Terms and Condition of Supply
Definitions
“Collateral” means that defined in Clause 9.1.
“Contract” means the contract for the Supply of Products by Multigate to the Customer pursuant to an Order which incorporates these Terms and any other term as agreed in Writing by Multigate.
"Customer" means the party placing the Order with or purchasing Products from Multigate.
“Delivery” means delivery of the Products in accordance with clause 8.
"Multigate" means Multigate NZ Limited, NZ Company Number 8546387of c/- Burton Partners, Level 3, 10 Viaduct Harbour Avenue, Auckland Central, New Zealand.
“Order” means an offer by a Customer to purchase Products from the Company pursuant to the Terms.
“Products” means all goods and services supplied by Multigate to the Customer.
“Terms” means these Terms and Conditions of Supply as varied and applicable from time to time.
“Writing” includes letters, fax and email.
Nothing in these Terms shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law and which by law cannot be excluded, restricted or modified.
1. APPLICATION
1.1. These Terms may be varied from time to time by Multigate. The current Terms at the time of placing an Order or part of an Order shall apply to such Orders.
1.2. The updated version of the Terms will be published on the Multigate website following any amendment to the Terms and will apply to any subsequent Order.
2. ORDER AND ACCEPTANCE
2.1. Each Order must be placed pursuant to these Terms.
2.2. Multigate reserves the right to accept or reject in whole or in part any Orders. Acceptance may be verbal, by conduct or in Writing at Multigate’s discretion.
2.3. Orders may not be varied or cancelled by the Customer without Multigate’s Written consent.
2.4. For the avoidance of doubt, none of the terms and conditions contained in any document or other instrument supplied by or on behalf of the Customer (including, but not limited to, any purchase order from the Customer) shall apply to or form part of the Contract, except and to the extent otherwise agreed in Writing by Multigate.
3. PRICE & FREIGHT HANDLING FEE
3.1. The prices of the Products are those ruling at the date of issue of the invoice unless agreed by Multigate in Writing that the prices are fixed for a period of time.
3.2. Unless otherwise agreed, the price of the Products may be subject to change. If there is a change in the price of the Products, Multigate shall give the Customer reasonable notice of the change prior to it taking effect. Unless otherwise stated, all prices are exclusive of GST.
3.3. Unless otherwise agreed in Writing, Orders with a value less than NZ$250 (excluding GST) will incur a handling fee of NZ$50 + GST.
4. CREDIT POLICY AND PAYMENT
4.1. Multigate may accept an Order and allow credit for part or all of its value. Where credit approval is given, payment must be made within thirty (30) days of the date of invoice, or as otherwise arranged between
Multigate and the Customer in Writing.
4.2. The Customer shall not be entitled to set off against or deduct from the price of Products supplied any sums owed or claimed to be owned to the Customer by Multigate.
4.3. In the event that the Customer is in breach of the credit period referred to in clause 4.1, Multigate may, at its option, do any or all of the following:
4.3.1. terminate any Order submitted by the Customer in respect of Products which have, at the time
of the breach, not yet been Delivered to the Customer;
4.3.2. alter or remove the Customer's credit period, including requiring the Customer to pay the price
of the Products to Multigate prior to or upon Delivery of the Products; and
4.3.3. enforce its rights pursuant to clause 5.
5. DEFAULT
5.1. In the event the Customer breaches these Terms, fails to make payment in accordance with these Terms, or suffers an insolvency event (including without limitation having a receiver, liquidator, administrator (or similar) appointed, resolving to wind up, or proposing a compromise with creditors) the Customer shall be in default.
5.2. Multigate may charge interest on all amounts not paid by the Customer in accordance with these Terms at a rate of 2% per month from and including the due date and accruing monthly therefrom until and including the date of payment.
5.3. If the Customer is in default, Multigate may elect to terminate these Terms, cease the supply of any Order, or require the default to be remedied in which case the Customer must remedy such default within any time frame provided by Multigate in its discretion. The Customer indemnifies and must reimburse Multigate for all
expenses, costs (including reasonable legal costs) and disbursements incurred by Multigate in resulting from a default by the Customer including in pursuing any amounts unpaid from time to time.
6. RETENTION OF TITLE
6.1. Ownership of the Products supplied by Multigate to the Customer remains vested in Multigate and shall not pass to the Customer until such time as those Products have been paid for in full.
