TERMS AND CONDITIONS
Burkert Contromatic NZ Ltd
(a) The company accepts the customer's order on these conditions which conditions (together with the Company's
acceptance ) constitutes the entire agreement between the company and the Customer (except to the extent that
such terms and conditions are modified in writing and signed by both parties) and it is expressly agreed that there are
no other understandings representations or warranties of any kind(express or implied) forming part of this contract in
(1) Any condition contained in the customer's order which is inconsistent with, quantities or is contrary to these
conditions shall be of no effect unless that condition is accepted in writing by the company. Any such
acceptance by the Company will apply only to the particular order concerned except as specified in written
(2) Any variation, waver or cancellation of the customer's order shall be of no effect unless accepted in writing by
the Company. Where the company accepts cancellation the Company may levy a handling charge of up to 10
% of the price.
(3) Where the customer and the Company agree to a variation in the quantity of the goods the goods shall be
priced either at the rate applicable to the original quantity or the revised quantity at the absolute discretion of
(b) Placement by the customer of any order with the Company by the customer constitutes an acknowledgement by the
customer that the contract between the customer and the Company shall be governed by these terms of trade.
(c) If any terms or conditions or part thereof contained in these terms of trade are held to be in valid, Illegal, unenforceable
or void for any reason or reasons, all of the remaining terms and conditions (or part thereof) shall remain in full force
(d) The customer agrees that in the event of default settlement of any account due, the customer shall pay upon demand
all responsible costs charges and legal expenses (including costs between solicitor and own client)including any
collection costs incurred by the Company in recovering the outstanding account from the customer.
(e) The customer may not assign all or any of the rights or obligations of the customer under these terms of trade with out
the prior written consent of the Company.
2 PRICE AND TERMS OF PAYMENT
(a) The Company's prices are subject to alteration without notice and the price payable by the customer for the goods
ordered shall be the price ruling at the date the goods are despatched for delivery to the customer. The onus is on
the customer to confirm prices prior to delivery.
(b) The Company's prices referred to in this contract and in any quotation which may have formed the basis of this
contract are exclusive of Goods and Services Tax. The customer shall pay goods and Services Tax on the goods
and services the subject of this contract and the amount of each payment payable under this contract shall be
(c)The company's prices are exclusive of installation or commissioning of any equipment , other taxes, duties and other
imports which if chargeable are payable by the customer whether they are imposed or brought into force before or
after acceptance of the customer's order. The Company's price does not include additional charges for Export
packing which is payable by the customer.
(d) If the goods are exported, the price and other moneys due by the customer shall be paid in New Zealand currency.
(e) All prices are strictly nett and unless otherwise stated in writing by the Company on acknowledging the order are due
for payment on the last working day of the month following the month in which the goods (or any instalment of the
goods) are delivered. If despatch is delayed due to the customer's inability to take delivery, payment must be made
by the eighth week from the date the customer is notified that the goods are ready for despatch. Deliveries by
consignment or instalment will be invoiced as despatched and each month's invoices will be treated as a separate
account and be payable accordingly.
(f) Without prejudice to its rights to sue for payment or exercise any other remedy where any payment is not made on
the due date the Company may:
(1) Charge the customer interest on the amount outstanding at the rate of five percent (5%) above the current base
lending rate for the time being of the Company's bankers, from the due date of payment until payment is received
by the Company, but the charging of interest does not extend the time for payment nor imply any forbearance to
sue or otherwise recover overdue moneys.
(2) Demand payment of the arrears as well as payment in advance for any undelivered goods before proceeding with
manufacture or making any further delivery of goods under this or any other contract between the Company and the
(3) Rescind this contract or any other contract between the Company and the customer and the customer shall not be
entitled to demand or enforce delivery of any goods or any installment of goods under this or any other contract.
(4) Notwithstanding the above, the right to restrict or withhold the sale of further goods on credit is reserved where the
Company has reason to doubt the customer's ability to pay for such purchases.
(a) The Company may withhold delivery in terms of clause 2 above.
(b) If the customer fails or refuses or indicates to the Company that the customer will fail or refuse to take or accept
delivery, then the goods shall be deemed to have been delivered when the Company was willing to deliver them.
