Conditions of Sale
1. Definitions – In these Conditions of Sale:
“Conditions” means these Conditions of Sale;
“Company” means B&R Enclosures Limited NZBN 9429041348307;
“Purchaser” means the entity purchasing the Goods.
“Authorised Officer” means a Director of the Company or a Commercial Manager as appointed by the Company;
“Goods” means the product and/or service supplied by the Company to the Purchaser from time to time;
“Delivery Date” means the date delivery occurs in accordance with clause 6.3;
“Guarantor” means the guarantor listed in the Guarantee and Indemnity document if applicable;
“Related Company” means B&R Enclosures Pty Ltd ABN 97 007 587 082, B&R Ex Systems Pty Ltd ABN 18 063 472 640 or any other company that is related to the Company for the purposes of section 2(3) of the Companies Act 1993, except that “company” in that section shall mean a company wherever incorporated.
- These Conditions will be deemed incorporated in any order placed by the Purchaser and any acceptance of a Purchaser’s order by the Company will be deemed subject to these Conditions. These Conditions override and replace any other conditions.
- No variation or cancellation of any of these Conditions shall be binding on the Company unless agreed in writing by an Authorised Officer of the Company. No agent or representative of the Company has the authority to waive or alter these terms and conditions.
3. Precedence – In the event of conflict between these Conditions and those which may be included in, or implied by, any document forming part of any enquiry, specification, order or contract then these Conditions shall prevail except insofar as they are expressly varied by the Company in writing. If any condition is contrary to or excluded by law these Conditions shall be modified but only to the extent of excluding that part of the Conditions affected.
4. Quotations and Orders
- Where a quotation is given, these Conditions shall form part of that quotation.
- A quotation by the Company to the Purchaser (whether written or oral) is not an offer but is an invitation only for the Purchaser to place an order based on that quotation. Subject to clause 5, any quotation is valid for 30 days (unless otherwise stated in the quotation), after which period the quotation shall expire. Notwithstanding the foregoing, the Company may withdraw a quotation at any time by notifying the Purchaser.
- A quotation only includes the Goods specified in it and where the Goods quoted are ex stock, the quotation is subject to the continued availability of the Goods.
- Every order shall be submitted by the Purchaser to the Company in writing. The Company reserves the right to refuse any order for Goods, and no order shall be binding until accepted by the Company in writing.
- Notwithstanding anything specified in any quotation, if an order is placed in response to a quotation and the Delivery Date required exceeds a period of sixty (60) clear days then the Company reserves the right to amend the quotation and price to reflect any increase in the cost of materials or labour or increase in the Consumer Price Index.
- The Company also reserves the right to amend a quotation if alternations are subsequently made to the design or specifications of the Goods.
- Unless confirmed in writing by an Authorised Officer of the Company any verbal agreement to vary, undertakings, assurances or understandings relevant to the quotation and Conditions shall not be binding.
- All prices are subject to change without notice and orders are accepted by the Company on the condition that the Purchaser will be invoiced at the prices ruling at the Delivery Date. Every endeavour will be made to notify the Purchaser of any increase in price.
- Without limiting clause 4.5, unless specified otherwise, the prices in any quotation or offer:
(a) are an indication only and refer to the prices effective at the time of the quotation or offer;
(b) are quoted in New Zealand Dollars;
(c) are strictly net of any trade or other discount;
(d) do not include any freight charges; and
(e) do not include Goods and Services Tax or other government taxes.
- All prices shown in published catalogues or price lists are recommended selling prices only and there is no obligation on the part of the Company to maintain such prices.
- The delivery period included in any quotation commences from the date the Company receives sufficient information to proceed with manufacturing without interruption or from the date the Company receives the Purchaser’s written order, whichever is the later date.
- Quoted delivery dates are subject to confirmation when an order is accepted by the Company.
- Delivery occurs when the Goods are made available to the Purchaser or, in the case of the Purchaser being responsible for carriage, when the Goods are made available to the Purchaser’s nominated carrier or shipping agent.
- Where carriage of the Goods is the Purchaser’s responsibility and the Purchaser requests the Company to arrange delivery of the Goods to its premises or premises nominated by the Purchaser and the Company agrees to arrange delivery, the deliveries will be dispatched by the Company at the Purchaser’s risk. Any complaints of tampering or shortages in materials must be submitted promptly by the recipient to the carrier or shipping agent.
