.

5. The Supplier may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.

6. The Customer agrees that the Supplier may amend these Terms at any time. If the Supplier makes a change to these Terms, then that change will take effect from the date on which the Supplier notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for the Supplier to provide Goods to the Customer.

7. The Customer warrants that it has the power to enter into this contract and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this contract creates binding and valid legal obligations

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