(c) The Company reserves the right to despatch the customer's order in one delivery or by instalments. Where the
Company acknowledges an order which provides for delivery by instalments the Company shall be entitled to payment
for each instalment delivered (as if it were a separate contract) but failure to deliver any instalment shall not entitle the
customer to repudiate the contract as to any remaining installments.
(d) Any indication of delivery times by the Company are made in good faith but are estimates and not commitments. The
Company shall not be bound by such estimates.
(e) Where the customer requests a particular method of delivery and the Company agrees in writing then the customer
shall cover the cost of delivery by that method from the point of despatch of the goods by the Company. Otherwise
the Company will select the method of delivery.
The Company's liability for shortages in the quantity of the goods supplied is limited to making up the shortages. No
claim for shortages in quantity will be allowed unless the customer gives written notification of the shortage in writing
with 7 days of delivery and provides a reasonable opportunity to take all necessary steps to investigate the claim.
5. RISK AND LOSS IN TRANSIT
(a) Risk (including, without limitation, Insurance responsibility) of any loss, damage or deterioration of or to the goods
shall pass to the customer on collection of the goods by the customer or his agent or the passing of the goods to a
carrier (including, without limitation, the Company's own delivery vehicles) for delivery.
(b) Goods leaving the Company's premises are deemed to be adequately packed. Claims made for damage or loss in
transit must be made against the carrier in the prescribed manner.
(1) Prior to acknowledging delivery to the carrier the customer must ensure that the complete consignment as per the
carrier's note have been received
(2) Should there be a shortage or visible damage to outer packaging the carrier's note must be endorsed accordingly.
(3) Within 7 days of receipt of consignment the customer must ensure that all product received is in good order and
(c) No claims will be considered after 7 days of receipt of goods.
(d) While no liability for goods damaged or lost in transit will be accepted by the Company, details of any claim should be
advised to the Company.
(e) The liability of the Company in respect of goods that are inadequately packed, or where the Company uses its own
delivery vehicles to transport the goods to the customer or where risk has not passed to the customer in terms of
clause 3(b) and 5(a) (and whether such liability in either case is in contract or in part including negligence of the
Company, its employees or agents or otherwise howsoever), shall be limited. In the case of inadequately packed
goods and failure to deliver, to refunding or crediting the customer with the purchase price and in the case of damage
in transit at the option of the Company to providing replacement goods or refunding or crediting the customer with the
purchase price of the damaged goods.
(f) Risk shall pass back to the Company only if the Company exercises its right of repossession pursuant to clause 8(h)
and it that regard the following shall apply:
(1) Risk shall pass back to the Company of if the Company takes possession of the goods by removing the goods:
(2) If any of the goods so repossessed by the Company are goods in respect of which the Company shares title with
any other party, risk shall pass back to the Company only in relation to the Company's share in such goods as
defined in clause 8(e).
(g) All packing cases marked returnable must be returned at the customer's expense to the Company's address in good
condition within one month of the date of delivery otherwise the customer may be charged for the cost of the particular
6. RETURN OF GOODS FOR CREDIT
(a) The Company is under no obligation to accept goods supplied ex stock. Goods supplied ex stock in accordance with
the customer's order can only be returned with the express approval of the Company.
(1) Requests to return goods must be submitted in writing within 10 days from the date of supply.
(2) Where goods are accepted for credit they must be delivered at the customer's expense into the Company's store
from where they were purchased in original condition and packaging.
(3) The original Invoice number must be quoted.
(4) The Company reserves the right to levy a restocking fee against any returns they may agree to accept. Such fees
may be up to 15% and levied at the Company's absolute discretion.
(b) Goods specially imported or brought in or procured on behalf of the customer can not be returned except by prior
written approval from the Company and then only on such terms and conditions as the Company may agree.
In the even that any part of the invoice is disputed the amount not under question shall be paid promptly according to
applicable payment terms. Any claim or dispute arising hereunder shall be subject to arbitration in accordance with
the Arbitration Act (1908) of New Zealand.
