Terms & Conditions

The use of this Website is subject to these Terms and Conditions (inclusive of Our standard Terms and Conditions for the supply of Works and Materials, Privacy Policy, Refund Policy any other documents referred to herein) which constitutes the full agreement between You and Us.

Please read these Terms and Conditions carefully before You use the Website.

By using the Website, You indicate that You have, effective upon the date on which You have used the Website, read, accepted and agreed to be bound by these Terms and Conditions.

If You do not agree with these Terms and Conditions, You should cease using the Website immediately.

1.    Definitions

1.1  "Burkert" means Burkert New Zealand Limited T/A Burkert Fluid Control Systems, its successors, and assigns.

1.2  "Customer" means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting Burkert to provide the Works as specified in any proposal, quotation, order, invoice, or other documentation, and:
          (a)    if there is more than one Customer, is a reference to each Customer jointly and severally; and
          (b)    if the Customer is a partnership, it shall bind each partner jointly and severally; and
          (c)    if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
          (d)    includes the Customer’s executors, administrators, successors and permitted assigns.

1.3  "Contract" means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.

1.4  "Cookies" means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website and can be accessed either by the web server or the client’s computer. If the Customer does not wish to allow Cookies to operate in the background when using Burkert’s website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.

1.5  "Price" means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Works as agreed between Burkert and the Customer in accordance with clause 6 below.

1.6  "Works" means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by Burkert to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).

1.7  "Worksite" means the address nominated by the Customer to which the Materials are to be supplied by Burkert.

2.    Acceptance

2.1  The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of any Works.

2.2  In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.

2.3  Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.

2.4  The Customer acknowledges that the supply of Works on credit shall not take effect until the Customer has completed a credit application with Burkert and it has been approved with a credit limit established for the account.

2.5  In the event that the supply of Works requested exceeds the Customer’s credit limit and/or the account exceeds the payment terms, Burkert reserves the right to refuse delivery.

2.6  Any advice, recommendation, information, assistance, or service provided by Burkert in relation to Materials or Works supplied is given in good faith to the Customer, or the Customer’s agent and is based on Burkert’s own knowledge and experience and shall be accepted without liability on the part of Burkert. Where such advice or recommendations are not acted upon then Burkert shall require the Customer or their agent to authorise commencement of the Works in writing. Burkert shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Works.

2.7  If Burkert has been requested by the Customer to diagnose a fault that requires investigation, disassembly and/or testing, all costs involved will be charged to the Customer irrespective of whether or not the repair goes ahead.

2.8  Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.

3.    Errors and Omissions

3.1  The Customer acknowledges and accepts that Burkert shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
          (a)    resulting from an inadvertent mistake made by Burkert in the formation and/or administration of this Contract; and/or
          (b)    contained in/omitted from any literature (hard copy and/or electronic) supplied by Burkert in respect of the Works.

3.2  In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of Burkert; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.

4.    Change in Control

4.1  The Customer shall give Burkert not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Customer shall be liable for any loss incurred by Burkert as a result of the Customer’s failure to comply with this clause.

5.    On-Line Ordering

5.1    The Customer acknowledges and agrees that:
          (a)    Burkert does not guarantee the website’s performance;
          (b)    display on the website does not guarantee the availability of any particular Materials; therefore, all orders placed through the website shall be subject to confirmation of acceptance by Burkert;
          (c)    on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades;
          (d)    there are inherent hazards in electronic distribution, and as such Burkert cannot warrant against delays or errors in transmitting data between the Customer and Burkert including orders, and you agree that to the maximum extent permitted by law, Burkert will not be liable for any losses which the Customer suffers as a result of online ordering not being available or for delays or errors in transmitting orders;
          (e)    when making a transaction through the website, the Customer’s information will pass through a secure server using SSL (secure sockets layer) encryption technology or any other similar technology as disclosed by Burkert and/or displayed on the website. The encryption process ensures that the Customer’s information cannot be read by or altered by outside influences;
          (f)    if the Customer is not the cardholder for any credit card being used to pay for the Materials, Burkert shall be entitled to reasonably assume that the Customer has received permission from the cardholder for use of the credit card for the transaction.

5.2  Burkert reserves the right to terminate the Customer’s order if it learns that you have provided false or misleading information, interfered with other users or the administration of Burkert’s business, or violated these terms and conditions.

