Terms & Conditions
1) Definitions
a) “Seller” means BJC Ltd, its successors and assigns or any person acting on behalf of and with the authority of BJC Ltd.
b) “Customer” shall mean the Customer and any person acting on behalf of and with the authority of the Customer.
c) “Goods” means all Goods or Services supplied by the Seller to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
d) “Price” means the cost of the goods as agreed between the Seller and the Customer in accordance with clause 4
2) Acceptance
a) 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 the Goods.
b) These terms and conditions may only be amended with the Seller’s consent in writing and shall prevail to the extent of any inconsistency with any other documenter agreement between the Customer and the Seller.
c) The Customer undertakes to give the Seller not less than (7) days prior written notice of any proposed change in the Customers name and or any change in the Customers details (including but not limited to changes in the Customers address facsimile phone number or business practice) and change of ownership.
3) Goods / Service
a) The Goods and or Services are as described on the invoices, quotation, work authorisation or any other work commencement forms as provided by the Seller to the Customer.
4) Price and Payment
a) At the Seller’s sole discretion the Price shall be either:
i) as indicated on any invoice provided by the Seller to the Customer; or
ii) the Seller’s quoted price (subject to clause 2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days: or
iii) The Sellers current Price at the date of delivery of the Goods according to theSellers current Price list; or
b) The Seller reserves the right to change the Price if a variation to the Seller’s quotation is requested. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of increases to the Seller in the cost of materials and labour or variations in currency exchange rates) will be charged for on the basis of the Seller’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
c) At the Seller’s sole discretion a non-refundable deposit may be required.
d) Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by the Seller, which may be:
i) Prior to manufacture commencing;
ii) on delivery of the Goods;
iii) for certain approved Customer’s, 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;
iv) the date specified on any invoice or other form as being the date for payment; or
v) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by the Seller.
e) Payment will be made by cash, cheque, bank cheque or direct credit, or any other method as agreed to between the Seller and the Customer.
f) Payment will be made in New Zealand Dollars (NZD) unless otherwise arranged.
g) The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable except to the extent that such taxes are expressly included in any quotation/ estimate given by the Seller.
5) Delivery of Goods
a) Delivery of the Goods shall be made to the Customers address. The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery, or delivery of the Goods shall be made to the Customer at the Sellers address.
b) Delivery of the Goods to a carrier, by the Seller for the purpose of transmission to the Customer, is deemed to be a delivery of the Goods to the Customer.
c) Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purpose of this agreement.
d) The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
e) The Seller shall not be liable for any loss or damage whatsoever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.
f) The Seller may deliver the Goods by separate instalments (in accordance with an agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions in this contract.
g) All transportation costs and insurance of the Goods provided by the Seller to the Customer shall be the Customers responsibility.
6) Risk
a) Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
7) Title
a) It is the intention of the Seller and agreed by the Customer that property in the Goods shall not pass until;
i) the Customer has paid all amounts owing for the particular Goods and:
ii) the Customer has met all other obligations due by the Customer to the Seller in respect of all the contracts between the Seller and the Customer, and that the Goods, or proceeds of the sale of the Goods, shall be kept separate until the Seller shall have received payment and all other obligations of the Customer are met.
iii) It is further agreed that:
(1) until such time as ownership of the Goods shall pass from the Seller to the Customer the Seller may give notice in writing to the Customer to return the Goods or any of them to the Seller. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease.
(2) If the Customer fails to return the Goods to the Seller then the Seller or the Sellers agent may enter upon and into land and premises owned or occupied or used by the Customer or at any premises as the invitee of the Customer to where the Goods are situated and take possession of the Goods without being responsible for any damage caused.
8) Security and Charge
a) In consideration of the Seller agreeing to supply the Goods, 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, 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).
b) The Customer indemnifies the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own Seller basis incurred in exercising the Seller’s rights under this clause.
c) The Customer irrevocably appoints the Seller and each director of the Seller as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 8 including, but not limited to, signing any document on the Customer’s behalf.
9) Defects / Returns
a) The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Seller has agreed in writing that the Customer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods or repairing the Goods.
b) Returns will only be accepted provided that:
i) the Customer has complied with the provisions of clause 9; and
ii) the Seller has agreed in writing to accept the return of the Goods; and
iii) the Goods are returned at the Customer’s cost within fourteen (14) days of the delivery date unless otherwise agreed; and
iv) the Seller will not be liable for Goods which have not been stored or used in a proper manner; and
v) the Goods are returned to the Seller at the Sellers address with all packaging material as is reasonable and possible in the circumstances, transport and insurance costs will be the responsibility of the Customer
vi) The Seller may (in its discretion) accept the return of Goods for credit. Non- stocklist items or Goods made to the Customer’s specifications are under no circumstances acceptable for credit or return.