- If the Purchaser has not provided instructions for the delivery of the Goods or has not promptly provided for their collection, the Company may store the Goods within its factory, warehouse or nearby locations at a cost to the Purchaser and without any responsibility or liability on the part of the Company for damage to or the condition of the Goods when ultimately delivered or collected as the case may be.
- Unless otherwise agreed by an Authorised Officer of the Company in writing, the Company shall not in any event be liable to the Purchaser for any delay in the delivery or any non-delivery of the Goods or any part of them. Such delays may include, but are not necessarily limited to:
(a) circumstances beyond the reasonable control of the Company, being any cause which may delay the manufacturing process, including but not limited to: work interruptions, trade union actions, delays on the part of suppliers, suspension of transportation, deficiencies in electrical supply, fires or accidents;
(b) insufficient, inaccurate or delayed communication on the part of the Purchaser of specifications which are required to complete the order;
(c) delays on the part of the Company and its suppliers in acquiring raw materials;
(d) instructions accepted by the Company to modify after the receipt of the order;
(e) default or delay in complying with payment conditions on the part of the Purchaser;
(f) the Company’s production schedules;
(g) war, invasion, act of foreign enemy, hostilities (whether war has been declared or not), civil war, rebellion, revolution, insurrection or military or usurped power;
(h) any statute, rules, regulations, order or requisitions issued by any government department, council or other duly constituted authority; or
(i) strikes, lockouts, breakdowns of plant or any other causes (whether or not of a like nature) beyond the Company’s control.
- Unless otherwise agreed by the Company:
(a) for deliveries outside New Zealand, all freight costs will be charged to the Purchaser; and
(b) for deliveries within New Zealand:
(i) if the order is over $500, the costs of freight will be paid for by the
(ii) if the order is less than $500, the Purchaser must nominate its preferred
freight method and will be responsible for all freight charges.
- Freight cost on return of any Goods which are not in accordance with the Purchaser’s order will only be paid by the Company if returned by the Company’s nominated carrier.
8. Packing – Unless stated otherwise in the relevant quotation the price quoted includes packing in accordance with the Company’s standard practice. Any other packing requested by the Purchaser or deemed necessary by the Company will be charged in addition to the price quoted.
- If the Company has accepted the Purchaser’s application for credit, each account is payable within 30 days of the end of the month of despatch or collection of the Goods unless otherwise agreed in writing. The Company is not obliged to continue to supply Goods to the Purchaser on credit and may at any time give notice to the Purchaser requiring any order for Goods delivered after such notice to be paid for on delivery or prior to despatch of the Goods.
- If a credit application has not been accepted, Goods must be paid for prior to despatch.
- The Purchaser acknowledges that the Company may:
(a) refuse to grant credit to the Purchaser;
(b) withdraw or vary credit facilities at the Company’s absolute discretion without prior notice; or
(c) withhold supply irrespective of whether an order has been accepted or not if for any reason
the Company determines in its absolute discretion that no further credit is to be extended to the Purchaser.
- For delivery of goods outside of New Zealand, at the absolute discretion of the Company, an Authorised Officer of the Company may accept an irrevocable letter of credit payable at sight.
- If payment for Goods is not made when due, the Purchaser must:
(a) pay interest at the rate of two (2) per cent per annum above the rate charged from time to time to the Company by its bank for overdraft accommodation during the period any amount remains unpaid, calculated on a daily basis. A certificate signed by a manager of the Company’s bank will be conclusive evidence of the rate charged by the bank to the Company for overdraft accommodation; and
(b) reimburse the Company for all costs (including legal costs on a full indemnity basis) incurred by the Company in collecting any late payments.
- The imposition of interest charges pursuant to this clause will not be regarded as allowing any time for payment of any amount owing. All overdue amounts will remain immediately due and payable to the Company and the Company may take legal proceedings at any time for recovery of any overdue amounts and all costs in doing so are recoverable from the Purchaser on an indemnity basis.
10. Acceptance – Without limiting the Purchaser’s obligations under 6.4, the Purchaser must inspect the Goods immediately upon delivery and must within seven (7) days from the date of inspection give written notice to the Company of any alleged defect in the Goods, or other alleged breach of contract by the Company. The Purchaser waives any claim for shortage of any Goods delivered if a claim in respect of short delivery has not been lodged with the Company within 7 days from the date of receipt of the Goods by the Purchaser.