6.    Price and Payment
6.1    At Burkert’s sole discretion, the Price shall be either:
          (a)    as indicated on invoices provided by Burkert to the Customer in respect of Works performed or Materials supplied; or
          (b)    Burkert’s Price at the date of delivery of the Works according to Burkert’s current Price list; or
          (c)    Burkert’s quoted Price (subject to clause 6.2) which shall be binding upon Burkert provided that the Customer shall accept Burkert’s quotation in writing within thirty (30) days.

6.2    Burkert reserves the right to change the Price:
          (a)    if a variation to the Materials which are to be supplied is requested; or
          (b)    if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
          (c)    where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather, limitations to accessing the Worksite, availability of machinery, as a result of delays from third party suppliers, safety considerations, prerequisite work by any third party not being completed, etc.) which are only discovered on commencement of the Works; or
          (d)    in the event of increases to Burkert in the cost of labour or Materials (including, but not limited to, overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges for foreign sourced Materials) which are beyond Burkert’s control.

6.3  Variations will be charged for on the basis of Burkert’s quotation, and will be detailed in writing, and shown as variations on Burkert’s invoice. The Customer shall be required to respond to any variation submitted by Burkert within ten (10) working days. Failure to do so will entitle Burkert to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.

6.4  At Burkert’s sole discretion a non-refundable deposit may be required.

6.5  Time for payment for the Works being of the essence, the Price will be payable by the Customer on the date/s determined by Burkert, which may be:
          (a)    on completion of the Works; or
          (b)    on delivery of the Materials; or
          (c)    by way of progress payments in accordance with Burkert’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the Worksite but not yet installed;
          (d)    for certain approved Customers, due twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
          (e)    the date specified on any invoice or other form as being the date for payment; or
          (f)    failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by Burkert.

6.6  Payment may be made by cash, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Customer and Burkert.

6.7  Burkert may in its discretion allocate any payment received from the Customer towards any invoice that Burkert determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer Burkert may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Burkert, payment will be deemed to be allocated in such manner as preserves the maximum value of Burkert’s Purchase Money Security Interest (as defined in the PPSA) in the Materials.

6.8  The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by Burkert nor to withhold payment of any invoice because part of that invoice is in dispute, unless the request for payment by Burkert is a claim made under the Construction Contracts Act 2002. Nothing in this clause 6.8 prevents the Customer from the ability to dispute any invoice.

6.9  Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to Burkert an amount equal to any GST Burkert must pay for any supply by Burkert under this or any other agreement for the sale of the Materials. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

7.    Provision of the Works

7.1  Subject to clause 7.2 it is Burkert’s responsibility to ensure that the Works start as soon as it is reasonably possible.

7.2    The Works’ commencement date will be put back and the completion date extended by whatever time is reasonable in the event that Burkert claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond Burkert’s control, including but not limited to any failure by the Customer to:
          (a)    make a selection; or
          (b)  have the Worksite ready for the Works; or
          (c)    notify Burkert that the Worksite is ready.

7.3  At Burkert’s sole discretion, the cost of delivery is included in the Price.

7.4  Any time specified by Burkert for delivery of the Works is an estimate only and Burkert will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Works to be supplied at the time and place as was arranged between both parties. In the event that Burkert is unable to supply the Works as agreed solely due to any action or inaction of the Customer, then Burkert shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date, and/or for storage of the Materials.

8.    Risk

8.1    If Burkert retains ownership of the Materials under clause 13 then:
          (a)    where Burkert is supplying Materials only, all risk for the Materials shall immediately pass to the Customer on delivery and the Customer must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that either:
              (I) the Customer or the Customer’s nominated carrier takes possession of the Materials at Burkert’s address; or
              (ii) the Materials are delivered by Burkert or Burkert’s nominated carrier to the Customer’s nominated delivery address (even if the Customer is not present at the address).
          (b)    unless otherwise agreed, where Burkert is to both supply and install Materials then Burkert shall maintain a Contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Customer.

8.2    Notwithstanding the provisions of clause 8.1 if the Customer specifically requests Burkert to leave Materials outside Burkert’s premises for collection or to deliver the Materials to an unattended location then such Materials shall always be left at sole risk of the Customer and it shall be the Customer’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Customer’s expense.

