BurrowTech Limited – Terms & Conditions of Trade
Definitions 1
1.1 “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.
1.2 “BTL” means BurrowTech Limited, its successors and assigns or any person acting on behalf of and with the authority of BurrowTech Limited.
1.3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting BTL to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) if the Client is a partnership, it shall bind each partner jointly and severally; and
(c) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Client’s executors, administrators, successors and permitted assigns.
1.4 “Goods” means all Goods or Services supplied by BTL to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.5 “Equipment” means all Equipment including any accessories supplied on hire by BTL to the Client (and where the context so
permits shall include any supply of Services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by BTL to the Client.
1.6 “Minimum Hire Period” means the Minimum Hire Period as described on the invoices, quotation, authority to hire, or any other forms as provided by BTL to the Client.
1.7 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form
including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to,“Personal Information” such as: 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) and pricing details.
1.8 “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 Client does not wish to allow Cookies to operate in the background when ordering from the website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Goods via the website.
1.9 “Price” means the Price payable for the Goods/Equipment hire (plus any Goods and Services Tax (“GST”) where applicable) as agreed between BTL and the Client in accordance with clause 6 below
2 Acceptance
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts Delivery of the Goods/Equipment.
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 Client acknowledges and accepts that:
(a) the supply of Goods/Equipment on credit shall not take effect until the Client has completed a credit application with BTL and it has been approved with a credit limit established for the account; and
(b) in the event that the supply of Goods/Equipment request exceeds the Clients credit limit and/or the account exceeds the payment terms, BTL reserves the right to refuse Delivery; and
(c) installation is at BTL’s standard rates, maintenance and service contracts may incur additional travel charges unless otherwise agreed.
2.5 Where BTL gives any advice, recommendation, information, assistance or service provided by BTL in relation to Goods or Services supplied is given in good faith to the Client, or the Client’s agent and is based on BTL’s own knowledge and experience and shall be accepted without liability on the part of BTL. Where such advice or recommendations are not acted upon then BTL shall require the Client or their agent to authorise commencement of the Services in writing. BTL shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.
2.6 These terms and conditions may be meant to be read in conjunction with BTL’s Service contract if there are any inconsistencies between the two documents then the terms and conditions contained therein shall prevail.
2.7 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 Client acknowledges and accepts that BTL 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 BTL 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 BTL in respect of the Services.
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 BTL; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
4. Authorised Representatives
4.1 Unless otherwise limited as per clause 4.2 the Client agrees that should the Client introduce any third party to BTL as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Goods, Equipment or Services on the Client’s behalf and/or to request any variation to the Services on the Client’s behalf (such authority to continue until all requested Services have been completed or the Client otherwise notifies BTL in writing that said person is no longer the Client’s duly authorised representative).
4.2 In the event that the Client’s duly authorised representative as per clause 4.1 is to have only limited authority to act on the Client’s behalf then the Client must specifically and clearly advise BTL in writing of the parameters of the limited authority granted to their representative.
4.3 The Client specifically acknowledges and accepts that they will be solely liable to BTL for all additional costs incurred by BTL (including BTL’s profit margin) in providing any Services, Goods or Equipment or variation/s requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 4.2 (if any)).
5. Change in Control
5.1 The Client shall give BTL not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Client shall be liable for any loss incurred by BTL as a result of the Client’s failure to comply with this clause.
6. Price and Payment
6.1 At BTL’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by BTL to the Client; or (b) BTL’s quoted price (subject to clause 6.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
6.2 BTL reserves the right to change the Price:
(a) if a variation to the Goods which are to be supplied is requested; or
(b) if during the course of the Services, the Goods cease to be available from BTL’s third-party suppliers, then BTL reserves the right to provide alternative Goods, subject to prior confirmation and agreement of both parties; or
(c) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
(d) where additional Services are required due to the discovery of hidden or unidentifiable difÏculties (including, but not limited to, limitations to accessing the site, on site condition of plug and/or the specification of plug that may not be type required for job, availability of machinery, safety considerations, prerequisite work by any third party not being completed or non-code compliant, etc) which are only discovered on commencement of the Services; or
(e) in the event of increases to BTL 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) which are beyond BTL’s control.
6.3 Variations will be charged for on the basis of BTL’s quotation, and will be detailed in writing, and shown as variations on BTL’s invoice. The Client shall be required to respond to any variation submitted by BTL within ten (10) working days. Failure to do so will entitle BTL 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 BTL’s sole discretion a non-refundable deposit may be required.