- Goods which are not defective may not be returned to the Company for credit unless prior consent has been given by an Authorised Officer of the Company and then will only be accepted under the following conditions:
(a) freight and packing are prepaid by the Purchaser and a packing list is enclosed with the returned Goods;
(b) the Goods are in new condition and are approved as such, on receipt, by the Company’s quality controller; and
(c) the Goods are accompanied by a GRA (Goods Return Authorisation) provided by the Company.
- Credit will only be allowed on the original invoiced price (less any applicable discount) less a restocking fee of fifteen (15) per cent of the net price.
- No credit will be allowed for non-standard or specifically procured Goods.
12. Damage or Loss In-Transit – Where carriage of the Goods is the responsibility of the Company, the Company will repair or may replace free of charge Goods lost or damaged in transit to the point of delivery provided written notice of such loss or damage is given to the Company within three days of delivery or expected delivery, or within such times as will enable the Company to comply with the carrier’s conditions of carriage relating to loss or damage in transit (whichever is the earlier).
13. Cancellation or Variation – An order may be varied or cancelled only if an Authorised Officer of the Company gives its consent in writing. The Purchaser indemnifies the Company in respect of any loss or damage arising from any such variation or cancellation.
14. Purchaser’s Specification – The Company will not be deemed to have agreed to comply with any specifications and/or drawings referred to in any order unless the specifications and/or drawings have been produced to the Company prior to the acceptance of an order and are signed or otherwise acknowledged by an Authorised Officer of the Company.
15. Product Design – The Company engages in a policy of continuous development and improvement of its products. Therefore the Company reserves the right to alter the design and/or specifications of any product or equipment without notice and without incurring liability.
- The only conditions and warranties which are binding on the Company in respect of the state, quality or condition of the Goods supplied to the Purchaser are those described in clause 18 and those imposed and required to be binding by statute (including the Fair Trading Act 1986 (“FTA”) and Consumer Guarantees Act 1993 (“CGA”).
- The Purchaser warrants that the Goods are purchased for the purposes of on-selling to its own customers and, accordingly, that the Purchaser is not a ‘consumer’ as defined in the FTA and CGA. However, subject to clause 17, nothing in these Conditions will affect any rights that a person who is a ‘consumer’ for the purposes of the FTA or CGA may have under those Acts.
- Except as set out in clause 18 the Company will not be liable to the Purchaser for any liability, (including liability in negligence) loss or damage of whatever nature, consequential or otherwise, however suffered or incurred by the Purchaser, caused by or resulting directly or indirectly from the supply or manufacture of the Goods.
17. Business-to-Business Contracting Out – Consumer Guarantees Act 1993 – The Purchaser acknowledges and agrees that it is acquiring the Goods for the purposes of a business, and the provisions of the CGA will not apply to such supply.
- Goods which are the Company’s own are guaranteed against faulty workmanship, materials or design, for a period of twelve (12) months from the date of delivery, after which all liability on the part of the Company ceases. The guarantee does not apply in the following cases:
(a) defect arising from materials supplied by the Purchaser or from a design requested by the Purchaser;
(b) replacements or repairs resulting from normal wear of units and machinery, corrosive atmosphere, damage or injury caused by lack of care, insufficient inspection or maintenance, or improper use of the Goods; and
(c) defects arising from an event outside of the Company’s control such as fire, flood, earthquake or other natural calamity, motor vehicle or other accident, strike, civil unrest, terrorism or war.
- The guarantee consists of repairing, modifying or replacing the parts or units recognised as defective within the shortest reasonable time at the Company’s expense, inclusive of parts and labour, but exclusive of transport and/or travelling expense each of which shall be at the cost of the Purchaser.
- Subject to the above, the Company’s liability to the Purchaser is wholly limited to the original cost of the product sold. Any unauthorised repairs of or alterations to the Goods shall invalidate this warranty.
- The Purchaser must contact the Company’s office from which the Goods were purchased and provide details of the Purchaser’s order to which the Goods related and a detailed description of the fault and how and when it arose.
- In the case of Goods not manufactured by the Company or a Related Company, the Company undertakes that it will, if requested in writing by the Purchaser, make all reasonable endeavours in assisting the Purchaser to obtain from the manufacturer the benefit of any guarantee or warranty which the manufacturer may have expressly given as to the quality or fitness for any purpose of the Goods, except as may otherwise be provided for by law.
- The fulfilment of this undertaking shall constitute the Company’s sole liability in respect of any faulty Goods not manufactured by the Company or a Related Company.
- The Company shall not be liable for any injury, damages, expense, or loss of profit, direct or consequential, arising out of the use or installation of products supplied by the Company all of which are supplied at the sole risk of the Purchaser.
