1 Agreement and Price
1.1 BDB agrees to sell and the Customer agrees to buy BDB’s goods and services (“Supplies”) selected at the price specified and provided in the invoice to the Customer by BDB (“Price”).
1.2 The Customer agrees that all Prices are:
(a) plus GST, other taxes and duties; and
(b) plus any insurance, freight, delivery and handling charges.
2 Payment
2.1 Unless otherwise specified in writing by an authorised officer of BDB payment will be due and payable without deduction or set-off by the Customer to BDB on the 20th of the month following the date of invoice or the first business day after such date.
2.2 The time for payment within which the Customer is to pay for the Supplies will be an essential term of this Agreement.
3 Interest and costs on overdue accounts
3.1 If the Customer fails to pay monies by the due date, BDB may (at BDB's sole discretion):
(a) charge interest on all overdue accounts at a rate of 2.0% per month, calculated on a daily basis until it is all received in full by BDB but without prejudice to all or any of BDB's rights and remedies under this Agreement. Any payments received by BDB will be applied firstly against such interest;
(b) suspend delivery of further Supplies or performance of further work until the account is paid;
(c) seek reimbursement from the Customer for any legal costs (as between solicitor and client), any debt collection fees and any other costs incurred in the recovery of an overdue debt; and
(d) exercise any other remedy available to it
4 Delivery
4.1 Delivery of the Supplies will be made to the address and in the manner as previously agreed by the parties.
4.2 If any time for delivery is stated in the order such time will be approximate only and will not be deemed to be an essential term of the Agreement.
4.3 If the Customer refuses to accept delivery of the Supplies, the Customer is responsible for any additional costs incurred by BDB as a result.
5 Risk and ownership
5.1 On delivery of the Supplies to the Customer by BDB the Customer will take responsibility from the moment of delivery and will carry the full risk of liability with no recourse to BDB.
5.2 BDB retains ownership of the Supplies until the Customer has paid the full Price for the Supplies and all other monies owing by the Customer to BDB.
5.3 The Customer acknowledges that it is in possession of the Supplies solely as bailee for BDB until full payment for the Supplies and all monies owing to BDB by the Customer has been made. The Customer will hold any proceeds of sale of the Supplies not yet paid for in trust for BDB.
5.4 The Customer will store the Supplies in such a way that it is clear that it is the property of BDB.
5.5 The Customer agrees that BDB, its agents and servants (without the need to give notice) may enter and are authorised where necessary, to break into the premises where the Customer is or may be storing the Supplies for the purpose of BDB inspecting and/or removing such Supplies.
6 Personal Property Securities Act 1999
6.1 Notwithstanding clause 5, the parties acknowledge that the Customer grants BDB a security interest (as that term is defined in the Personal Property Securities Act 1999) over all Supplies presently or in the future supplied or delivered to the Customer by BDB.
6.2 The Customer agrees to:
(a) if required by BDB, co-operate in good faith with BDB to execute all documentation required to register a security interest in favour of BDB on the Personal Property Securities Register and protect BDB's interest in the Supplies;
(b) execute any documents required to execute any new, replacement or additional security interest; and
(c) waive any right to:
(i) receive a copy of the verification statement, pursuant to s148 of the Personal Property Securities Act 1999; and
(ii) reinstate this Agreement, pursuant to s133 of the Personal Property Securities Act 1999.
7 Exclusion of Consumer Guarantees Act 1993 and any statutory or common law implied terms
7.1 If the Customer acquires the Supplies for a business purpose the Customer agrees that the statutory guarantees and implied terms, covenants and conditions contained in the Consumer Guarantees Act 1993 are excluded and do not apply.
7.2 To the extent permitted by law and where they are inconsistent with these terms, the provisions of the New Zealand Sale of Goods Act 1908 are excluded.
8 Limitation or exclusion of liability
8.1 To the extent permitted by law, BDB will be under no liability whatsoever to the Customer for any indirect, special, incidental, consequential or exemplary damages or losses suffered by the Customer arising out of these terms and whether actionable in contract, tort (including negligence), equity or otherwise.
8.2 In the event that BDB is found liable, BDB's liability will not exceed the retail cost of the Supplies.
9 Indemnity
9.1 The Customer indemnifies BDB against any legal proceedings and any costs involved, where through any acts or omissions of the Customer in using the Supplies provided by BDB, BDB becomes liable or where BDB suffers any loss due to any breach of the terms and conditions of this Agreement by the Customer.
11 Use of information
11.1 The Customer agrees that BDB may obtain information about the Customer and its financial and business affairs from the Customer or any other person in the course of BDB's business, including for credit assessment, debt collection and direct marketing activities, and the Customer consents to any person providing BDB with such information.
11.2 The Customer agrees that BDB may use the information it has about the Customer relating to the Customer’s credit worthiness for its own reference purposes.
11.3 The Customer must notify BDB of any change in circumstances that may alter the information provided by the Customer to BDB.
11.4 If the Customer is an individual the Customer has rights under the Privacy Act 1993 to access information held by BDB on that individual and request the correction of such personal information.
12 Force majeure
12.1 BDB will not be liable for delay or failure in the performance of any of the obligations imposed by this Agreement, provided that such failure will be occasioned beyond the reasonable control and without the fault or negligence of BDB.
13 Individual liability and guarantees
13.1 Where the Customer comprises more than one person carrying on business in partnership, each and every individual partner will be jointly and severally liable to BDB in respect of all or any indebtedness or liability of the Customer arising out of this Agreement.
13.2 Where the Customer is a limited liability company or other corporation, each of the directors thereof will, on demand, and in writing interpose and bind themselves as sureties and co-principal debtors with the Customer, jointly and severally, for the due and principal payment of all monies and performance of all obligations due by the Customer arising out of this Agreement and will sign this Agreement accordingly.
14 Miscellaneous
14.1 Assignability: The Customer will not assign or otherwise transfer or encumber its rights or obligations under this Agreement except with the prior written consent of BDB.
14.2 Entire Agreement: This Agreement constitutes the sole understanding of the parties and supersedes all prior understandings, written or oral, which will be of no further force or effect.
14.3 Terms and conditions: No alteration or variation of this Agreement will be binding on BDB unless authorised by BDB in writing.
14.3 Waiver: No waiver of any provision of this Agreement will serve as a waiver of any other provision of this Agreement nor as a continuing waiver of such provision and BDB will not have waived or deemed to have waived any provision of this Agreement unless such waiver is in writing and executed by BDB.
14.4 Survivorship: Termination of this Agreement for any reason will not affect such rights and obligations of the parties as are intended to survive the termination.
14.5 Counterparts: This Agreement may be executed in counterparts (which may be facsimile copies) and all of which, when taken together constitute the one document.
14.6 Severability: Should any part or provision of this Agreement be held unenforceable or in conflict with any applicable laws or regulations, the invalid or unenforceable part or provision will be replaced with a provision which accomplishes, to such extent as possible, the original business purpose of the part or provision in a valid and enforceable manner, and the remainder of the Agreement will remain binding on the parties.
14.7 No partnership, agency or joint venture: This Agreement does not create any relationship of partnership, joint venture or agency between the Customer and BDB.