6.5 Time for payment for the Goods/Equipment being of the essence, the Price will be payable by the Client on the date/s determined by BTL, which
may be:
(a) on or before Delivery of the Goods/Equipment;
(b) by way of instalments/progress payments in accordance with BTL’s payment schedule;
(c) for certain approved Client’s, due twenty (20) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
(d) the date which is fourteen (14) days following the date of any invoice given to the Client by BTL; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by BTL.
6.6 BTL may in its discretion allocate any payment received from the Client towards any invoice that BTL determines and may do so at the time of receipt or at any time afterwards. On any default by the Client BTL may reallocate any payments previously received and allocated. In the absence of any payment allocation by BTL, payment will be deemed to be allocated in such manner as preserves the maximum value of BTL’s Purchase Money Security Interest (as defined in the PPSA) in the Goods/Equipment.
6.7 No allowance has been made in the Price for the deduction of retentions. In the event that retentions are made, BTL reserves the right to treat all retentions as placing the Client’s account into default.
6.8 Payment may be made by electronic/on-line banking, credit card (a surcharge per transaction may apply), or by any other method as agreed to between the Client and BTL.
6.9 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by BTL nor to withhold payment of any invoice because part of that invoice is in dispute.
6.10 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to BTL an amount equal to any GST BTL must pay for any supply by BTL under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client 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. Delivery of Goods/Equipment
7.1 Delivery (“Delivery”) of the Goods/Equipment is taken to occur at the time that BTL (or BTL’s nominated carrier) delivers the Goods/Equipment to the Client’s nominated address even if the Client is not present at the address.
7.2 At BTL’s sole discretion the cost of Delivery is included in the Price.
7.3 BTL may deliver the Goods/Equipment in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
7.4 Any time specified by BTL for Delivery of the Goods/Equipment is an estimate only and BTL will not be liable for any loss or damage incurred by the Client as a result of Delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods/Equipment to be
delivered at the time and place as was arranged between both parties. In the event that BTL is unable to supply the Goods/Equipment as agreed solely due to any action or inaction of the Client, then BTL shall be entitled to charge a reasonable fee for redelivery and/or storage.
8. Risk
8.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
8.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Client, BTL is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by BTL is sufÏcient evidence of BTL’s rights to receive the insurance proceeds without the need for any person dealing with BTL to make further enquiries.
8.3 If the Client requests BTL to leave Goods outside BTL’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
8.4 The Client warrants that the structure of the premises or equipment in or upon which the Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and BTL 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.
8.5 The Client acknowledges and accepts that:
(a) BTL utilises GPS monitoring, regular servicing of the Goods is mandatory after the usage limit is reached; and
(b) BTL will undertake seasonal testing on multi plug sites and will advise the Client where repairs and/or maintenance are required. In the event that the Client chooses not to undertake the recommended repairs and/or maintenance then BTL will not accept any liability for any further loss or damages to the Goods due to the Client’s failure to adhere to this clause; and
(c) BTL is only responsible for parts that are replaced/provided by BTL 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 Client agrees to indemnify BTL against any loss or damage thereto, or caused thereby, or any part thereof howsoever arising; and
(d) BTL shall not be liable for any defect or damage resulting from incorrect or faulty installation of the Goods by any third party; and
(e) Goods supplied may:
(i) exhibit variations in shade, colour, texture, surface, finish, markings and may fade or change colour over time; and
(ii) expand, contract or distort as a result of exposure to heat, cold, weather; and
(iii) mark or stain if exposed to certain substances; and
(iv) be damaged or disfigured by impact or scratching.
8.6 BTL will not be held liable if the Goods are not stored correctly (including but not limited to left exposed to the elements etc).
8.7 BTL shall not be liable whatsoever for:
(a) any loss or damage to the Services that is caused by any other tradesmen during and after the completion of the Services; or
(b) delays caused by the Client and/or any other third-party contractors that impacts on the provision of the Services by BTL; and
(c) materials and/or works supplied by the Client and/or any other third party.
8.8 Where the Client instructs BTL to rectify any damage caused by any other tradesman, this will become a variation to the original quotation and will be charged at BTL’s normal hourly rate.
8.9 BTL accepts no responsibility for any damage or performance related problems with any Goods where they have not been used and/or maintained in accordance with BTL’s and/or the manufacturers’ recommendations.
9. Dimensions, Plans and Specifications
9.1 BTL shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client
and/or the Client’s agent. BTL 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 Goods involves BTL estimating measurements and quantities, it shall be the responsibility of the Client to verify the accuracy of BTL’s estimated measurements and quantities, before the Client places an order based on such estimate or accepts such quotation.
9.3 Should the Client require any changes to BTL’s estimated measurements and quantities, the Client 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 Client shall ensure that BTL has clear and free access to the site at all times to enable them to undertake the Services. BTL shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of BTL.
