1. The following terms shall be incorporated into every contract between Brien Electrical Ltd (“BEL”) and the customer for the supply by BEL of goods or services unless specifically excluded in writing and annexed hereto. No variation of these terms will be binding upon BEL unless made in writing. In the event of inconsistency between these terms or any quotation or other agreement entered between BEL and the customer, then these terms shall take precedence at all times.
2.1. BEL shall mean Brien Electrical Limited or any agents, divisions, subsidiaries, or employees thereof.
2.2. “Customer” shall mean the customer, any person acting on behalf of and with the authority of the customer, or any person purchasing goods and/or services from BEL.
2.3. “Goods” shall mean all goods, chattels or services, provided by BEL to the customer, and shall include without limitation the supply installation and maintenance of electrical equipment, fixtures and fittings, all charges for labour and work, hire charges, insurance charges, or any fee charged or associated with the supply of goods by BEL to the customer.
3. Collection and Use of Information
3.1. The customer authorises BEL to collect, retain and use any information about the customer, or for assessing the customer’s credit worthiness, enforcing any rights under this contract, or marketing any goods and services provided by BEL to any other party.
3.2. The customer authorises BEL to disclose any information obtained to any person for the purposes set out in clause 3.1.
3.3. Where the customer is a natural person the authorities under clauses 3.1 and 3.2 are authorities or consents for the purposes of the Privacy Act 1993.
3.4. Where the customer is a company and a director has signed on behalf of the company, that director hereby authorizes BEL for the purposes of the Privacy Act 1993, to undertake credit checks of the director for the purposes of assessing the customer’s creditworthiness or enforced any rights under this contract.
4.1. Payment is to be made in full (without set off or deduction) 7 days from the date of invoice.
4.2. Receipt of any cheque or other bill of exchange shall not comprise payment until it is honoured or cleared.
4.3. If the customer fails to make payment by the due date, it shall be liable to pay to BEL by way of liquidated damages, interest at a rate of 2.5% per month calculated on a daily basis.
4.4 If payment is made by credit card 2.5% surcharge applies.
4.5. BEL may issue interim invoices for any amounts it considers reasonable to reflect work and materials supplied before the work is complete. This may include a requirement to pay a deposit, a payment on partial completion and a final payment on completion.
4.6. The invoice issued is a payment claim under the Construction Contracts Act 2002.
4.7. If at any time BEL agrees that any outstanding account may be paid off over time, it is strictly on the basis that should any payment be missed, then the full balance owing as at the date that payment is missed becomes due and owing immediately and BEL may pursue the customer for the full outstanding amount notwithstanding the agreement for time payment.
5.1. If the customer fails to pay any amount owing on the due date, or commits any other default under this contract and any such default shall continue for seven days:
5.1.1. All amounts payable by the customer shall upon such default become due and payable and BEL may enforce payment of the balance owing and interest shall be payable thereon as set out in clause 4.3 notwithstanding that delivery and/or installation of any parts or materials has not been affected and that but for this clause payment would not then be due.
5.1.2. All amounts payable by the customer shall upon such default become due and payable and BEL may enforce payment of the balance owing and interest shall be payable thereon as set out in clause 4c notwithstanding that delivery and/or installation of any parts or materials has not been affected and that but for this clause payment would not then be due.
5.1.3. BEL may by written notice to the customer, cancel this contract and any rights exercised by BEL pursuant to this clause shall not terminate the customer’s liabilities under the contract, or to pay damages for any breach of it.
5.1.4. The customer shall pay BEL’s full legal costs on a solicitor/client basis for legal services relating to recovery of any outstanding amount owed by the customer.
6.1. Where a quotation is given by BEL for goods and services:
6.1.1. The quotation shall be valid for thirty (30) days from the date of issue.
6.1.2. The quotation shall be exclusive of Goods and Services Tax unless specifically stated to the contrary.
6.1.3. BEL reserves the right to alter the quotation where the quotation has been submitted based on plans or has been based upon work in an area of a building that cannot be viewed until the work is undertaken, or circumstances beyond the control of BEL dictate the quotation may be reviewed and altered at BEL’s discretion. Notwithstanding that any quotation has stated that it is a quotation in the circumstances set out in this clause 6.1.3, it shall be read as an estimate only.
6.2. Where goods are required in addition to the quotation, or the customer requests a variation, the customer agrees to pay for the additional cost of such goods.
7. Return of Goods
7.1. The customer may not return or refuse delivery of any goods purchased from BEL unless agreed to in writing by BEL.
8.1. Title in the goods passes to the customer when the customer has made payment in full without deduction for all goods supplied by BEL.
8.2. Where the customer has not paid for any goods in its possession property of such goods shall remain with BEL and:
8.2.1. The goods shall be held by the customer as bailee, and
8.2.2. If the goods are attached, fixed or incorporated into any property of the customer by way of any manufacturing or assembly process by the customer or any third party, title of the goods shall remain with BEL until the customer has made payment for all goods, and where those goods are mixed with other property so as to be part of or a constituent of any new goods, title to these goods shall deemed to be assigned to BEL as security for the full satisfaction by the customer of the full amount owing between BEL and the customer.