10) Warranty
a) BJC warrants its Products against defects in material and workmanship for 12 months from the date of delivery, apart from any components for which a special warranty applies as detailed elsewhere in the sellers offer. Provided such Product is properly applied, used and maintained.
b) BJC Limited will repair (or at its option replace or refund) any part that is found to be defective within one year from date of delivery,
c) 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 Goods; or
ii) Failure on the part of the Customer to follow any Instructions or guidelines provided by the Seller; or
iii) Failure on the part of the Customer to properly outline any requirements to allow specification of correct materials, design and construction; or
iv) Any use of the Goods otherwise than for any application specified on a quote or order Form; or
v) The continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
vi) Failure of components found to be counterfeit; or
vii) Fair wear and tear, any accident or act of God.
d) The warranty shall cease and the Seller shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Sellers consent.
e) In respect of all claims the Seller shall not be liable to compensate the Customer for and delay in either replacing or repairing the workmanship/Goods or in assessing the Customers claim.
f) For Goods not manufactured by the Seller the warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller shall be under no liability whatsoever except for conditions as detailed and stipulated in the manufacturer’s warranty.
g) For Goods subject to a service or repair, a warranty period of 3 months shall apply from the date of completion of such service or repair.
h) To the extent permitted by statute, no warranty is given by the Seller as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. The Seller shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
11) Liability
a) The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon us which cannot by law (or which can only to a limited extend by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on us, our liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute. b) The Seller shall not be liable for:
i) Any loss or damage of any kind whatsoever including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from good provided by us to the Customer, and without limiting the generality of the foregoing of this clause we shall not be liable for any consequential loss or damage or injury of any Customer including without limitation any financial loss; and
ii) The Customer shall indemnify us against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence by us or otherwise, brought by any person in connection with any matter, act, omission, or error by our its agents or employees in connection with the goods.
12) Intellectual Property
a) Where the Seller has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of the Seller.
b) The Customer warrants that all designs, specifications or instructions given to the Seller will not cause the Seller to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Seller against any action taken by a third party against the Seller in respect of any such infringement.
c) The Customer agrees that the Seller may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which the Seller has created for the Customer.
13) Default and Consequences of Default
a) Interest on overdue invoices may accrue daily from the date when payment becomes due, until the date of payment, at a rate of two percent (2%) per calendar month (and at the Seller’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
b) If the Customer owes the Seller any money the Customer shall indemnify the Seller from and against all costs incurred by the Seller in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own Seller basis, the Seller’s collection agency costs, and bank dishonour fees).
c) Without prejudice to any other remedies the Seller may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions the Seller may suspend or terminate the supply of Goods to the Customer. The Seller will not be liable to the Customer for any loss or damage the Customer suffers because the Seller has exercised its rights under this clause.
d) Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable if:
i) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Customer will be unable to make a payment when it falls due;
ii) the Customer becomes insolvent, 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
iii) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
14) Cancellation
a) The Seller may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice the Seller shall repay to the Customer any money paid by the Customer for the Goods. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation.
b) In the event that the Customer cancels delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by the Seller as a direct result of the cancellation (including, but not limited to, any loss of profits).
c) Cancellation of orders for Goods 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.
15) Privacy Act 1993
a) The Customer authorises the Seller or the Seller’s agent to:
i) access, collect, retain and use any information about the Customer;
(1) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer’s creditworthiness; or
(2) for the purpose of marketing products and services to the Customer.
ii) disclose information about the Customer, whether collected by the Seller from the Customer directly or obtained by the Seller 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.
b) Where the Customer is an individual the authorities under clause 1 are authorities or consents for the purposes of the Privacy Act 1993.
c) The Customer shall have the right to request the Seller for a copy of the information about the Customer retained by the Seller and the right to request the Seller to correct any incorrect information about the Customer held by the Seller.
16) General
a) The failure by the Seller to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Seller’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.
b) 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.
c) The Seller 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 the Seller of these terms and conditions (alternatively the Seller’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
d) 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 the Seller nor to withhold payment of any invoice because part of that invoice is in dispute.
e) The Seller may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
f) The Customer agrees that the Seller may amend these terms and conditions at any time. If the Seller makes a change to these terms and conditions, then that change will take effect from the date on which the Seller notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for the Seller to provide Goods to the Customer.
g) The seller shall not be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, machinery breakdown, shortage, fire, flood, storm or other event beyond the reasonable control of the seller.
h) The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.