1 Price
1.1 Unless otherwise agreed in writing, any quoted price may be altered
before delivery of Goods to you.
1.2 We may withdraw a quotation before it is accepted and, in any event, a
quotation will lapse, without notice, 30 days after it is given.
1.3 Unless otherwise agreed in writing, all prices are exclusive of packaging,
freight, insurance and delivery charges and GST and other government
duties, levies or taxes in respect of the Goods. These will be charged at
the rates applying at the time of delivery.
2 Payment
2.1 Where we have agreed to extend credit to you, you must pay for Goods
in full, without deduction or set off, by the 20th day of the month
following the date of invoice. Your payment is made only when funds
have fully cleared through the bank system into our bank account.
2.2 If full payment for the Goods is not made by the due date, then without
prejudice to any other rights or remedies available to us:
(a) we may cancel or suspend the delivery of further Goods;
(b) we may charge interest on overdue monies on a daily basis at 5%
per annum above the current overdraft rate charged by our bankers
at that time, and interest shall continue to accrue both before and
after judgment;
(c) you will be responsible for all costs (including legal costs on a
solicitor/client basis) incurred by us in recovering such monies; and
2.3 Where we have agreed to extend credit to you, we may, from time to
time at our discretion, vary your credit limit with us. If a purchase of
Goods would exceed your current credit limit, we may require payment
in cash of the excess before delivery of them.
2.4 Despite clause 2.1 above or any agreement to the contrary, all
payments shall become immediately due and payable upon demand.
3 Ownership
3.1 Ownership in the Goods shall not pass to you at the time of delivery, but
will remain with us until we have received full payment, in cash or
cleared funds, of all monies owing by you to us.
3.2 Until all such monies have been paid:
(a) you will keep the Goods separate from any other goods in your
possession, and properly stored, protected and insured, and
identified as our property;
(b) all sums received from any insurance claim made in respect of loss of
or damage to the Goods shall be treated as if they were proceeds of
sale and held by you on the same terms as those set out in clause
3.2(e) below, and you will also hold on trust for us and, if required by
us, forthwith assign to us the benefit of any insurance claim made in
respect of the Goods;
(c) if the Goods are mixed with, or incorporated or processed by you into
other goods, those other goods shall be separately stored and
marked so as to be identifiable as being made from or with the
Goods;
(d) where the Goods are sold to you as inventory for resale, you may
resell them in the normal course of your business at full market
value, provided that (i) the resale shall be as principal in relation to
your sub-buyer but, as between you and us, you will sell as our
fiduciary agent and bailee and (ii) you hold the proceeds of the resale
on trust for us, and pay them into a separate bank account without
mixing them with other monies; and
(e) we may, at any time, require you to deliver the Goods (which have
not been resold) to us and, if you fail to do so forthwith, our
employees and agents may enter any premises where the Goods
might be stored and recover them, and you agree to indemnify us,
on demand, against any liability incurred by us in our exercise of this
right.
4 Risk and delivery
4.1 Delivery of the Goods will take place when they are received by a carrier
for delivery to you, or the time they are received by you or your agent,
whichever is earlier. When you ask us to deliver Goods directly to
another person, that person takes possession of the Goods for you as
your agent.
4.2 We will make every effort to ensure delivery of Goods is on time.
However, we shall not be liable to you for any failure to deliver on a
specified date or within a specified period, however that failure was
caused.
4.3 Despite clause 3 above, risk in respect of the Goods shall pass to you on
delivery in accordance with clause 4.1 above. You are responsible for
insurance of the Goods from that time.
4.4 Without limiting the previous provisions of this clause 4, all claims for
shortages or delivery damage must be made to the carrier and us within
seven days after delivery.
5 Returns and cancellation
5.1 Goods may be returned for credit only if we have agreed in writing, and
they are received by us at our premises where they were despatched
from within 7 days after delivery and in the same condition as they were
delivered to you. Returned Goods must be sent at your expense, with a
copy of the original packing slip or invoice. We are entitled to charge you
a restocking fee of 15% of the price of the Goods, or $30 (whichever is
greater).
5.2 You may not cancel an order for Goods, wholly or partly, without our
written consent. As a condition of giving our consent, we may require
reimbursement of any costs (including materials, handling fees and
labour) incurred by us in connection with the order up to the date of our
consent.