8.3. The customer gives irrevocable authority to BEL to enter any premises occupied by the customer, at any reasonable time, to remove any goods not paid for in full by the customer. BEL shall not be liable for costs, damages for expenses or any other losses incurred by the customer or any third party as a result of this action, nor liable in contract or in tort or otherwise in any way whatsoever.
8.4. BEL assures all goods are of merchantable quality and free from defect. No goods shall be returned to BEL without prior written authorization. If goods are found to be defective BEL at its option may replace or repair and return free from defect
8.5. Under no circumstances may goods be returned other than as defective and authority for return will not be given for the following – shop soiled, where the goods have been used where the client has damaged them
9. Limitation of Liability
9.1. BEL’s liability under this clause or any contract collateral hereto is limited to replacing (or at the election of BEL repairing) any defective goods to the entire exclusion of any other remedy which, but for this clause, the customer might have and BEL shall be under no liability for any damage, injury direct or consequential or other loss, or loss of profits of costs, charges and expenses on the part of the customer, or any other person other than to repair or replace as mentioned above. BEL shall not be liable to the customer if for any reason beyond BEL’s control is not able to deliver or supply any of the goods.
10.1. The customer acknowledges that it grants a security interest (as defined in the Personal Property Securities Act 1999 (“PPSA”)) in all present and after acquired property as security for its obligations to BEL. The customer must do all things including executing all documents that BEL requires to provide BEL with a first ranking security interest in the goods.
10.2. The customer waives the right to receive a copy of the verification stated under the PPSA and agrees it will have none of the rights under ss114(1)(a),
10.3. 116, 117(1)(c), 119, 120(2), 121, 125, 129, 131, 132, 133 and 134 of the PPSA. Where BEL has rights in addition to those in Parts 9 of the PPSA,
10.4. the buyer agrees that those rights shall continue to apply and in particular will not be limited by s109 of the PPSA.
10.5. The customer agrees to indemnify BEL for any costs BEL incurs in registering, maintaining and for enforcing the security interest created by these terms including actual legal costs on a solicitor/client basis.
10.6. The customer must immediately notify BEL if it changes its name, registered office or place of business.
11. Consumer Guarantees Act
11.1. The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the customer acquires goods or services from BEL for the purposes of a business in terms of section 2 and 43 of that Act.
12. General Lien
12.1. The customer agrees that BEL may exercise a general lien against any goods or any property belonging to the customer that is in the possession of BEL for any sums outstanding under the contract and any other contract to which the customer and BEL are parties.
12.2. If the lien is not satisfied within 7 days of the due date BEL may having given notice of the lien at its option either:
12.2.1. Remove such goods or property and store them in such a place and in such as manner as BEL shall think fit and proper and at the risk and expense of the customer. Or:
12.2.2. Sell such goods or property or part thereof upon such terms as it shall think fit and apply the proceeds in or towards discharge of the lien and costs of sale without being liable to any person for damage caused.
13.1. No representation, condition, warranty or premise expressed or implied by law or otherwise applies to a quote except where goods are supplied pursuant to the Consumer Guarantees Act 1993 or except where expressly provided to the customer at the time of sale HOWEVER no warranty will exceed that given by the manufacturer.
13.2. Notwithstanding the above BEL will pass on to the customer any third party warranties such as those of the manufacturer at the time of purchasing the goods and warrant that all installations are done in a good and proper workmanlike manner for a period equivalent to the warranty the manufacturer has provided for the goods.
13.3. No warranty shall be enforceable by the customer whilst money is owing to BEL.
14.1. BEL shall, without any liability and without any prejudice to any other right it has in law or equity have the right by notice to suspend or cancel in whole or in part any contract for supply of goods to the customer if the customer fails to pay any money owing after the due date or commits an act of bankruptcy as defined in section 19 of the Insolvency Act 1967.
14.2. Any cancellation or suspension under clause 14.1 of the agreement shall not affect BEL’s claim for money due at the time of cancellation or suspension or for any damages for any breach of any terms of this contract of the customer’s obligations to BEL under this contract
15.1. For better securing the obligations of the customer to BEL, the customer agrees that it will upon demand execute in favour of BEL a good and registerable mortgage over any property held now by the customer either alone or jointly with any one or acquired by the customer at any time hereafter. If the customer defaults in payment of any amount owed to BEL, the customer specifically authorizes BEL to lodge a caveat against any such property to further secure this agreement to mortgage and the customer appoints BEL to be the customer’s attorney for the purposes of signing a caveat, and or mortgage charge on the property to protect BEL interests.
16.1. The customer shall not assign all or any of its rights or obligations under this contract without the written consent of BEL
16.2. BEL shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control
16.3. Failure by BEL to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of the rights or obligations BEL has under this contract.
16.4. The law of New Zealand shall apply to this contract except to the extent expressly negatived or varied by the contract
16.5. Where the terms of this contract are at variance with the order or instruction from the customer this contract shall prevail.
16.6. If any provision of this contract shall be invalid void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired