PURPOSE AND APPLICATION
1.) The purpose of these Conditions is to record the terms and conditions under which the Supplier will supply the Equipment and/or supply Services to the Client, and these Conditions shall apply to all supplies made by the Supplier to the Client from time to time, to the exclusion of all and any other terms put by or on behalf of the Client as part of an order.
DEFINITIONS AND INTERPRETATION
2.) In these Conditions:
"Client" means any person or entity who purchases Equipment from or is supplied Services by the Supplier and where applicable includes the employees, contractors, agents and subcontractors engaged by the Client to purchase Equipment or Services from the Supplier.
“Conditions” means these terms and conditions of trade.
"Equipment" means the all hardware, software and accessories supplied by the Supplier to the Client.
"Invoices" means all invoices prepared by or on behalf of the Supplier which are issued to the Client from time to time.
"PPSA" means the Personal Property Securities Act 1999.
"Sales" means all current and future sales of Equipment from the Supplier to the Client.
"Services" means the financial, management, ICT and accounting services provided by the Supplier
"Supplier" means Brunton (NZ) Limited or any related, owned, part owned or designated entity or any other party subcontracted by Brunton (NZ) Limited.
3.) In these Conditions:
Clause headings are for reference only and do not affect interpretation;
A reference to the Supplier includes its successors or permitted assigns;
If the Client comprises more than one person, each person's liability will be joint and several; and
References to the singular shall include the plural and vice versa.
CHARGES FOR EQUIPMENT AND SERVICES
4.) Prices for Services and Equipment are according to the Supplier’s price list(s) and are in New Zealand dollars. The Supplier shall be entitled to periodically review and increase its prices.
5.) These Conditions shall apply to any estimate/quotation provided by the Supplier or to any order placed by the Client.
6.) Unless agreed in writing to the contrary, any pricing of Equipment or Services shall be deemed to be an estimate only and based on information supplied by the Client. The Client shall be responsible for the accuracy of any information upon which the estimate/quotation is based. Any changes to specifications or requirements will be invoiced on the actual price. In all other cases the Client shall be deemed to have submitted an order for Equipment or Services according to the Supplier’s price lists and otherwise on these Conditions.
7.) An estimate/quotation is valid for 30 days from the date of issue and may be withdrawn at any time by the Supplier until accepted in writing by the Client.
8.) The prices are exclusive of GST unless otherwise stated. The Client agrees to pay the Supplier any GST and any other taxes, duties or other levies applicable in respect of the Equipment or other Services provided by the Supplier. All GST shall be payable on the due dates for payments relating to any Equipment or Services as set out in the invoice(s).
9.) The Client is responsible for payment of all costs relating to freight of the Equipment unless otherwise agreed with the Supplier beforehand in writing.
10.) If an order for Equipment or Services is cancelled a 25% cancellation fee will apply unless otherwise provided in these Conditions.
DELIVERY OF EQUIPMENT
11.) Delivery times are approximate and the Client is not entitled to cancel the Equipment order unless the delivery is more than two weeks late.
12.) Unless written notice to the contrary is received by the Supplier within three days of delivery:
a.) The Equipment delivered will be deemed to be in good condition; and
b.) The quantities of Equipment delivered detailed by the Supplier in the relevant delivery advice or Invoice shall be deemed to be correct.
TITLE AND RISK
13.) Title to all Equipment remains with the Supplier until paid in full and the Client may not resell or otherwise dispose of the Equipment until it is paid in full.
14.) Notwithstanding the preceding clause, risk of any loss or damage to all Equipment due to any cause whatsoever shall be borne by the Client from the time the Equipment is delivered to the Client. The Client is responsible for ensuring they have adequate insurance to cover the full replacement cost of all of the Supplier’s Equipment until is it paid for in full.
PAYMENT TERMS AND CREDIT ARRANGEMENTS
15.) The Client will pay without deduction all amounts relating to the Equipment and Services as detailed on the Supplier’s invoices, on or before the 20th of the month following the invoice date.
16.) The Client agrees that if the Supplier holds an open cheque or a credit card voucher as security for payment in respect of any Equipment, immediately on invoicing the Client the Supplier may complete and bank the cheque or credit card voucher.
17.) The Supplier may decline or revoke any credit application at any time and for any reason, and may require any further security it deems necessary prior to the granting or reinstatement of any credit account, including where applicable the provision of supporting guarantees.
18.) The Client will treat as confidential and will not use or disclose to any other person any information relating to the Equipment or Services provided by the Supplier to the Client without obtaining the prior written consent of the Supplier and this obligation shall survive any termination of the obligations contained in these Conditions.