10.2 Unless otherwise agreed it shall be the Client’s responsibility to provide any heavy equipment that may be required for the installation of the Goods, where the equipment is deemed not to be fit for purpose, BTL will arrange to supply the equipment, any additional costs will be invoiced to the Client as a variation in accordance with clause 6.2. 10.3 It is the responsibility of the Client to ensure that access is suitable to accept the weight of laden trucks or any other equipment as may be deemed necessary by BTL.
11. Underground Locations
11.1 Prior to BTL commencing the Services the Client must advise BTL of the precise location of all underground services on the site and clearly mark the same. The underground mains and services the Client 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 site.
11.2 Whilst BTL will take all care to avoid damage to any underground services the Client agrees to indemnify BTL 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 Client and BTL shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services.
12.2 The Client shall obtain (at the expense of the Client) all licenses, resource consents and approvals that may be required for the Services.
12.3 The Client agrees that the site will comply with any WorkSafe guidelines relating to the site and any other relevant safety standards or legislation.
13. Title to Goods
13.1 BTL and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid BTL all amounts owing to BTL; and
(b) the Client has met all of its other obligations to BTL.
13.2 Receipt by BTL 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 Goods passes to the Client in accordance with clause 13.1 that the Client is only a bailee of the Goods and must return the Goods to BTL on request;
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for BTL and must pay to BTL the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If
the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for BTL and must pay or deliver the proceeds to BTL on demand;
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of BTL and must sell, dispose of or return the resulting product to BTL as it so directs;
(e) the Client irrevocably authorises BTL to enter any premises where BTL believes the Goods are kept and recover possession of the Goods;
(f) BTL may recover possession of any Goods in transit whether or not Delivery has occurred;
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain
the property of BTL;
(h) BTL may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
14. Personal Property Securities Act 1999 (“PPSA”)
14.1 Upon assenting to these terms and conditions in writing the Client 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 Goods/Equipment and/or collateral (account) – being a monetary obligation of the Client to BTL for Services – that have previously been supplied and that will be supplied in the future by BTL to the Client.
14.2 The Client 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 BTL may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, BTL for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods/Equipment charged thereby;
(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods/Equipment and/or collateral (account) in favour of a third party without the prior written consent of BTL; and
(d) immediately advise BTL of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.
14.3 BTL and the Client agree that nothing in sections 114 (1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
14.4 The Client 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 BTL, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
14.6 The Client shall unconditionally ratify any actions taken by BTL 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.
14.8 Only to the extent that the hire of the Equipment exceeds a six (6) month hire period with the right of renewal shall clause 14 apply as a security agreement in the form of a PPS Lease in respect of Section 36 of the PPSA, in all other matters this clause 14 will apply generally for the purposes of the PPSA.
15. Security and Charge
15.1 In consideration of BTL agreeing to supply the Goods/Equipment, the Client 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 Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
15.2 The Client indemnifies BTL from and against all BTL’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising
BTL’s rights under this clause.
15.3 The Client irrevocably appoints BTL and each director of BTL as the Client’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 Client’s behalf.
16. Defects and Returns
16.1 The Client shall inspect the Goods/Equipment on Delivery and shall within seven (7) days of Delivery (time being of the essence) or as referenced within the service contract notify BTL of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford BTL an opportunity to inspect the Goods/Equipment within a reasonable time following Delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods/Equipment shall be presumed to be free from any defect or damage. For defective Goods/Equipment, which BTL has agreed in writing that the Client is entitled to reject, BTL’s liability is limited to either (at BTL’s discretion) replacing the Goods/Equipment or repairing the Goods/Equipment.
16.2 Returns of Goods will only be accepted provided that:
(a) the Client has complied with the provisions of clause 16.1; and
(b) BTL has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Client’s cost within fourteen (14) days of the Delivery date; and (d) BTL will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods 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 Subject to clause 16.1, non-stocklist items or Goods made to the Client’s specifications are under no circumstances acceptable
for credit or return.
16.4 Non-defective returns will be subject to a restocking fee of 15%.
17. Warranty
17.1 Subject to the conditions of warranty set out in Clause 17.2 BTL warrants that if any defect in any workmanship of BTL becomes apparent and is reported to BTL three (3) months of the date of Delivery (time being of the essence) then BTL will either (at BTL’s sole discretion) replace or remedy the workmanship.
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 Client to properly maintain any Goods; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by BTL; or
(iii) any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods 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 BTL shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without BTL’s consent.
(c) in respect of all claims BTL shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
17.3 For Goods not manufactured by BTL, the warranty shall be the current warranty provided by the manufacturer of the Goods. BTL 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 Goods.
