Terms & Conditions

1. INTRODUCTION

• These terms and conditions apply to all goods sold or supplied by BRUCE EDWARDS UPHOLSTERY LIMITED or any subsidiary of it (“BEU”) to the purchaser or recipient of such goods (“the Customer”) unless the Company has agreed to vary them at the time of order.
• These terms and conditions constitute the entire agreement between the parties and prevail over all other communications between the parties be they oral, written, previous or contemporaneous unless otherwise expressly agreed in writing and signed by or on behalf of BEU.
• The terms and conditions outlined in this agreement will continue in effect unless otherwise amended by giving seven days notice in writing to the Customer, after which such changes will become legally incorporated.

2. QUOTATION

2.1       All quotations remain valid for 30 days from the date of the quotation unless otherwise specified and are subject to confirmation at the time of receipt.  Acceptance, in writing, howsoever delivered is deemed to constitute acceptance of these terms and conditions.

• Quotations cost from sketches, plans or specifications provided by the Customer are subject to the accuracy of the information provided. BEU will not be held liable for inaccuracies of quantities, measurements, dimensions, misstatement or material used exceeding the quotation.
• Any extra work beyond that specified shall constitute variations and is subject to a Variation Order. In the even of a price not being agreed upon for extra variations prior to execution, the same shall be to the Customer at the normal rates in force by BEU at the time of performance of supply.

3. DEPOSIT

3.1       BEU may require a deposit of up to 50% of the Contract Price to be paid by the Customer prior to commencement, with further progress payments as required.

4. PRICE AND PAYMENT

4.1       The price of the goods shall be that prevailing to the date of quotation but are subject to variations, extras, deletions, increase or decrease in material costs, supply, production, delivery and applicable taxes incurred arising between the date of quotation and the date of installation.

• All prices are current at the time of printing but are subject to alteration without notice. Any variation in price, including currency fluctuations, will be to the Customer’s account and the contract price will be adjusted according to the amount of the variation.
• Prices quoted are based on performances of work during normal working hours. On request to work overtime or additional shifts, the net increase in costs based on excess rates and working hours shall be to the Customer’s account.
• Payment from the Customer shall be made, without deduction, for repair, parts or goods on delivery. Unless otherwise advised, payment is due 7 days from the date of invoice by Cash, Cheque or Electronic Funds Transfer into BEU’s bank account.
• Progress claims for payment may be made by BEU from time to time for the value of all work completed up to the end of each month and a final claim shall be made for the balance due under the contract upon completion of the work.
• All prices quoted exclude Goods and Services Tax.
• If full payment is not made by the due date, then:

(i)         The Customer shall pay default penalty at a rate of 2% per month calculated on a daily basis until payment is received in full, payable on demand.

• BEU may limit, suspend and/or cancel further work at any time while any overdue amount owing remains unpaid.
• BEU reserves the right to recover any prior discount given upon payment default together with all costs of collection and expenses, including legal fees on a solicitor and own client basis BEU may incur in recovering from the customer any overdue account.

5. DELIVERY

5.1       Delivery will be charged for at the rate determined at the time of placing the order.

5,2       The Customer is deemed to have inspected the goods upon accepting delivery.

• The goods shall be deemed to be delivered upon the goods being presented by BEU kerbside or at the place agreed as the delivery address or from the time BEU gives possession of the goods to a carrier arranged by the Customer.
• Risk of any loss, shortage, damage, theft, insurance or deterioration to the goods shall be borne by the Customer from the time of delivery of the goods.

6. RETURNS

6.1       Faulty or wrongly supplied goods must be returned within seven days of the date of delivery, for replacement, repair or credit, stating invoice number.
6.2       In addition to the Customer’s rights in respect of defective or non-conforming goods, the Customer may return goods comprising goods or components where:

• BEU has consented in advance;
• The goods are, in the opinion of BEU, in good saleable condition;
• The goods remain in BEU’s original undamaged packaging;
• The goods are standard product of BEU and not specially ordered, manufactured or imported from overseas.

6.3       All items correctly supplied as ordered returned for credit may, at the discretion of BEU, be subject to a 15% handling charge to cover administration costs plus freight, tolls, etc.  The Customer will be responsible for the costs of returning the goods to BEU or from such depot as they were originally obtained.

7. RETENTION OF TITLE

7.1       Legal and beneficial ownership of any and all gods supplied from time to time shall remain with BEU until such time as all accounts have been paid in full.7.2       Until title to, and property in, the goods passes to the Customer, the Customer shall be bailee only in respect of the Goods, The Customer shall store the goods as property of BEU and shall not relinquish possession or remove the goods from the Customers premises.7.3       BEU may, without prejudice to any other right or remedy, suspend or terminate the contract and all other monies payable by the Customer to BEU, shall immediately become due and payable if the Customer:(i)         Fails to pay or is unable to pay its debts as they fall due; or (ii)        Breaches any term of these Terms and Conditions; or (iii)       Commits any act of bankruptcy, enters into any composition or arrangement with creditors, commences to be wound up, has a receiver or statutory manager appointed, is insolvent or is in any adverse financial status in respect of any or all of its assets.7.4       In consideration of supply the Customer hereby grants a Registered Security Interest and charges the goods as Secured Indebtedness in favour of BEU as a first charge.7.5       For the purposes of Section 80A(2) of the Property Law Act 1952, the maximum amount up to which the Secured Indebtedness ranks in priority to any subsequent security.