8.3    The Customer warrants that the structure of the premises or equipment in or upon which the Materials are to be installed or erected is sound and will sustain the installation and work incidental thereto and Burkert shall not be liable for any claims, demands, losses, damages, costs, and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation.

8.4    Burkert shall not be liable for any defect or damage resulting from incorrect or faulty installation of the Materials by any third party.

8.5    Detailed drawings of any services that will be embedded in the Materials are to be provided to Burkert prior to commencement of any Works. Whilst all due care will be taken no liability will be accepted by Burkert for damage to the services or any other element embedded in the Materials.

8.6    Burkert accepts no responsibility for any damage or performance related problems with any Materials where they have not been used and/or maintained in accordance with Burkert’s and/or the manufacturers’ recommendations.

8.7    The Customer acknowledges that:
          (a) Burkert is only responsible for parts that are replaced/provided by Burkert and does not at any stage accept any liability in respect of components supplied by any other third party that subsequently fail and are found to be the source of the failure, the Customer agrees to indemnify Burkert against any loss or damage thereto, or caused thereby, or any part thereof howsoever arising; and
          (b) Materials supplied may:
              (i)    exhibit variations in shade, colour, texture, surface, finish, markings and may fade or change colour over time;
              (ii)    expand, contract, or distort as a result of exposure to heat, cold, weather;
              (iii)    mark or stain if exposed to certain substances; and
              (iv)    be damaged or disfigured by impact or scratching.

9.    Dimensions, Plans and Specifications

9.1    Burkert shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer and/or the Customer’s agent. Burkert accepts no responsibility for faulty or defective workmanship as a consequence of errors or omissions in the design documentation.

9.2    If the giving of an estimate or quotation for the supply of Materials involves Burkert estimating measurements and quantities, it shall be the responsibility of the Customer to verify the accuracy of Burkert’s estimated measurements and quantities before the Customer places an order based on such estimate or accepts such quotation.

9.3    Should the Customer require any changes to Burkert’s estimated measurements and quantities, the Customer shall request such changes in writing, in the case of an estimate before placing an order based on that estimate and in the case of a quotation before acceptance of that quotation.

10.    Access

10.1    The Customer shall ensure that Burkert has always clear and free access to the Worksite to enable them to undertake the Works (including carrying out Worksite inspections, gain signatures for required documents, and for the delivery and installation of the Materials). Burkert shall not be liable for any loss or damage to the Worksite (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of Burkert.

11.    Service Locations

11.1    Prior to Burkert commencing any work the Customer must advise Burkert of the precise location of all services on the Worksite and clearly mark the same. The mains and services the Customer must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on the Worksite.

11.2    Whilst Burkert will take all care to avoid damage to any services the Customer agrees to indemnify Burkert in respect of all and any liability claims, loss, damage, costs, and fines as a result of damage to services not precisely located and notified as per clause 11.1.

12.    Compliance with Laws

12.1    The Customer and Burkert shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works, including any WorkSafe health and safety laws relating or any other relevant safety standards or legislation pertaining to the Works.

12.2    Where the Customer has supplied products for Burkert to complete the Works, the Customer acknowledges that it accepts responsibility for the suitability of purpose and use for their products and the Intended Use and any faults inherent in those products. However, if in Burkert’s opinion, it is believed that the materials supplied are Non-Conforming products and will not conform with New Zealand regulations, then Burkert shall be entitled, without prejudice, to halt the Works until the appropriate conforming products are sourced and all costs associated with such a change to the plans and design will be invoiced in accordance with clause 6.2.
 
12.3    The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Works.
12.4    Notwithstanding clause 12.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”), Burkert agrees at all times to comply with sections 28 and 34 of the “HSW Act” with meeting their obligations for health and safety laws in the workplace regardless of whether they may be the party in control of the Worksite or where they may be acting as a sub-contractor for the Customer who has engaged a third party head contractor.

13.    Title

13.1    Burkert and the Customer agree that ownership of the Materials shall not pass until:
          (a)    the Customer has paid Burkert all amounts owing to Burkert; and
          (b)    the Customer has met all of its other obligations to Burkert.