(a) Ownership of all goods sold by the Company is retained by the Company until full payment is received for all
amounts owing (including any default interest pursuant to clause (2)
and enforcement and legal costs pursuant to clause (1) in respect of all goods supplied. This provision is designed
to protect the Company in respect of any event where the customer defaults in payment of the goods or any other
goods sold by the Company to the customer, or any event occurs which would entitle a debenture holder of the
customer to appoint a receiver of the customer, or the customer is served with a statutory notice of demand or any
event occurs which would entitle a creditor to petition for winding up or bankruptcy of the customer is filed or a
receiver is appointed, or any of the customer's assists or a resolution for voluntary winding-up is passed by the
customer (except for the purposes of reconstruction) or any approaches made by the customer to creditors to
extend time for or otherwise compromise payment of the customer's debts. Such events and the filling of legal
proceedings in connection with any such event are subsequently referred to as "the said events".
(b) Until such payment is made the customer agrees to:
(1) Enable the goods to be readily identifiable as the property of the Company.
(2) Maintain the goods so supplied in good order and condition and return the goods immediately if called upon to
do so by the Company.
(c) The customer hereby agrees to meet all costs of and any incidentals in the recovery of the said goods as well as any
shortfalls between the amount owing and the value of the goods recovered.
(d) Notwithstanding the retention of ownership the customer may prior to payment in full, as agent for the Company, sell
the goods under a bona fide transaction in the ordinary course of business not intended to deprive the Company of the
benefit of the retention of title. In the event of a sale of the goods or any of them prior to payment in full the customer
shall, as trustee for the Company:
(1) Hold all moneys received by the customer on any such sale of the goods separate from the customer's own money
and in the name of the credit of the Company and the customer will on request from the Company pay such
proceeds to the Company.
(2) Hold all claims against the purchasers of any such goods who have not made payment for the same in trust for the
Company, and the Company may in any of the said events, either in its own name or in the name of the
Customer, make claim to and issue proceedings to recover the sale price of such goods. If called upon to do so
by the Company, the customer shall assign to the Company all rights against the person to whom the
customer has supplied the goods.
(e) In respect of any goods which are mixed with, installed on the customer's premises or used as constituent parts of
any product manufactured or constructed by the customer for on-sale immediately upon such manufacture and
(1) The Company's ownership of the goods shall be transferred to part ownership of the processed goods.
(2) The Company's part ownership shall be an equal share to the proportion that the invoiced value of the
Company's goods used in such processing bears to the total invoice value of all goods employed plus the
customer's reasonable direct costs of processing. If any dispute shall arise as to the amount of the
Company's share, such shall be determined by a Chartered Accountant who shall act a sole arbitrator pursuant to the
provisions of the Arbitration Act (1908)
which accountant shall be appointed, if the parties can not agree, by the President for the time being of the
New Zealand Society of Accountants, or his/her nominee.
(3) The Company's part ownership shall be absolute and not by way of charge.
(f) The customer shall not, so long as the goods remain the property of the Company, charge or purport to charge the
goods in any other way than in accordance with the provisions of these terms of trade.
(g) The Company shall be entitled
forthwith to cancel the customer's rights under the terms of trade by notice to the customer if the customer defaults in
payment on the due date, time for which is strictly of the essence or fails to comply with any of these general
conditions or any terms of any particular contract of sale between the Company and the customer, or if the Company
receives any information which, in the opinion of the Company, indicates uncertainty as to the customer's ability to
meet it's financial commitments. The right of cancellation under this clause 8(g) is in addition to any other right of
cancellation the Company may have whether pursuant to these general conditions or any particular contract of sale, or
any statute or at common law or in equity.
(h) If any one or more of the events specified in clause 8(a) occurs, or upon cancellation pursuant to any other right, the
Company, without prejudice to any other rights or remedies of the Company, shall be entitled:
(1) to recover possession of all goods in respect of which the Company has retained title, including processed goods
from the possession or control of the customer or the customer's purchaser or by impounding the
goods in any premises occupied by or under the control of the customer, the duly appointed liquidator or
receiver of the customer's purchaser.
(2) for the purposes of repossessing or impounding any such goods, to enter any premises occupied by or
under the control of the customer, with the use of reasonable force, if necessary, and in such event the customer
shall indemnify the Company against all claims that may be made upon the Company as a
consequence of the Company's exercising such power of entry.
(3) to employ the services of any person to enter upon and remain upon any premises occupied by or controlled by the
customer to exercise any of the preceding rights.
