Industrial
Commercial
Residential
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Marina’s
Bracey Electrical Ltd © 2024
1. Definitions
Unless otherwise specified, the following definitions apply in these Terms:
Business Day means any day other than a Saturday, Sunday, public holiday in the location in which the Goods and/or Services are provided.
Confidential Information means information that:
is by its nature confidential;
is marked by a Party as ‘confidential’, ‘in confidence’, ‘restricted’ or ‘commercial in confidence’;
is provided by either Party, or a third party ‘in confidence’;
a Party knows or ought to know is confidential; or
is non-public, financial, business or sensitive information relating to a Party.
Contract means the contract formed in accordance with clause 1, comprising the Terms and the content of the particular Order.
Default Rate means 12% per annum.
Delivery means, in the case of Goods, the delivery of the Goods to the Delivery Location and/or the completion of the performance of the Services (in our reasonable opinion).
Delivery Location means the location or address for delivery as recorded in a Quote, an Order or as specified by you in writing.
Expenses means any actual and reasonable out-of-pocket costs incurred by us in connection with the performance of the Services, including mileage and travel.
Force Majeure Event means an event that is beyond the reasonable control of the Party immediately affected by the event, including but not limited to:
acts of God, lightning strikes, earthquakes, tsunamis, volcanic eruptions, floods, storms, explosions, fires, pandemics, epidemics and any natural disaster;
acts of government authority, whether lawful or unlawful;
acts of war (whether declared or not), invasion, actions of foreign enemies, military mobilisation, requisition or embargo;
acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage, rebellion, insurrection, revolution or military usurped power or civil war;
cyber warfare, cyberattacks or ransomware attacks; or
contamination by radioactivity from nuclear substances or germ warfare or any other such hazardous properties.
For the avoidance of doubt, a Force Majeure Event does not include any risk or event that the Party claiming could have prevented or overcome by taking reasonable care.
Goods means the goods, products or materials (including components of the same) specified in an Order to be supplied by us to you.
GST means goods and services tax payable pursuant to the Goods and Services Tax Act 1985, at the rate prevailing from time to time.
Guarantee means a guarantee in a form requested by us from time to time.
HSWA means the Health and Safety at Work Act 2015 and includes any other relevant health and safety laws, orders, regulations and standards.
Insolvency Event means, in relation to a Party, that Party:
becomes insolvent or otherwise cannot pay its debts as and when they fall due;
has a receiver, administrator or liquidator appointed in relation to all or a material part of its assets;
fails to comply with a statutory demand made in accordance with section 289 of the Companies Act 1993;
commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or enters into any composition or arrangement with its creditors generally.
Intellectual Property Rights means all intellectual property rights and interests (whether existing in statute, common law or in equity), including copyright, know-how, trade secrets, trademarks, trade names, domain names, designs, patents and other proprietary rights, recognised or protected by law.
Order means an order for Goods and/or Services placed by you from time to time.
Parties means us and you and Party means either one.
Personnel means all individuals engaged by or associated with either Party in relation to these Terms, including a Party’s directors, employees, subcontractors and agents.
PPSA means the Personal Property Securities Act 1999.
PPSR means the Personal Property Securities Register as established under section 139 of the PPSA.
Quote means a valid, written quote provided by us to you.
Rates means the rates payable by you to us for the provision of Goods and/or Services under a Contract.
Services means the services specified in a Quote or an Order, to be performed by us for you.
Specifications means any technical or other specifications relating to the Goods or Services attached to or referred to in a Quote or an Order.
Terms means these terms of trade as amended from time to time.
You and/or your means the person, firm, company or corporate entity that places an Order for Goods and/or Services from us, which is accepted by us and a Contract is formed, in accordance with these Terms.
We and us means Bracey Electrical Services (company number 1954431).
Unless otherwise specified, the following rules of interpretation apply in these Terms:
References to the Parties include their respective executors, administrators, successors and permitted assignees.
References to the words including, include or similar words do not imply any limitation and are deemed to have the words without limitation following them.
An obligation not to do anything includes an obligation not to suffer, permit or cause that thing to be done.
References to a statute or statutory provision means a New Zealand statute or statutory provision and shall include all statutes or statutory provisions amending, consolidating or replacing that statute or statutory provision referred to, and any regulations, codes, orders in council and other instruments issued or made under that statute or statutory provision.
References to written or in writing shall include all modes of presenting or reproducing words, figures and symbols in a visible form (including via email).
References to time and dates are to time and dates in New Zealand.
References to $ are references to New Zealand dollars.
Subject to clause 3, a Contract is formed when we accept an Order placed by you. We can accept an Order verbally, in writing or by Delivery of the Goods and/or commencement of performance of the Services. In addition to these Terms, a Contract includes the terms of each Order and any Specifications unique to an Order.