13.2    Receipt by Burkert of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.

13.3    It is further agreed that:
          (a)    until ownership of the Materials passes to the Customer in accordance with clause 13.1 that the Customer is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to Burkert on request;
          (b)    the Customer holds the benefit of the Customer’s insurance of the Materials on trust for Burkert and must pay to Burkert the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed;
          (c)    the production of these terms and conditions by Burkert shall be sufficient evidence of Burkert’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with Burkert to make further enquiries;
          (d)    the Customer must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Materials then the Customer must hold the proceeds of any such act on trust for Burkert and must pay or deliver the proceeds to Burkert on demand;
          (e)    the Customer should not convert or process the Materials or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of Burkert and must sell, dispose of or return the resulting product to Burkert as it so directs;
          (f)    unless the Materials have become fixtures the Customer irrevocably authorises Burkert to enter any premises where Burkert believes the Materials are kept and recover possession of the Materials;
          (g)    Burkert may recover possession of any Materials in transit whether or not delivery has occurred;
          (h)    the Customer shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of Burkert; and
              (i)    Burkert may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Customer.

14.    Personal Property Securities Act 1999 (“PPSA”)

14.1    Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:
          (a)    these terms and conditions constitute a security agreement for the purposes of the PPSA; and
          (b)    a security interest is taken in all Materials that have previously been supplied and that will be supplied in the future by Burkert to the Customer and the proceeds from such Materials as listed by Burkert to the Customer in invoices rendered from time to time.

14.2    The Customer undertakes to:
          (a)    sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Burkert may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
          (b)    indemnify, and upon demand reimburse, Burkert for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Materials charged thereby;
          (c)    not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials or the proceeds of such Materials in favour of a third party without the prior written consent of Burkert; and
          (d)    immediately advise Burkert of any material change in its business practices of selling Materials which would result in a change in the nature of proceeds derived from such sales.

14.3    Burkert and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.

14.4    The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.

14.5    Unless otherwise agreed to in writing by Burkert, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.

14.6    The Customer shall unconditionally ratify any actions taken by Burkert under clauses 14.1 to 14.5.

14.7    Subject to any express provisions to the contrary (including those contained in this clause 14), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

15.    Security and Charge

15.1    In consideration of Burkert agreeing to supply the Works, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, and the Customer grants a security interest in all of its present and after-acquired property, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money). The terms of the charge and security interest are the terms of Memorandum 2018/4344 registered pursuant to s.209 of the Land Transfer Act 2017.

15.2    The Customer indemnifies Burkert from and against all Burkert’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Burkert’s rights under this clause.

15.3    The Customer irrevocably appoints Burkert and each director of Burkert as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Customer’s behalf.

16.    Defects and Returns

16.1    The Customer shall inspect the Materials on delivery and shall within seven (7) days of delivery (time being of the essence) notify Burkert of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford Burkert an opportunity to inspect the Materials within a reasonable time following delivery if the Customer believes the Materials are defective in any way. If the Customer shall fail to comply with these provisions the Materials shall be presumed to be free from any defect or damage. For defective Materials, which Burkert has agreed in writing that the Customer is entitled to reject, Burkert’s liability is limited to either (at Burkert’s discretion) replacing the Materials or repairing the Materials.

16.2    Returns will only be accepted provided that:
          (a)    the Customer has complied with the provisions of clause 16.1; and
          (b)    Burkert has agreed in writing to accept the return of the Materials; and
          (c)    the Materials are returned at the Customer’s cost within seven (7) days of the delivery date; and
          (d)    Burkert will not be liable for Materials which have not been stored or used in a proper manner; and
          (e)    the Materials are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.

16.3    Burkert may (in its discretion) accept the return of Materials for credit but this may incur a handling fee of fifteen percent (15%) of the value of the returned Materials plus any freight.

16.4    Subject to clause 16.1, non-stocklist items or Materials made to the Customer’s specifications are under no circumstances acceptable for credit or return.

17.    Warranties

17.1    Subject to the conditions of warranty set out in clause 17.2 Burkert warrants that if any defect in any workmanship provided by Burkert becomes apparent and is reported to Burkert within twelve (12) months of the date of delivery (time being of the essence) then Burkert will either (at Burkert’s sole discretion) replace or remedy the defect.

17.2    The conditions applicable to the warranty given by clause 17.1 are:
          (a)    the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
              (i)    failure on the part of the Customer to properly maintain any Materials or serviced item; or
              (ii)    failure on the part of the Customer to follow any instructions or guidelines provided by Burkert; or
              (iii)    any use of any Materials or serviced item otherwise than for any application specified on a quote or order form; or
              (iv)    the continued use of any Materials or serviced item after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
              (v)    fair wear and tear, any accident or act of God.
          (b)    the warranty shall cease and Burkert shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without Burkert’s consent.
          (c)    in respect of all claims Burkert shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.