19. Determination of Damages
(a) any distress, execution or other legal process is levied upon any of the Purchaser’s assets; or
(b) the Purchaser suffers an insolvency event (defined below); or
(c) payment for Goods is not made when due; or
(d) the Purchaser breaches any material provision of the contract,
then, without prejudice to its rights under any other clause or at law, the Company may (but is not bound to do so):
(e) terminate the contract; and/or
(f) suspend delivery to the Purchaser of all or any outstanding orders; and/or
(g) require payment on delivery for all Goods delivered or to be delivered after the relevant event; and/or
(h) require immediate payment for any Goods delivered and not paid for by the Purchaser prior to the event.
- For the purposes of clause 19.1 above, “insolvency event” means in relation to the Purchaser, where the Purchaser suspends or ceases to conduct its principal business or threatens to do so; becomes or is presumed to be bankrupt; becomes or is presumed to be insolvent; makes or proposes to make any assignment, arrangement, compromise or composition with, or for the benefit of, any of its creditors; has any of its assets subject to any form of seizure or execution; has a receiver, liquidator, administrator, statutory manager or any similar insolvency administrator appointed; is removed from the Register of Companies; or suffers any analogous event.
20. Passing of Risk and Retention of Title
- Risk in the Goods shall pass to the Purchaser on delivery (as defined in clause 6.3). The Purchaser will have adequate insurance cover in place on and from delivery in respect of the Purchaser’s interest as bailee of the Goods and the Company’s interest as owner of the Goods.
- Whilst the risk in the Goods passes on delivery, legal and equitable title remains with the Company until payment in full for all debts accrued or owed by the Purchaser to the Company is received by the Company. Payment will not be deemed to be made until any cheque (or other form of payment) has been honoured or cleared.
- The Purchaser shall ensure that it keeps the Goods separate from other goods, and is always able to identify the Goods until those Goods are either paid in full by the Purchaser or sold by the Purchaser in the ordinary course of business. The Purchaser must not sell any Goods other than in the ordinary course of its business unless title in those Goods has passed to the Purchaser.
21. Personal Property Securities Act 1999
- The Purchaser grants the Company a security interest in the Products (and proceeds of the Products) as security for all amounts owing under these Conditions and for the performance by the Purchaser of its obligations under any Agreement.
- Until the Company has received payment for the Goods in full it reserves the following rights:
(a) legal and equitable ownership of the Goods;
(b) the right to enter the Purchaser’s premises and retake possession of the Goods;
(c) the right to keep or resell any Goods repossessed under the Personal Properties Securities Act 1999 (“PPSA”); and
(d) any other rights it may have at law or under the PPSA.
- The Purchaser acknowledges receipt of a copy of these Conditions and waives any right it may have to receive from the Company a copy of any financing statement, verification statement or financing change statement that is registered, issued or received in relation to any Products supplied under these Conditions. The Purchaser shall immediately notify the Company in writing of any change of name of the Purchaser.
- The Purchaser will do all things reasonably requested by the Company for the Company to perfect its security interest in the Products, including if applicable, to register a purchase money security interest on the Personal Property and Securities Register.
- To the extent that part 9 of the PPSA applies to any security interest created under these Conditions, the Purchaser agrees that sections 114(1)(a), 133 and 134 of the PPSA will not apply on the enforcement by the Company of its rights in respect of any such security interest. The Purchaser also waives any rights it may have under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA on such enforcement.
- The terms “security interest”, “financing statement”, “verification statement”, “financing change statement” and ”purchase money security interest” have the meanings set out in the PPSA.
- The provisions of this clause 20 will survive termination of these terms and conditions or any other agreement between the Company and the Purchaser for the sale of Goods, for whatever reason.
22. Set Off – The Purchaser may not withhold or set off payment of any amount due to the Company under the contract whether in respect of any claims of the Purchaser in respect of faulty or defective Goods or any other reason.