You will be deemed to have accepted these Terms by placing an Order as set out in clause 1 or by accepting the Goods and/or Services.
Despite any other provision in these Terms:
If the Parties have entered into a contract for the provision of the Goods and/or Services which has been subject to effective negotiation between the Parties (Negotiated Contract), the terms of that Negotiated Contract will apply and prevail over any other terms and conditions (including these Terms).
In the absence of a Negotiated Contract, these Terms will apply and will prevail over any other terms and conditions in existence, unless otherwise agreed between the Parties in writing.
We will not provide the Goods and/or Services on any other terms and conditions unless otherwise agreed in writing, including any of your terms.
We may, at our sole discretion, require you to provide a Guarantee. We reserve our right not to commence work on any Order unless and until the fully executed Guarantee has been provided by you to us.
4.1 You may place an Order with us via phone call, text message, email or otherwise, requesting the delivery of the Goods and/or performance of the Services.
4.2 When we receive an Order from you, we may request further information from you in respect of the Order (if necessary). You must provide reasonable information, support and direction to us in order to clarify an Order.
4.3 Once placed, you may not cancel an Order, other than with our prior written consent.
5. Title and Risk
We will retain title to the Goods and/or Services until all amounts owing to us (including under a Contract) have been paid in full by you.
Risk in and of any loss or damage to the Goods passes to you on Delivery and you bear the risk of damage to the Goods during installation carried out at your premises (except to the extent the damage has been caused by or contributed to by negligence).
6.1 You acknowledge and agree that:
(a) this Contract creates a security interest and, if applicable, a purchase money security interest (as those terms are defined in the PPSA) (Security Interest) in all Goods supplied by us to you as security for your obligations to us under a Contract;
(b) we are a secured party in relation to the Goods and are entitled to register our Security Interest;
(c) you must promptly sign any document and do anything else required by us to ensure our Security Interest in the Goods is perfected;
(d) if the Goods are processed, included or dealt with in any way causing them become accessions, processed or commingled Goods, our Security Interest will continue in the whole in which they are included;
(e) we may allocate all amounts received from you in any manner we determine, including any manner required to preserve any purchase money security interest in the Goods;
(f) you waive your right to receive a verification statement and any rights you may have under sections 114(a), 116, 120(2), 121, 125, 129, 131 and 133 of the PPSA; and
(g) you will give us prior written notice of any proposed change of your name or address.
6.2 You irrevocably authorise us at any time, to enter any premises upon which the Goods are stored to enable us to inspect the Goods and, if you have breached this Contract or suffer an Insolvency Event, to reclaim possession of the Goods. You agree to indemnify us against any liability to any person in connection with the entry or reclamation.
Delivery will be deemed to have taken place when:
in the case of Goods, we deliver the Goods to the Delivery Location; and
in the case of Services, the completion of the performance of the Services in our reasonable opinion.
We will use our reasonable endeavours to pack and protect the Goods against damage and deterioration (at your expense), but we will not be liable for any damage to the Goods which occurs during Delivery or transit.
If we provide an estimated delivery date, we will use our reasonable endeavours to meet that delivery date, however we will not be liable for any loss or damage suffered by you or any third party for failure to deliver the Goods and/or Services by that date.
Unless otherwise agreed in writing or recorded in a Quote, we will arrange Delivery.
8.1 You must inspect and accept or reject (as the case may be) the Goods and/or Services no later than five Business Days after Delivery.
8.2 You must immediately inform us of any:
(a) shortfall, damage or other issues relating to the Goods; and/or
(b) defects, faults or other issues relating to the Services,
(Issues). You must give us an opportunity to inspect the Issues within a reasonable time following receipt of notification.
8.3 If you fail to inform us of any Issues, you will be deemed to have accepted the Goods and/or Services as complying with an Order and we will have no liability to you. In all other cases, clause 16 will apply.
8.4 We will promptly rectify any Issue notified by you to us in accordance with clause 8.1, provided that we will not be liable for any Issue to the extent it arises as a result of:
(a) fair wear and tear;
(b) us complying with your Specifications, directions or instructions, including as set out in an Order or Quote;
(c) any alteration, modification or repair of the Services by any person other than us; or
(d) any wilful or negligent act or omission by you or any third party or any damage caused by you or any third party (other than our Personnel).
9.1 If a Contract includes the performance of Services, this clause 9 will apply in addition to the rest of the Terms.
9.2 We will perform the Services on the basis set out in our Quote and otherwise set out in the Contract.
9.3 Unless we agree otherwise in writing, you will, at your cost, obtain all licenses, consents, or approvals from the regional and/or territorial authority that may be required in relation to the Services.
9.4 If licenses, consents or approvals obtained by you are subject to conditions affecting the performance of the Services, you must notify us of those conditions. You will be responsible for any additional cost incurred by us which arise in complying with these conditions.