6.2. Until ownership has passed in accordance with clause 6.1:
6.2.1. The Customer acknowledges that it acts as a bailee of the Products;
6.2.2. The Customer must designate and keep the Products in such a way as to indicate that the
Products are the property of Multigate and upon request must advise Multigate of the location of
the Products;
6.2.3. The Customer must keep the Products fully insured against loss and damage and provide
evidence of such insurance on request by Multigate;
6.2.4. If the Products are attached, fixed, or incorporated into any of the Customer’s property, by way
of any manufacturing or assembly process by the Customer or any third party, title in the
Products shall remain with Multigate until payment for all Products has been made in full, and
where those Products are mixed with other property so as to be part of, or a constituent of any
new products, title to these new products shall be deemed to be assigned to Multigate as
security in accordance with clause 9 for all payments due under these Terms; and
6.2.5. The Customer shall stand in a fiduciary relationship with Multigate and shall owe fiduciary
obligations to Multigate in respect of the Products including to hold any proceeds of sale of the
Products in trust for Multigate.
6.3. The Customer irrevocably authorises Multigate, without liability, to:
6.3.1. enter any of the Customer’s properties or premises, at any reasonable time, to inspect and/or
remove any Products not paid for in full by the Customer. Multigate shall not be liable for costs,
damages or expenses or any other losses incurred by the Customer or any third party as a
result of this action, nor shall it be liable in contract or in tort or otherwise in any way
whatsoever; and
6.3.2. resell the Products at such price and upon such terms as it sees fit and the proceeds of such
sale, after deduction of all expenses, shall be deducted from the amount due by the Customer to
Multigate.
7. RISK
7.1. Risk in all Products supplied by Multigate to the Customer passes to the Customer from the time of Delivery.
8. DELIVERY
8.1. Delivery of the Products shall be deemed to have taken place when the Products are delivered at the Customer’s nominated address.
8.2. The Customer’s nominated address shall be the address specified in the Order or as otherwise instructed and accepted by Multigate.
8.3. Multigate will use its best efforts to adhere to any Delivery times made known to the Customer and will inform the Customer as soon as reasonably possible of any delays. Multigate is not liable for any loss, damage, expense or delay occasioned to the Customer or its customers arising from failure by Multigate or Multigate’s nominated carrier to Deliver on time.
8.4. Failure by Multigate or its nominated carrier to Deliver on time or at all shall not amount to a breach of this Contract.
8.5. Multigate may at its option Deliver the Products to the Customer in any number of instalments. If Multigate Delivers any of the Products by instalments, these Terms are severable as to each instalment.
9. PERSONAL PROPERTY SECURITIES ACT 1999 (“PPSA”)
9.1. These Terms constitute a security agreement for the purposes of the Personal Property Securities Act 1999 (“PPSA”).
9.2. Unless the context requires otherwise, the terms used in these Terms have the meanings given to them in, or by virtue of, the PPSA.
9.3. In consideration of Multigate agreeing to supply Products to the Customer, the Customer:
9.3.1. grants to Multigate, at Multigate’s discretion, a Security Interest and/or a PMSI in the Products
(which for the purposes of this clause 9 includes goods of the Customer incorporating Products;
9.3.2. agrees that any Products supplied to the Customer and any proceeds of sale of such Products
will be subject to:
(a) the Security Interest or PMSI granted in these Terms; and
(b) these Terms,
9.3.3. agrees that the Security Interest or PMSI has attached or will attach to all Products supplied
now or in the future to the Customer when the Customer takes possession of the Products, and
that the attachment of the Security Interest or PMSI has not in any way been deferred or
postponed;
9.3.4. the Security Interest attaches to any proceeds from the sale of the Products by the Customer;
and
9.3.5. agrees to treat Multigate’s Security Interest or PMSI in the Products as a continuing and
subsisting security with priority over a registered general security and any unsecured creditors.
9.4. Multigate may, by notice to the Customer at any time, require the Customer to take all steps that Multigate considers necessary or desirable to:
9.4.1. ensure that any Security Interest or PMSI arising under it, is enforceable against the Customer
or any third party; and
9.4.2. protect, perfect, record, or better secure Multigate’s position as a first ranking security.
9.5. The Customer acknowledges that Multigate reserves the right to register a financing statement in respect of any Products supplied by Multigate to the Customer under these Terms and that Multigate can require the Customer to pay the cost and expense of registering a financing statement or a financing change statement.
9.6. The Customer waives the right to receive a copy of any notice, verification statement confirming registration of a financing statement or a financing change statement relating to the Security Interest or PMSI under these Terms, unless the notice or statement is required by law and cannot be excluded.
9.7. The Customer agrees:
9.7.1. not to allow any person to register a financing statement over any of the Products without
Multigate’s prior written consent;
9.7.2. that the Customer must immediately notify Multigate if the Customer becomes aware of any
person taking steps to register a financing statement in relation to the Products; and
9.7.3. to perfect and maintain any Security Interest or PMSI that the Customer may have in the
Products under the PPSA.
9.8. The parties agree that nothing in sections 114(i)(a), 133 and 134 of the PPSA are excluded. The Customer
waives its rights under sections 121, 125, 129, 131 and 132 of the PPSA.