17.3    For Materials not manufactured by Burkert, the warranty shall be the current warranty provided by the manufacturer of the Materials. Burkert shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Materials.

18.    Consumer Guarantees Act 1993

18.1    If the Customer is acquiring Materials for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 (“CGA”) do not apply to the supply of Materials by Burkert to the Customer.

19.    Intellectual Property

19.1    Where Burkert has designed, drawn, written plans or a schedule of Works, or created any products for the Customer, then the copyright in all such designs, drawings, documents, plans, schedules, and products shall remain vested in Burkert, and shall only be used by the Customer at Burkert’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of Burkert.

19.2    The Customer warrants that all designs, specifications, or instructions given to Burkert will not cause Burkert to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Burkert against any action taken by a third party against Burkert in respect of any such infringement.

19.3    The Customer agrees that Burkert may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which Burkert has created for the Customer.

20.    Default and Consequences of Default

20.1    Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Burkert’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

20.2    If the Customer owes Burkert any money the Customer shall indemnify Burkert from and against all costs and disbursements incurred by Burkert in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Burkert’s collection agency costs, and bank dishonour fees).

20.3    Further to any other rights or remedies Burkert may have under this Contract, if a Customer has made payment to Burkert, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Burkert under this clause 20, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.

20.4    Without prejudice to Burkert’s other remedies at law Burkert shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Burkert shall, whether or not due for payment, become immediately payable if:
          (a)    any money payable to Burkert becomes overdue, or in Burkert’s opinion the Customer will be unable to make a payment when it falls due;
          (b)    the Customer has exceeded any applicable credit limit provided by Burkert;
          (c)    the Customer becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
          (d)    a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

21.    Cancellation

21.1    Without prejudice to any other rights or remedies Burkert may have, if at any time the Customer is in breach of any obligation (including those relating to payment and/or failure to remedy any breach in respect of this Contract within ten (10) working days of receipt by the Customer of such notice/s) then Burkert may suspend or terminate the supply of the Works. Burkert will not be liable to the Customer for any loss or damage the Customer suffers because Burkert has exercised its rights under this clause.

21.2    Burkert may cancel any Contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Customer. On giving such notice Burkert shall repay to the Customer any sums paid in respect of the Price, less any amounts owing by the Customer to Burkert for Works already performed. Burkert shall not be liable for any loss or damage whatsoever arising from such cancellation.

21.3    In the event that the Customer cancels the delivery of Works the Customer shall be liable for any and all loss incurred (whether direct or indirect) by Burkert as a direct result of the cancellation (including, but not limited to, any loss of profits).

21.4    Cancellation of orders for products made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

22.    Privacy Policy

22.1    All emails, documents, images, or other recorded information held or used by Burkert is “Personal Information” as defined and referred to in clause 22.3 and therefore considered confidential. Burkert acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 2020 (“the Act”) including Part II of the OECD Guidelines and as set out in the Act. Burkert acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customer’s Personal Information, held by Burkert that may result in serious harm to the Customer, Burkert will notify the Customer in accordance with the Act. Any release of such Personal Information must be in accordance with the Act and must be approved by the Customer by written consent, unless subject to an operation of law.

22.2    Notwithstanding clause 22.1, privacy limitations will extend to Burkert in respect of Cookies where the Customer utilises Burkert’s website to make enquiries. Burkert agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Customer’s:
          (a)    IP address, browser, email client type and other similar details;
          (b)    tracking website usage and traffic; and
          (c)    reports are available to Burkert when Burkert sends an email to the Customer, so Burkert may collect and review that information (“collectively Personal Information”)
If the Customer consents to Burkert’s use of Cookies on Burkert’s website and later wishes to withdraw that consent, the Customer may manage and control Burkert’s privacy controls via the Customer’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.

22.3    The Customer authorises Burkert or Burkert’s agent to:
          (a)    access, collect, retain and use any information about the Customer;
              (i)    (including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer’s creditworthiness; or
              (ii)    for the purpose of marketing products and services to the Customer.
          (b)    disclose information about the Customer, whether collected by Burkert from the Customer directly or obtained by Burkert from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.