(4) to give notice to any third party of the Company's rights pursuant to these general conditions and of the exercise
of any of the Company's rights or remedies and the customer shall have no claim against the Company for any
loss, direct or indirect, suffered by the customer as a consequence of such notice being given by the Company.
(i) Upon termination of the customer's rights pursuant to clause 8(g), or pursuant to any other right of the
Company, and without prejudice to any other rights or remedies of the Company, the Company shall be
entitled to sell all goods fully or partly owned by the Company and the following further provisions shall apply:
(1) On the sale by the Company of any unprocessed goods in respect of which full title has been retained by the
Company, the Company shall be entitled to retain the total proceeds of sale and shall have no obligation to
account to the customer for any part of the proceeds of sale, provided that if the total proceeds of sale exceed in
value all sums owed by the customer to the Company pursuant to all contracts between the customer and the
Company then the Company less any diminution in value of the unprocessed goods and a restocking fee of up to
10% of the total value of the goods either of which may be levied by the Company in its total discretion, shall have
no further claim on the customer and shall refund to the customer the difference between the sale price and the
total indebtedness of the customer to the Company.
(2) In the case of processed goods the Company is empowered to sell such goods on behalf of the customer and the
Company for their respective rights and interests and shall account to the customer for the customer's share of the
proceeds, whether or not any moneys may still be due from the customer to the Company.
9. COMPANY'S LIABILITY & MAINTENANCE GUARANTEE
(a) The customer shall ensure that the goods ordered are fit and suitable for the purpose for which they are required and
the Company is under no liability if they are not. The Company does not guarantee the goods against corrosion or
(b) In the case of goods not of the Company's own manufacture the customer is entitled to only such benefits as the
Company may receive under any guarantee given to the Company by the manufacturers in respect thereof. The
Company shall not be liable for consequential or special damages under any circumstances whatsoever.
(c) In lieu of any warranty, condition or liability implied by law the Company's liability in respect of any defect in or failure
of the goods supplied or for any loss, injury or damage attributable thereto, or for the cost of any labour involved
thereby (including the cost of renewal and/or re-assembly of defective parts), is limited to making good the
replacement or repair of defects arising under normal proper use and maintenance arising solely from faulty
design, materials or workmanship within the guarantee period if stated or otherwise within 6 months of the date of
delivery provided always that such defective parts are promptly returned to the Company, unless otherwise arranged.
At the Company's request all defective parts must be promptly returned (without cost to the Company) to the
Company's address. Any repaired or new parts will be delivered free within the usual limits of rail delivery or
F.O.B. At the termination of the appropriate period all liability on the Company's part ceases.
(d) This warranty does not cover damage from misuse, accident, neglect, installation, modification, adjustment or
improper operation or maintenance.
(e) Any advice, recommendation, information, assistance or service ("customer information") provided by the Company in
relation to the good's use or application is given in good faith and is believed to be appropriate and reliable. Any such
customer information provided and any statements or representations made by the Company in relation to any
goods supplied by the Company is provided or are made without liability or responsibility on the part of the Company
and this provision precludes any Court from enquiring or determining the questions referred to in Section 4 of the
Contractual Remedies Act 1979.
(f) The Company's liability under this contract and the warranty in this clause is confined to the customer named in this
contract it being agreed that the Company has no liability to any purchaser of the goods from the customer in that the
customer's rights under this contract are not assignable without the prior written consent of the Company.
10. FORCE MAJEURE
The Company shall not be liable to the customer for any loss or damage directly or indirectly arising out of or in
connection with any delay in delivery of the goods or failure to perform any term of this contract where such delay or
failure is caused directly or indirectly by an act of God, fire, armed conflict, labour dispute, civil commotion, intervention of a Government, inability to obtain labour, materials or manufacturing facilities, accidents, interruption of
or delay in transportation or any other cause beyond the Company's control.
11. DRAWINGS, DATA & DESIGN
Drawings, data and designs issued to the customer remain the property of the Company and may not be copied or
passed onto any third party without the prior written consent of the Company.
12. PROPER LAW
The contract and these conditions of sale shall be governed by New Zealand Law and the New Zealand courts shall
have exclusive jurisdiction in connection herewith.
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