19.) The Client shall be responsible for:
Determining that the Equipment is suitable for its requirements.
Ensuring that the Equipment is used in a proper manner and only for the purposes for which it was designed.
20.) The Client shall not make any alterations to the Equipment or affix the Equipment to the Client’s property.
21.) At all times upon the request of the Supplier the Client shall advise the Supplier of the whereabouts of the Equipment and allow the Supplier access to inspect the Equipment.
22.) The client acknowledges that:
a.) The Supplier does not warrant or represent the suitability of any Equipment or Service for the Client’s use;
b.) The Client shall be responsible for ensuring that any legislation, instructions, applicable standards, guidelines and code of practice(s), applications and installation methods are followed and/or warnings observed;
c.) If any recommendation or advice has been given by Supplier, the Supplier will not be responsible for the actual implementation of the recommendation or the advice or actions or performance of the Client.
23.) For the purposes of securing the performance by the Client of its obligations under these Conditions, the Client agrees that if any payment is in arrears for seven days or more or the Client is in breach of any other provision of these Conditions, then without prejudice to any other rights or remedies available to the Supplier, the Supplier may recover the Equipment or any equivalent or identical equipment owned by the Client, without giving the Client notice in writing and without prejudice to any monies which may become due to the Supplier. If no equivalent or identical equipment can be located by the Supplier, the Supplier may seize material, equipment or plant owned by the Client to equal value. The Client will assist the Supplier to return the Equipment immediately to the Supplier.
24.) Notwithstanding any other term, and without prejudice to any other remedies available to the Supplier, the Supplier may terminate its agreement with the Client at any time without notice being given in the event of:
A breach of any of these Conditions; or
Committal of any act of bankruptcy; or
Allowing any execution or distress to be levied upon the Equipment; or
The Client being a company, if an application is made or resolution is passed to liquidate; or a receiver or statutory manager of its assets is appointed; or an assignment or compromise is made for the benefit of its creditors; or the cessation of business trading.
Upon termination of its agreement with the Client the Supplier shall be entitled to take possession of the Equipment. For this purpose the Client irrevocably appoints the Supplier its agent and authorises the Supplier to enter on any land or premises owned by or under the control of the Customer upon which the Equipment is then situated. The Client agrees to indemnify the Supplier in respect of any claims, damages or expenses arising out of any action taken in respect of the repossession of the Equipment.
25.) In the event of any non-payment or other breach of these conditions, the Supplier may at its discretion charge the Client interest on the unpaid overdue balance from the day after the payment due date until the date payment is received (including that day) at the rate of 4% per annum above the current commercial overdraft rate charged by the Supplier’s bankers, compounding monthly on the unpaid balance owing on the first day of each month until payment in full is received by the Supplier. Interest will not be payable on amounts in dispute, provided the dispute is resolved in favour of the Client. The Client will also pay all costs of recovery or costs incurred by the Supplier in enforcement or attempted enforcement of these Conditions including the Supplier’s legal costs on a solicitor/client basis and in the event of legal action will pay continuing interest at that rate after the date of judgment order or award until full payment has been received by the Supplier. .
26.) The Client grants a security interest (as defined in the PPSA) in favour of the Supplier in the Equipment including all present and after acquired Equipment (as defined in the PPSA) and its proceeds and the Client acknowledges that the granting of the security interest gives rise to remedies of repossession of the goods in accordance with the PPSA or otherwise where the Supplier seeks to enforce the security interest.
PERSONAL PROPERTY SECURITIES ACT
27.) The Client will, at the Supplier’s request, promptly execute any documents, provide all necessary information and do anything else required by the Supplier to ensure that the security interest is perfected in accordance with the PPSA with such priority as the Supplier requires including executing any variations to these Conditions.
28.) The Client waives its rights under the PPSA to receive a copy of any verification statement otherwise required by the PPSA. If applicable, so far as permitted by section 107 of the PPSA the Client will have no rights under sections 114(1)(a), 120 and 133 of the PPSA, including the right to receive any notices. The Client agrees if applicable that the Supplier may exercise its rights under sections 109 and 120 concurrently, and that repossession and retention of goods under sections 120 – 123 will immediately extinguish any rights and/or interests the Client may have in the goods and that the Supplier may allocate any monies it receives to debts, charges and expenses in any priority it determines.
29.) The Client agrees that the Client's account may be debited with the costs of registration of a financing statement and all other costs associated with the perfection and enforcement of the security interest (including full client/solicitor costs).
30.) The Client shall ensure that all third parties who may from time to time be in contact with the Equipment are advised of the Supplier's security interest in the Equipment.