18. Consumer Guarantees Act 1993
18.1 If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by BTL to the Client
19. Intellectual Property
19.1 Where BTL has designed, drawn or developed Goods/Equipment for the Client, then the copyright in any designs and drawings and documents shall remain the property of BTL. Under no circumstances may such designs, drawings and documents be used without the express written approval of BTL.
19.2 The Client warrants that all designs, specifications or instructions given to BTL will not cause BTL to infringe any patent,
registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify BTL against any action taken by a third party against BTL in respect of any such infringement.
19.3 The Client agrees that BTL may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which BTL has created for the Client.
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 BTL’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
20.2 If the Client owes BTL any money the Client shall indemnify BTL from and against all costs and disbursements incurred by BTL in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, BTL’s collection agency costs, and bank dishonour fees).
20.3 Further to any other rights or remedies BTL may have under this Contract, if a Client has made payment to BTL, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by BTL under this clause 20, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
20.4 Without prejudice to BTL’s other remedies at law BTL shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to BTL shall, whether or not due for payment, become immediately payable if:
(a) any money payable to BTL becomes overdue, or in BTL’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by BTL;
(c) the Client 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
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
21. Cancellation
21.1 Without prejudice to any other remedies BTL may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions BTL may suspend or terminate the supply of Goods/Equipment to the Client. BTL will not be liable to the Client for any loss or damage the Client suffers because BTL has exercised its rights under this clause.
21.2 BTL may cancel any contract to which these terms and conditions apply or cancel Delivery of Goods/Equipment at any time before the
Goods/Equipment are due to be delivered by giving written notice to the Client. On giving such notice BTL shall repay to the Client any money paid by the
Client for the Goods/Equipment. BTL shall not be liable for any loss or damage whatsoever arising from such cancellation.
21.3 In the event that the Client cancels Delivery of the Goods/Equipment the Client shall be liable for any and all loss incurred (whether direct or indirect) by BTL as a direct result of the cancellation (including, but not limited to, any loss of profits).
21.4 Cancellation of orders for Goods made to the Client’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 BTL is Personal Information as defined and referred to in clause 22.3 and therefore considered confidential. BTL acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1993 (“the Act”) including Part II of the OECD Guidelines and as set out in Schedule 5A of the Act and any statutory requirements where relevant in a European Economic Area “EEA” then the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). BTL acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Clients Personal Information, held by BTL that may result in serious harm to the Client, BTL will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
22.2 Notwithstanding clause 22.1, privacy limitations will extend to BTL in respect of Cookies where transactions for purchases/orders transpire
directly from BTL’s website. BTL 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 Client’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and trafÏc; and
(c) reports are available to BTL when BTL sends an email to the Client, so BTL may collect and review
that information (“collectively Personal Information”) In order to enable / disable the collection of Personal Information by way of Cookies, the Client shall have the right to enable /disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via BTL’s website.
22.3 The Client authorises BTL or BTL’s agent to:
(a) access, collect, retain and use any information about the Client;
(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 Client’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Client.
(b) disclose information about the Client, whethercollected by BTL from the Client directly or obtained by BTL 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 Client.
22.4 Where the Client is an individual the authorities under clause 22.3 are authorities or consents for the purposes of the Privacy Act 1993.
22.5 The Client shall have the right to request BTL for a copy of the Personal Information about the
Client retained by BTL and the right to request BTL to correct any incorrect Personal Information about the Client held by BTL.
23. Equipment Hire
23.1 Hire charges shall commence from the time the Equipment is collected by the Client from BTL’s premises and will continue until the return of the Equipment to BTL’s premises, and/or until the expiry of the Minimum Hire Period, whichever last occurs.
23.2 If BTL agrees with the Client to deliver and/or collect the Equipment, hire charges shall commence from the time the Equipment leaves BTL’s premises
and continue until the Client notifies BTL that the Equipment is available for collection, and/or until the expiry of the Minimum Hire Period, whichever last occurs.
23.3 The date upon which the Client advises of termination shall in all cases be treated as a full day’s hire.
23.4 No allowance whatsoever can be made for time during which the Equipment is not in use for any reason, unless BTL confirms special prior arrangements in writing. In the event of Equipment breakdown provided the Client notifies BTL immediately, hiring charges will not be payable during the time the Equipment is not working,
unless the condition is due to negligence or misuse on the part of or attributable to the Client.
23.5 Equipment shall at all times remain the property of BTL and is returnable on demand by BTL. In the event that Equipment is not returned to BTL in the condition in which it was delivered BTL retains the right to charge the Client the full cost of repairing the Equipment. In the event that Equipment is not
returned at all BTL shall have right to charge the Client the full cost of replacing the Equipment.