5.3 In addition to our rights under clause 2.2 above, we may cancel or
suspend an order for Goods, wholly or partly and without liability to you,
in the circumstances set out in clause 2.4 above or if fulfilling the order
becomes impractical or uneconomic due to any cause beyond our
control.
6 Consumer Guarantees Act 1993
6.1 If the CGA applies, these Terms shall be read subject to your rights
under the CGA.
6.2 Where you are acquiring the Goods for the purposes of a business (as
provided in sections 2 and 43 of the CGA), the CGA shall not apply.
6.3 We do not undertake that repair facilities and parts will be available for
the Goods and, accordingly, section 12 of the CGA shall not apply.
6.4 Subject to clause 6.2, Special Orders cannot not be refunded or
cancelled by you for any reason.
7 Warranties and liability
7.1 We warrant that we will replace or, at our option, repair Goods supplied
to you which are accepted to be defective free of charge, provided that
you notify us in writing of the defect in sufficient detail for the Goods
and the defect to be clearly identified within seven days after delivery,
and return the Goods to us at our premises where they were despatched
from at your expense.
7.2 We shall not be liable under a warranty for any defect arising from fair
wear and tear, wilful damage, negligence, abnormal working conditions,
failure to follow our instructions, misuse, or any alteration or repair of
the Goods not authorised by us or for any defect arising from a drawing,
design or specification supplied by you.
7.3 To the fullest extent permitted by law:
(a) our liability under these Terms is in substitution for, and to the
exclusion of, all other warranties, representations, conditions or
obligations imposed or implied by law, statute or otherwise in
relation to the Goods; and
(b) all liability for any indirect, special or consequential loss or damage of
any kind is expressly excluded.
8 Personal Property Securities Act 1999
8.1 You acknowledge and agree that, by accepting these Terms, you grant
us a security interest over the Goods and their proceeds (by virtue of the
retention of title in clause 3 above).
8.2 You undertake to do all acts and provide us on request all information
we require to register a financing statement or financing change
statement on the Personal Property Securities Register.
8.3 You:
(a) waive your right to receive a verification statement in respect of any
financing statement or financing change statement relating to the
security interest;
(b) waive your rights and, with our agreement, contract out of your
rights under sections 116, 120(2), 121, 125, 126, 127, 129 and 131
of the PPSA; and
(c) agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA
shall apply to these Terms and, with our agreement, contract out of
such sections.
8.4 Unless the context otherwise requires, the terms and expressions used
in this clause 8 have the meanings given to them in, or by virtue of, the
PPSA.
9 Privacy Act
9.1 You authorise us to collect and hold personal information from any
source we consider appropriate to be used for credit, administration,
service and marketing purposes. You further authorise us to disclose
personal information held by us for these purposes to any other person.
9.2 You understand that you have a right of access to, and may request
correction of, personal information held by us about you.
10 General terms
10.1 We may amend these Terms from time to time by notice to you in
writing.
10.2 No delay or failure by us to exercise our rights under these Terms
operates as a waiver of those rights. A partial exercise of those rights
does not prevent their further exercise in the future.
10.3 If a court decides that part of these Terms is unenforceable, the part
concerned shall be deleted from the rest of these Terms, which will then
continue in force.
10.4 These Terms will be interpreted in accordance with and governed by the
laws of New Zealand, and the New Zealand Courts will have non-
exclusive jurisdiction in respect of all matters between us.
10.5 Any Goods supplied by us to you shall be subject to these Terms unless
we agree in writing to change them. If you accept Goods from us, that
action by you will be deemed to be acceptance of these Terms, despite
anything that may be stated to the contrary in your enquiries or your
order.
11 Defined terms and interpretation
11.1 In these Terms, the following words have the following special
meanings:
CGA means the Consumer Guarantees Act 1993;
Goods means (i) all goods supplied by us to you at any time; and (ii),
except where the context otherwise requires, all services supplied by
us to you at any time, whether in conjunction with the supply of goods
or otherwise;
PPSA means the Personal Property Securities Act 1999;
Special Order means an order for Goods which we do not have in
stock at the time of your order and we obtain such Goods for the
purpose of fulfilling that order;
Terms means these terms of trade (as amended from time to time);
we, our, us means BC Direct 2022 Limited and any of its related
companies (as defined in the Companies Act 1993) from time to time;
and
you means any person who acquires Goods from us.
11.2 For convenience, these Terms have been grouped under different
headings, but the headings do not affect the meaning of these Terms.
11.3 In these Terms references to any law include any changes to that law
which are in force from time to time.