• In favour of the Secured Indebtedness, after a period of two months under section 3 of the Wages, Protection and Contractors’ Act 1987, BEU may sell the goods by auction.
• Where the goods are incorporated with or fixed to any property owned by the Customer or other third party, such incorporation shall be deemed owned in common by the Customer and BEU on a pro-rata basis to be calculated by reference to the cost to the Customer of the incorporated materials. Accordingly this contract shall create an equitable interest entitling BEU to protect such interest by way of any legal mechanism including security agreement.
• The Customer irrevocably authorises BEU without prejudice to any of its other rights, unimpeded access to enter upon any premises where the goods may be located if any time, in BEU’s opinion, payment for the goods is unlikely to be made or, if an event of default occurs, in order to retake possession without liability arising from any act of trespass. Any diminution in value shall be payable by the Customer following subsequent sale.

8. GUARANTEE

8.1       In the event the Customer is a company, the signatory personally guarantees payment owing and acknowledges that no indulgence, granting of time, waiver or forbearance to sue, winding-up or bankruptcy (whereby the Guarantor would be released as a surety) in any way releases the Guarantor from liability hereunder.

9. COPYRIGHT

9.1       The Customer shall have no right or title to sketches, specifications, images, samples, literature, promotional material or other information provided by BEU.  Such information be it transmitted either orally or in writing, will be considered confidential intellectual property of BEU and the Customer shall not copy, store in or on any medium or otherwise deal with in a manner prejudicial to BEU’s rights.

10. LIABILITY

10.1     The provisions of the Consumer Guarantees Act 1993 shall NOT apply to the supply of goods and/or services by BEU to the Customer who acquires, or holds himself or herself out as acquiring the goods or services for the purpose of a business.  Nothing in these terms is intended to have the effect of contracting out of the provisions of the Consumer Guarantees Act 1993 except to the extent permitted by the Act. 

• BEU takes no liability for any costs, damage or loss, including consequential, proceedings, claim or demand caused from the provision of any services, recommendations, acts or omissions of BEU, or its agents or servants, including implied warrants of merchantability/fitness for purposes, howsoever arising pursuant to these terms and conditions.
• The total liability of BEU in contract, tort or otherwise arising from any defect, breach or negligence under this contract howsoever arising is expressly limited to the contract price.

11. WARRANTY

11.1     No warranty expressed or implied is given in connection with these services, or extended to materials, measurements or specifications supplied by the Customer.  BEU will repair or replace, at its option, any defective materials or workmanship attributable to BEU if reported in writing within seven (7) days giving reasonable particulars of the event giving rise to such claim, alleged damage or loss.11.2     Where the goods are subject to an express manufacturers warranty the terms of such shall be deemed to be incorporated herein without creating any privity of contract between the Customer and such manufacturer to BEU.  Judgment of claim under such warranty shall be final and binding upon BEU and the Customer.

12. EXCLUSIONS

12.1     The warrants referred to above shall not apply where the damage, injury or loss arises when:(i)         Service is required as a result of incorrect assembly, misuse, operator error, use of improper supplies or unauthorised persons.(ii)        The goods or machinery is interfered with, modified, disabled, misapplied, subjected to unusual or non-recommended use or adjusted by a third party.

13. FORCE MAJEURE

13.1     BEU shall not be liable for failure or delay to perform any term of this contract, occasioned directly or indirectly by any act of God, labour dispute, difficulty in procuring materials, accidents, legislative restrictions or other causes whatsoever (whether similar or not to the foregoing) beyond BEU’s reasonable control.

14. JURISDICTION

14.1     This agreement shall be construed under New Zealand Law and will be subject to exclusive jurisdiction of the New Zealand Courts herewith.

15. DISPUTES

15.1     In the event of any dispute, the undisputed portion of the account shall be payable forthwith without any deduction by way of set-off, counterclaim, or other legal or equitable claim without the prior written consent of BEU. 

• Unresolved disputes by discussion or alternative medium shall be referred to an arbitrator in accordance with and subject to the provisions of the Arbitration Act 1908 and its amendments or statutory modifications. Before arbitration the arbitrating party is to:

(i)         Supply and deliver to the other party specific matters of issue and detailed particulars of dispute, such list being binding and final as to the matters to be put to arbitration; and (ii)        Continue to perform their respective obligations and duties under this contract, despite any matter referred to negotiation, mediation or arbitration.

16. PERSONAL PROPERTY SECURITIES ACT 1999

16.1     The Customer acknowledges that BEU holds a “Security Interest” in the goods and any proceeds of the sale of the goods and that BEU may register a financing statement in respect of the goods and any sale proceeds in accordance with the provisions of the Act.  The Customer further waives its rights to receive a verification statement in respect of any financing statement or financing charge statement registered by BEU.

17. PRIVACY ACT 1993 & PRIVACY CODE 2004

17.1     The Customer agrees that any information may be used by BEU for any purpose connected with its business including (but not limited to) credit assessment, debt collection or direct marketing activities.  The Customer further authorises BEU to furnish to any third party details of any application and any subsequent dealings as a result or any application being actioned by BEU or by way of payment default.

18. CANCELLATION

18.1     If the Customer wishes to cancel its order and BEU accepts such cancellation, the Customer shall be liable to pay BEU upon demand the value of all work done, and materials used to the date of cancellation.

19. NO ASSIGNMENT

19.1     The Customer may not assign, sub-let or transfer any rights, burdens or obligations implied in this agreement.  The rights and obligations of BEU hereunder shall inure to the benefit or shall be binding upon and may be enforced by the successors and assigns of BEU.

20. SEVERABILITY

20.1     If any part, term or provision of these terms and conditions is found to be unenforceable or rendered to be ineffective by virtue of non-registration, illegality or otherwise, then such provision shall be severed without affecting the validity or enforceability of the rest of the agreement.

21. NOTICES

21.1     All notices pursuant to this agreement will be deemed validly given.