TERMS AND CONDITIONS
Burkert New Zealand Limited
(a) The Company accepts orders from customers (“the Customer”). Each order is expressly agreed by the Customer to incorporate these terms and conditions which (together with the Company’s acceptance) constitute the entire agreement between the Company and the Customer (except to the extent that such terms and conditions are varied or modified in writing and signed by both parties). It is expressly agreed that there are no other understandings, representations or warranties of any kind (express or implied) forming part of the agreement for the Customer’s order, in particular;
(1) Any condition which purports to be contained in the Customer’s order and which is inconsistent with, quantifies or is contrary to these terms and 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 otherwise agreed in writing;
(2) Any variation, waiver 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 of the order;
(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 at the time of the original order, or the rate applicable at the time of revision, at the absolute discretion of the Company.
(b) Placement by the Customer of any order with the Company constitutes an acknowledgement by the Customer that the agreement between the Customer and the Company in relation to that order shall be governed by these terms and conditions.
(c) If any or some of these terms and conditions are held to be invalid, Illegal, unenforceable or void for any reason or reasons, all of the remaining terms and conditions (or part thereof) shall remain in full force and effect.
(d) The Customer agrees that in the event of default in settlement of any account due, the Customer shall pay, upon demand, all reasonable costs, charges, collection costs and legal expenses (including solicitor/ client costs) any 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 and conditions without 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) All prices are exclusive of Goods and Services Tax. The customer shall pay GST on all goods and services the subject of any order.
(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 prices do 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 payable without deduction or set off and, unless otherwise stated in writing by the Company on acceptance of 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 or ready for dispatch and each month’s invoices will be treated as a separate account and be payable accordingly.
(f) Without prejudice to its rights to take all and any steps to pursuer 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. 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 any arrears as well as payment in advance for any undelivered goods before proceeding with manufacture or making any further delivery of goods under any order accepted by the Company;
(3) Rescind the order or any other order between the Company and the Customer and the Customer shall not be entitled to demand or enforce delivery of any goods or any instalment of goods under any such order;
(4) Notwithstanding the above, the right to restrict or withhold the acceptance of any order or supply 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 accepts an order which provides for delivery by instalments, the Company shall invoice and be entitled to payment for each separate instalment delivered (as if it were a separate order) but failure to deliver any instalment shall not entitle the customer to cancel the order as to any remaining instalments.
(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 within 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 the earlier of;
(1) Collection of the goods by the customer or his agent;
(2) Dispatch of the goods by the Company for delivery to the Customer; or
(3) 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 and in accordance with the following;
(1) Prior to acknowledging delivery and receipt from the carrier, the Customer must ensure that the complete consignment as per the carrier’s note has been received and is in an acceptable condition;
(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 condition.
(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 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, the Company’s liability shall be limited to refunding or crediting the Customer with the purchase price, and in the case of damage in transit, at the option of the Company, its liability will be limited 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 in that regard the following shall apply:
(1) Risk shall pass back to the Company only if the Company takes possession of the goods by removing the goods: and
(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 agrees to be liable for and may be charged for the cost of the particular packing cases. In that event the Company will invoice the Customer for the cost and the Customer agrees to pay such invoice within 21 days of receipt.
6. RETURN OF GOODS FOR CREDIT
(a) The Company is under no obligation to accept return of goods supplied to a Customer. Such goods can only be returned with the express approval of the Company. In particular:
(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 as a condition of accepting return. Such fees may be up to 15% and levied at the Company’s absolute discretion. In the event that a fee is levied, the Company will invoice the Customer and the Customer is required to pay the fee within 21 days of receipt of invoice.
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 1996.
(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 supplied by the Company to the Customer, or any event occurs which would entitle a security holder of the Customer to appoint a receiver, 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 or such application is filed or a receiver is appointed, or a resolution for voluntary winding-up is passed or any approaches made by the Customer to creditors to extend time for or otherwise compromise payment of the Customer’s creditors. Such events and the filling of legal proceedings in connection with any such event are subsequently referred to as “the said events”.
(b) Until full payment for any order is made, the Customer agrees to:
(1) Enable the goods relating to that order to be readily identifiable as the property of the Company; and
(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 incidental to 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 and to 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 construction occurring:
(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 1996 which accountant shall be appointed, if the parties cannot 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 and conditions.
(g) The Company shall be entitled forthwith to cancel the Customer’s rights under these terms and conditions 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 terms and conditions or any particular term agreed on a specific order, 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 the Company may have whether pursuant to these terms and conditions or any term of a specific order, 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 apply such proceeds, firstly in payment of all outstanding monies owed by the Customer to the Company, secondly to cover any diminution in value of the goods, thirdly in payment of a restocking fee of 10% of the total value of the goods (any of which may be levied by the Company in its total discretion), and thereafter the Company shall have no further claim on the Customer and shall refund to the Customer the balance. Such refund will satisfy fully all and any claims the Customer may have against 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.
(b) In the case of goods not of the Company’s own manufacture the Customer is entitled only to such benefits as the Company may receive under any guarantee or warranty 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.
(d) This warranty does not cover damage from misuse, accident, neglect, incorrect 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 the Contracts and Commercial Law Act.
(f) The Company’s liability under any order and the warranty in this clause are confined to the Customer named in the order, it being agreed that the Company has no liability to any purchaser of the goods from the Customer and 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
These terms and conditions and all contracts arising from orders shall be governed by New Zealand Law and the New Zealand courts shall have exclusive jurisdiction in connection herewith.