- Goods which are not defective may not be returned to the Company for credit unless prior agreement has been given by the Company and then will only be accepted under the following conditions:
i. the Buyer must raise a credit for a reason other than Goods lost in transit within 7 days of receiving Goods and for Goods lost in transit within 7 days from receipt of invoice;
ii. the Company will issue a Goods Return Authority (“GRA”) number within 5 working days after receiving a claim in writing as an acknowledgement of receipt of the request. The issue of a GRA number is only an acknowledgement that a claim has been raised by the Buyer and does not constitute acceptance of the Buyer’s claim;
iii. each GRA number relates to only one claim and the Buyer must follow this process and obtain a separate GRA number for each claim made;
iv. the Buyer must return the Goods to the Company for inspection by the Company and consideration whether to accept the credit claim on the following basis:
a. the Goods must be delivered to the Company free into store;
b. the Goods must be in their original packaging, unsoiled and undamaged and in saleable condition; and
c. the Buyer must provide with the Goods, the GRA number, the original invoice number with purchase order and date of purchase and an explanation for the return;
v. The Company will accept or reject the claim;
a. within 30 days from the date a GRA number is issued if no Goods are to be returned; or
b. within 30 days from the date Goods are returned;
vi. A credit note will be issued within 14 days of acceptance of a credit claim; and
vii. where a claim is rejected, the Goods will be returned to the Buyer at the cost of the Buyer.
a. Without limiting the Company’s discretion under clause (a), the following Goods will not be accepted for credit:
i. (i) obsolete and/or non-resalable stock;
ii. non-standard product which is made to order;
iii. goods not returned to the Company within 30 days after the date a GRA number is issued; and
iv. goods the subject of claims made outside the time periods specified in clause (a) and (i).
c. Where “ranged stock” has not moved for 6 months the Company will exchange with goods of equal value. Freight cost incurred will be the responsibility of the Buyer and any custom built items are non returnable.
d. The Company agrees that any Goods purchased for specific supplier led ranging or promotional activities is purchased on a sale or return basis unless otherwise agreed at time of purchase and will also be subject to clause (a) and (e).
e. Sale of return “ranged stock” may only be returned if accompanied by a replacement order to the same value.
f. If Goods purchased from the Company and stocked by the Buyer no longer meet the appropriate AS/NZ standard/s and are unsaleable then those Goods may be returned to the Company for credit and will not be subject to a restocking fee or any additional charges including freight.
g. The Company will normally not charge a restocking fee, but reserves the right to do so if further costs are incurred such as freight and packaging.
h. The Company may require the Buyer to provide signed documentation as proof of return of Goods.
23. Governing Law – These Conditions shall be governed by the laws of New Zealand. The Company and the Purchaser agree that any legal proceedings with respect to a dispute over the contract of purchase between the Company and Purchaser shall be determined within the Courts of New Zealand.
24. Severability – If any provision of this Conditions should be held to be invalid in any way or unenforceable it shall be severed and the remaining provisions shall not in any way be affected or impaired and this Conditions shall be construed so as to most nearly effect to the intent of the Company and the Purchaser.
25. Notices – Any notice, consent or other communication hereunder may be by email or facsimile but must be addressed to the Commercial Manager. The Notice will be deemed to have been received on the next business day after transmission.
26. Privacy Act
The Purchaser and the Guarantor agree that the Company may give to, and seek from, any credit providers named in the Account Application Form and any credit providers that may be named in a credit report issued by a credit report agency, information about the Purchaser’s and the Guarantor’s credit arrangement.
- The Purchaser and the Guarantor understand that this information can include details about the Purchaser’s or Guarantor’s credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive from each other under the Privacy Act 1993.
- The Purchaser and the Guarantor understand that the information may be used for the following purposes;
(a) to assess an application by the Purchaser for credit;
(b) to notify other credit providers of a default by the Purchaser;
(c) to exchange information with other credit providers as to the status of the Purchaser’s credit account with the Company when the Purchaser is in default with credit providers; and
(d) to assess the Purchaser’s and the Guarantor’s credit worthingness.
- The Company may give personal or commercial information about the Purchaser to a credit reporting agency for the following purposes;
(a) To obtain a credit report about the Purchaser; and/or
(b) Allow the credit reporting agency to create or maintain a credit information file containing information the purchaser.
If as a result of:
(a) Any legislation becoming applicable to the subject matter of this agreement; or
(b) Any changes in legislation or its interpretation by a court of competent jurisdiction or by any authority charged with its administration, the Company becomes liable to pay any tax, duty, excise or levy in respect of the amounts received from the Purchaser, then the Purchaser must pay the Company these additional amounts on demand.
28. Trust – If the Purchaser is a trustee of a trust, the Purchaser warrants that it places an order and accepts these Conditions both its capacity as trustee and in its personal capacity and that it has the power to do so on behalf of the trust and it will not retire as trustee, or appoint a new or additional trustee, without advising the Company in writing (in which case the Company may require new Guarantors to sign the guarantee to the Account Credit Application Form).