23.6 The Client shall:
(a) keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to a lien over the Equipment.
(b) not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment.
(c) keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by BTL to the Client.
23.7 The Client accepts full responsibility for the safekeeping of the Equipment and the Client agrees to insure, or self insure, BTL’s interest in the Equipment and agrees to indemnify BTL against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual
risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Further the Client will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
23.8 Damage Waiver is not insurance, but is an agreement (where applicable under a separate agreement (by the Supplier that the Client’s liability for damage to the Equipment can be limited in some circumstances only, to an amount called the Damage Waiver Excess. The Client is not entering into a contract of insurance with the Supplier by paying for the Damage Waiver.
23.9 Nothing in Clause 28.1 will limit or exclude the Client’s responsibility and liability under this contract for Equipment that is lost, stolen or damaged beyond fair wear and tear during the Hire Term, or had broken down, or become unsafe to use as a result of the Client’s conduct or negligence.
24. Wet Hire
24.1 In the event of “wet” hire of the Equipment the operator of the Equipment remains an employee of BTL and operates the
Equipment in accordance with the Client’s instructions. As such BTL shall not be liable for any actions of the operator in following the Client’s instructions.
25. Suspension of Services
25.1 Where the Contract is subject to the Construction Contracts Act 2002, the Client hereby expressly acknowledges that:
(a) BTL has the right to suspend work within five (5) working days of written notice of its intent to do so if a payment claim is served on the Client, and:
(i) the payment is not paid in full by the due date for payment in accordance with clause 6.5 and/or any subsequent amendments or new legislation and no payment schedule has been given by the Client; or
(ii) a scheduled amount stated in a payment schedule issued by the Client in relation to the payment claim is not paid in full by the due date for its payment; or
(iii) the Client has not complied with an adjudicator’s notice that the Client must pay an amount to BTL by a particular date; and
(iv) BTL has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction Contract.
(b) if BTL suspends work, it:
(i) is not in breach of Contract; and
(ii) is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Client or by any person claiming through the Client; and
(iii) is entitled to an extension of time to complete the Contract; and
(iv) keeps its rights under the Contract including the right to terminate the Contract; and may at any time lift the suspension, even if the amount has not been paid or an adjudicator’s determination has not been complied with.
(c) if BTL exercises the right to suspend work, the exercise of that right does not:
(i) affect any rights that would otherwise have been available to BTL under the Contract and Commercial Law Act 2017; or (ii) enable the Client to exercise any rights that may otherwise have been available to the Client under that Act as a direct consequence of BTL suspending work under this provision;
(d) due to any act or omission by the Client, the Client effectively precludes BTL from continuing the Services or performing or complying with BTL’s obligations under this Contract, then without prejudice to BTL’s other rights and remedies, BTL may suspend the Services immediately after serving on the Client a
written notice specifying the payment default or the act, omission or default upon which the suspension of the Services is based. All costs and expenses incurred by BTL as a result of such suspension and recommencement shall be payable by the Client as if they were a variation.
25.2 If pursuant to any right conferred by this Contract, BTL suspends the Services and the default that led to that suspension continues un-remedied
subject to clause 21.1 for at least ten (10) working days, BTL shall be entitled to terminate the Contract, in accordance with clause 21.
26. Service of Notices
26.1 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.
26.2 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.
27. Trusts
27.1 If the Client 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 BTL may have notice of the Trust, the Client covenants with BTL as follows:
(a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
(b) the Client 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 Client against the Trust or the trust fund. The Client 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 Client will not without consent in writing of BTL (BTL will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
(i) the removal, replacement or retirement of the Client 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.
28. Force Majeure
28.1 Subject to clause 23.9, neither party shall be responsible for any delays in Delivery or Collection due to causes beyond their control (including, but not limited to, acts of God, war, terrorism, mobilisation, civil commotion, riots, embargoes, orders or regulations of Governments of any relevant jurisdiction, fires, floods, strikes, lockouts or other labour difÏculties, shortages of, or inability to obtain shopping space, or land transportation).
29. General
29.1 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.
29.2 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 Canterbury Courts of New Zealand.
29.3 BTL shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by BTL of these terms and conditions (alternatively BTL’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods/Equipment hire).
29.4 BTL may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
29.5 The Client cannot licence or assign without the written approval of BTL.
29.6 BTL may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of BTL’s sub-contractors without the authority of BTL.
29.7 The Client agrees that BTL may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for BTL to provide Goods/Equipment to the Client.
29.8 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.