LIMITATION OF THE SUPPLIER'S LIABILITY
31.) The Client shall accept full responsibility for and shall indemnify the Supplier against all claims for injury to persons and/or damage to property caused by, or in connection with or arising out of, the Client’s use of the Equipment and Services however arising including the negligence of third parties and against all costs and charges in connection with such claims whether arising under statute or common law.
32.) The Client shall accept full responsibility for the safekeeping of the Equipment and shall indemnify the Supplier for all loss, theft or damage to the Equipment.
33.) The Supplier will not be liable for failure to deliver the Equipment on a specific date or within a specified time from receipt of the order.
34.) Any designs or specifications which the Supplier provides to the Client in connection with the Equipment do not constitute a warranty or guarantee on the practicability, efficacy or safety of that Equipment.
35.) To the extent permitted by law, the Supplier’s liability whether statutory, in contract or tort or otherwise shall be limited to, at the option of the Supplier, either the replacement of the Equipment or Services, or the value of the Equipment or Services supplied to the Client. The Supplier shall not be liable for any consequential, indirect or special damage or loss of any kind whatsoever.
36.) The supply of Equipment or Services does not confer any right or licence to the Client to use or exploit in any way any intellectual property rights of which the Supplier is the proprietor or is otherwise entitled to directly or indirectly. All intellectual property rights pertaining to or bearing upon the Equipment or Services shall remain the property of the Supplier at all times unless the parties otherwise agree in writing. The Client agrees to indemnify the Supplier against any liability or costs incurred by the Client as a result of a breach of the obligations contained in this clause. This clause survives termination.
37.) No failure or delay by the Supplier to enforce any provision of these Conditions at any time shall be a waiver of the provision. No waiver shall be effective unless it is in writing. No waiver of any breach of these Conditions shall be deemed to be a waiver of any other or any subsequent breach.
38.) The Client must not assign or transfer all or any part of its rights or obligations under these Conditions without the prior written consent of the Supplier. The Supplier may assign any rights or obligations without the Client’s prior approval. The Supplier may also subcontract any of its obligations.
39.) Any clause of these Conditions which is or becomes unenforceable, illegal or invalid for any reason shall be severed and shall not affect the enforceability, legality, validity or application of any other clause(s) which shall remain in full force and effect.
40.) The Client authorises the Supplier to collect, retain and use personal information about the Client (the “Information”) including the information contained in these Conditions for the following purposes:
a.) Assessing the Client’s credit worthiness and undertaking a credit check;
b.) Administering the financing, whether directly or indirectly, of the Client’s contract(s) and enforcing the Supplier’s rights;
c.) Marketing the Equipment and Services provided by the Supplier.
41.) The Client also authorises the Supplier to provide the information:
a.) To any person for the purposes set out above;
b.) To credit agencies for the purposes of maintaining effective credit records.
42.) The Client acknowledges:
a.) That the information shall be deemed to be held by the Supplier at the Supplier’s address, notwithstanding that it may be provided to other persons for the purposes described above;
b.) That where information can be readily retrieved the Client shall have access to it, the right to request correction and the right to be notified of action taken in response to any such request, subject to the payment of a reasonable charge;
c.) That the authorisations set out above are irrevocable;
d.) That for purposes of the preceding clauses the term the “Supplier” means Brunton (NZ) Limited and includes any financier or discounter of the Supplier’s contract(s) or any related company of the Supplier.
43.) Where the Client acquires any Equipment or Services for the purposes of a business, or holds itself out as acquiring it for the purposes of a business, the Client agrees that the Consumer Guarantees Act 1993 shall not apply.
44.) These Conditions, together with the payment, Equipment and Services details contained in any Invoice(s) constitute the entire agreement between the parties relating to the Equipment.
45.) No variation to these Conditions shall be valid or binding unless recorded in writing and signed by both parties.
46.) The Supplier reserves the right to supply to any person or entity, and any agreement with the Client shall not be construed as a licence, authority or contract exclusive to the Client.
47.) The Supplier shall not be liable for failure or delay to perform any term of a contract to which these Conditions apply, occasioned directly or by any act of God, labour dispute, difficulty in procuring materials, accidents, legislative restrictions or other causes whatsoever (whether similar or not to the forgoing) beyond the Supplier’s reasonable control.
GUARANTEEIf the client is entering into these terms of trade in the name of a company, then in consideration of the Supplier entering into these terms of trade at the request of the director(s) of the company (“the Guarantor”) the Guarantor personally guarantees the due and punctual payment of all monies and performance and observance by the customer of all terms, conditions and obligations contained in these terms of trade. Where there is more than one director of the company, then all directors will be jointly and severally responsible for performance of this guarantee.