22.4    Where the Customer is an individual the authorities under clause 22.3 are authorities or consents for the purposes of the Privacy Act 2020.

22.5    The Customer shall have the right to request (by e-mail) from Burkert, a copy of the Personal Information about the Customer retained by Burkert and the right to request that Burkert correct any incorrect Personal Information.

22.6    Burkert will destroy Personal Information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.

22.7    The Customer can make a privacy complaint by contacting Burkert via e-mail. Burkert will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within twenty (20) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Privacy Commissioner at http://www.privacy.org.nz.

23.    Service of Notices

23.1    Any written notice given under this Contract shall be deemed to have been given and received:
          (a)    by handing the notice to the other party, in person;
          (b)    by leaving it at the address of the other party as stated in this Contract;
          (c)    by sending it by registered post to the address of the other party as stated in this Contract;
          (d)    if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
          (e)    if sent by email to the other party’s last known email address.

23.2    Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

24.    Trusts

24.1    If the Customer at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not Burkert may have notice of the Trust, the Customer covenants with Burkert as follows:
          (a)    the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
          (b)    the Customer has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
          (c)    the Customer will not without consent in writing of Burkert (Burkert will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
              (i)    the removal, replacement or retirement of the Customer as trustee of the Trust;
              (ii)    any alteration to or variation of the terms of the Trust;
              (iii)    any advancement or distribution of capital of the Trust; or
              (iv)    any resettlement of the trust property.

25.    General

25.1    Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising herein, shall be submitted to, and settled by, mediation before resorting to any external dispute resolution mechanisms (including arbitration or court proceedings) by notifying the other party in writing setting out the reason for the dispute. The parties shall share equally the mediator’s fees. Should mediation fail to resolve the dispute, the parties shall be free to pursue other dispute resolution avenues.

25.2    The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality, and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

25.3    These terms and conditions and any Contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.

25.4    Subject to the CGA, Burkert shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Burkert of these terms and conditions (alternatively Burkert’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).

25.5    Burkert may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.

25.6    The Customer cannot licence or assign without the written approval of Burkert.

25.7    Burkert may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of Burkert’s sub- contractors without the authority of Burkert.

25.8    The Customer agrees that Burkert may amend their general terms and conditions for subsequent future Contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for Burkert to provide Works to the Customer.

25.9    Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Customer to make a payment to Burkert.

25.10    Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.

26.    No Re-Export Clause

26.1    Buyer acknowledges that Seller is required to comply with applicable export / import laws
and regulations relating to the sale, export, import, transfer, assignment, disposal and use of the Products, including any export / import license requirements, in particular the country import laws of the Buyer, European foreign trade and sanctions laws, in particular for products as per Regulation    EU    833/2014    (https://eur-lex.europa.eu/legalcontent/EN/TXT/?uri=CELEX%3A02014R0833-20240224). Buyer agrees as a fundamental obligation that Products will not at any time directly or indirectly be used, exported, imported, sold, transferred, assigned or otherwise disposed of in a manner which will result in non-compliance with any export / import laws and regulations, e.g. circumvention of said laws and regulations. Either Parties’ continuing performance hereunder is conditioned on compliance with such export / import laws and regulations at all times.

26.2    The Buyer confirms that it will not (re-)sell or use the products outside the country of his
company registration or export into a country with limitations as per any of the laws mentioned in paragraph (1). Buyer shall not intentionally or in acting with reckless disregard frustrate the purpose of paragraph (1) using any third parties further down the commercial chain, including by possible resellers.

26.3    The Buyer shall inform the Seller and the Parties shall coordinate in case of any problems in applying paragraphs (1) - (4),including sharing of necessary information without undue delay.

26.4    Any Buyer’s culpable violation of paragraphs (1), (2) or (3) shall constitute a material breach of an essential element of this agreement, and the Buyer shall (i) indemnify and hold harmless Seller on first written demand for the full cost of any enforcement penalties and for any other related losses, including Seller’s reasonable legal fees, full cost of any enforcement penalties imposed as a result of Buyer’s breach, (ii) Seller may terminate the contract immediately without prejudice, and (iii) any advance payments received by Seller for Sanctioned Goods not delivered at the time of termination as per (4)(ii), shall remain with Seller as non-refundable compensation and be deducted from any damages due as per paragraph (4) (i)