9.9. If the Customer becomes insolvent, without prejudice to any of Multigate’s other rights:
9.9.1. the Customer’s right to dispose of the Products in the ordinary course of business in accordance
with the PPSA and any of the Customer’s other rights in respect of the Products immediately
cease; and
9.9.2. the Customer must immediately return the Products to Multigate in which title has not passed as
provided for under clause 6.
9.10. Multigate may allocate amounts received from the Customer in any manner it determines, including in any manner required to preserve any Security Interest it has in any Products.
9.11. The Customer grants a security interest to Multigate in each and every part of the Products as security for payment of that part and of each other part or parts of the Products and for any other amounts owing by the Customer to Multigate from time to time, and for the performance by the Customer of all the Customer’s other obligations to Multigate from time to time, (“Customer’s indebtedness and obligations”). For the purposes of section 36(1)(b) of the PPSA, and to ensure maximum benefit and protection for Multigate by virtue of section 36(1)(b)(iii) of the PPSA, the Customer confirms and agrees that the Customer intends to and does grant to Multigate, as security for the Customer’s indebtedness and obligations, a Security Interest in the Products and any proceeds from the sale of the Products by the Customer.
9.12. The Customer acknowledges due notice of this Security Interest with acceptance of these Terms.
10. PRODUCTS RETURN AND CLAIMS POLICY
10.1. This clause 10 is subject to clause 11 and any other statutory or legal right whether under these Terms or otherwise.
10.2. All claims must be made to Multigate’s Customer Service Department within the standard notification period of 10 days from Delivery, except as noted below:
10.2.1. If Products have been incorrectly supplied or damaged in transit - Multigate will, at its option:
(a) issue a credit to the Customer upon receipt of the incorrectly supplied or damaged Products from the Customer; or
(b) send replacement Products to the Customer.
10.2.2. The processing of claims for Products lost in transit or short delivered will be subject to prior
verification against Delivery/receipt documentation maintained by Multigate’s carriers. Where the Products are proven to have been undelivered, Multigate will issue a credit to Customer or re-deliver the Products.
10.2.3. If the Customer has ordered Products in error – Multigate will accept return of the Products
subject to Customer satisfying following conditions within ten (10) days of invoice date:
(a) The Products are returned to Multigate’s business address detailed above in their original packaging, unopened and have a remaining shelf life of 6 months or more; and
(b) The Customer pays for the return of the Products; and
(c) The Customer pays Multigate a re-stocking fee. The applicable charge, which is a reasonable pre-estimation of the loss incurred by Multigate to process and re-stock the Products the subject of the return, may be requested from Multigate’s Customer Service department.
10.3. Where Multigate accepts the return of Products, the Products must be returned in the condition in which it was shipped to the Customer. The Products must be sealed in the original cartons to protect against transit damage.
10.4. Claims regarding allegedly defective Products - Multigate's liability for defects to Products manufactured or distributed by it is limited, to the extent permitted by law, to Multigate making good any defects by, at its option:
10.4.1. repairing the defects; or
10.4.2. replacing the affected Products, within a period not exceeding twelve (12) calendar months after
the Products have been Delivered or within the recommended shelf life of the Products,
whichever is the shorter period, so long as:
10.4.3. defects have arisen solely from faulty materials or workmanship of Multigate; and
10.4.4. the Products have not received maltreatment, inattention or interference.
10.5. Pricing Claims – Claims for credit based on incorrect pricing of the Products or other Multigate charges must be made to Multigate within 10 days of Delivery.
10.6. The Customer will notify Multigate within 24 hours of becoming aware of an adverse event alleged to have occurred as a result of using a Multigate Product.
11. LIMITED LIABILITY
11.1. The parties agree that they are in trade and agree that the provisions of the Consumer Guarantees Act 1993 do not apply in respect of any Products supplied under these terms.
11.2. Except as provided in these Terms, and to the extent permitted by law, all warranties, guarantees, conditions, terms and obligations expressed or implied by law or otherwise, as to merchantability, description, quality, suitability, fitness of the Products for any purpose, design, assembly, installation, materials, workmanship or otherwise are expressly excluded.
11.3. To the extent permitted by law, Multigate is not liable for any loss, damage, liability, cost or expense, including (but not limited to) indirect and consequential loss, loss of profit, loss of market, or the consequences of delay arising out of the design, supply or use of the Products, defect in materials or workmanship, negligence on the part of Multigate, its employees, agents, and representatives or for any other reason whatsoever.
11.4. To the extent permitted by law, Multigate limits its liability in respect of any cost, damage, liability, expense or loss (including those caused or contributed to by Multigate’s negligence or breach of this Contract), at its option to:
11.4.1. the replacement of the Products or the supply of equivalent Products;
11.4.2. the repair of the Products;
11.4.3. the payment of the cost of replacing the Products or of acquiring equivalent Products; or
11.4.4. the payment of the cost of having the Products repaired.
11.5. The Customer acknowledges that Multigate Delivers the Products in full cartons. If the Products are removed from Multigate’s cartons and sold or otherwise distributed in packaging that is inferior to the original Multigate packaging, the integrity of the Products may be affected. In such case, the Customer acknowledges that any warranty or guarantee given by Multigate for the Products is, to the full extent permissible by law, void, and the Customer is liable for any injury, loss, damage, cost or expense arising from or as a result of the use of the Products.
12. INDEMNITY
12.1. The Customer hereby releases and indemnifies Multigate and agrees to forever keep Multigate indemnified from any and all costs (including reasonable legal costs), claims, damage, liability, expense or loss, including claims of death, personal injury, damage to property, and consequential loss (including loss of profits) (“Liability”) which may be made against the Multigate in connection with:
12.1.1. the supply of the Products; and/or
12.1.2. Customer’s breach of this Contract, except to the extent that such Liability is directly caused by Multigate.
13. INTELLECTUAL PROPERTY
13.1. In this clause, “Intellectual Property” includes all methodologies, processes, inventions, products, know-how, discoveries, copyright, trademarks, patents and designs, including applications for the same as applicable, whether or not registrable including any invention of or developments or improvements to equipment, methods, techniques or products (including the Products).
13.2. All Intellectual Property rights in and associated with the Products supplied (including production, development and supply of the same) remain with and vest in Multigate.
13.3. To the extent permitted by law, the description, illustrations and performances contained in catalogues, price lists and other advertising matter do not form part of the Contract or of the description applied to the Products.
14. ASSIGNMENT
14.1. The Customer may not assign, transfer or subcontract any of its rights or obligations under these Terms without the prior Written consent of Multigate.
15. WAIVER
15.1. The failure or delay of Multigate in exercising any right, remedy, power or privilege it has under these Terms will not operate as a waiver of that right, power or privilege.
15.2. A right, remedy, power or privilege will only be waived if expressly agreed by Multigate in Writing.
15.3. A waiver by Multigate of any matter does not prejudice Multigate’s rights in respect of any subsequent or other matter.
16. FORCE MAJEURE
16.1. Multigate shall not be liable whatsoever for the consequences of any failure on its part to perform or delay in performing any obligation pursuant to these Terms to the extent that such failure or delay is due directly or indirectly to fire, flood, any acts of God, war, riots, strikes, lock outs, trade disputes, break downs, mechanical failures, earthquakes, interruptions of transport, Government action, civil disturbance, theft, pandemic, epidemic, inability of Multigate’s suppliers to supply necessary materials and/or services and any other matter beyond Multigate’s control (“Force Majeure Event”).
16.2. Without limiting clause 16.1, if a Force Majeure Event occurs, Multigate may:
16.2.1. totally or partially suspend any Order, any part of an Order or any Deliveries relating to an Order during any period in which Multigate may be prevented or hindered from Delivering by its normal means of supply or delivery due to that Force Majeure Event; and/or
16.2.2. elect to extend at its discretion the period for performance of an obligation under these Terms as
is reasonable in all the circumstances.
17. JURISDICTION
17.1. All agreements and transactions made pursuant to these Terms are governed and will be construed in
accordance with the laws of New Zealand.
17.2. Multigate and the Customer irrevocably submit to the jurisdiction of the courts of New Zealand and all courts called to hear appeals from the courts of New Zealand in respect of these Terms or its subject matter.
18. ENTIRE AGREEMENT
18.1. These Terms supersede all previous agreements between Multigate and the Customer and embody the entire agreement in relation to the supply of Products from Multigate to the Customer.
18.2. Where these Terms conflict with the Customer’s terms and conditions, the Customer acknowledges that by placing an Order for the Products to be supplied by Multigate, the Customer accepts that these Terms will
prevail.
19. VARIATION
19.1. Subject to clause 1, no variation to these Terms in respect of a submitted Order shall be effective unless in Writing and signed by Multigate and the Customer or unless it is otherwise allowed by these Terms.
20. INFORMATION
20.1. The Customer acknowledges and agrees that any personal information provided to Multigate pursuant to these Terms will be managed in accordance with the Privacy Act 2020 and Multigate’s Privacy Policy, which can be found on the Multigate website.
20.2. The Multigate Privacy Policy may be changed from time to time and is effective immediately upon posting such changes on the Multigate website or otherwise in writing.
21. SEVERANCE
21.1. If any part of these Terms are invalid, void, illegal or unenforceable, they shall be severed and the remaining provisions shall not be affected, prejudiced or impaired by such severance.