9.5 You will provide us with reasonable access to the property or site on which we are to perform the Services, to enable us to perform the Services.
9.6 You must inform us of any risks or hazards that we may encounter on the property or site while performing the Services.
9.7 We may engage subcontractors to assist us in performing the Services.
9.8 We will perform the Services at the location(s) and at the times and frequencies agreed by the Parties from time to time.
9.9 You must provide all reasonable support and direction that we require to perform the Services. We may, at any time, request instructions from you prior to undertaking any Services, and may defer undertaking such Services pending receipt of your instructions. You must promptly respond to any such request. Actions taken by us in accordance with your instructions shall constitute proper conduct within the scope of our authority under a Contract.
10.1 You may at any time request a reasonable amendment to the scope, nature, volume or execution of the Goods and/or Services (Variation). Such request must include sufficient information to enable us to assess the Variation, including as a minimum:
(a) a description of the Variation;
(b) details of the effect of the proposed Variation on the Services, our obligations and the Rates; and
(c) the proposed commencement date of the Variation.
10.2 We will use reasonable endeavours to accommodate any Variation requested by you as soon as reasonably practicable.
10.3 Unless you specify in your request that you wish to pre-approve the Rates payable for the Variation (in which case we shall not proceed until you have approved such Rates), you agree to pay the Rates payable for the varied Services as determined by us calculated in a manner consistent with the Rates payable for analogous Services or Goods.
In consideration of the provision of the Goods and/or performance of the Services, you will pay us the Rates and Expenses (if any). A rate card will be provided upon your request.
The Rates will be:
the Rate included in a Quote (if any); or
as noted on the invoice provided by us to you in respect of the Goods provided and/or Services performed.
We may require you to pay a deposit. Despite clause 1, you must pay any deposit immediately on receipt of our invoice, relating to the deposit. We reserve the right to not commence work on any Order unless and until the deposit has been received by us.
Where a Quote is given, the Parties agree that the quoted rate is conditional on:
your instructions being complete and accurate;
you providing any information or instruction we require, in a timely and efficient manner; and
no unforeseen circumstances arising.
Unless otherwise specified in writing or in a Quote, GST, delivery/freight, handling, packaging, insurance (if applicable) and any other costs directly related to the provision of the Goods and/or Services will be added to the Rates.
In addition to the Rates, you agree:
to reimburse us for the cost of procuring any Goods in connection with the provision of the Services plus any margin charged by us on such Goods;
to pay an allowance calculated at 1.5% of the invoiced Rates for general materials and consumables used by us in connection with the Services; and
to reimburse us for all Expenses.
12.1 Unless we require payment in part or in full in advance of providing any Services or Goods (which we may so require in our sole discretion), we will submit GST invoices to you on a monthly basis or on completion of the Services and provision of the relevant Goods and/or Services.
12.2 Invoices will be sent to you by us using the email address provided by you in writing. The email will contain a link which will enable you to download our invoice as a PDF. If you wish to receive PDFs as an attachment to our email (as opposed to a link), you must notify us in writing. We accept no liability for any security vulnerabilities, hacking or intercepting of invoices should you elect this method of receiving invoices.
12.3 You must pay each GST invoice in full and without setoff or deduction on or before the 20th day of the month following the invoice date. Payment will be made by direct credit to our nominated bank account.
12.4 If you do not pay any invoice by the due date, then (without prejudice to any of our other rights), we may:
(a) charge interest on the outstanding amount at the Default Rate (calculated daily) until payment is made in full;
(b) charge you any debt collection and legal costs on a solicitor-own client basis;
(c) suspend the supply of further Goods and/or Services to you under clause 14; or
(d) enter the premises at the Delivery Location and retake possession of the Goods.
We warrant to you that:
the Goods and/or Services will comply and conform with any Specifications included in a Quote, an Order or agreed between the Parties, will be fit for any purpose that you make known to us and will comply with all applicable legislation, regulations and codes of practice;
any Goods that are manufactured by Bracey will be appropriately packaged, packed and securely stored until Delivery to minimise the risk of damage, deterioration and theft (for the avoidance of doubt, Bracey does not provide this warranty in relation to Goods not manufactured by Bracey);
at the time of Delivery, the Goods will be free of any lien, encumbrance or security interest (as defined in the PPSA);
any Goods that are manufactured by Bracey will, for at least six months from the date of Delivery, be fit for the expected use and purpose and be free from any defect in design, materials, workmanship or title (for the avoidance of doubt, Bracey does not provide this warranty in relation to Goods not manufactured by Bracey);
to the extent permitted by law and subject to any third party terms we are bound by, we will use reasonable endeavours to give you the benefit, at your cost, of any third party warranties we receive in relation to Goods not manufactured by us;
we own or are licensed all Intellectual Property Rights relating to the Goods and/or Services required for the Goods and/or Services to be provided to you and neither the Goods and/or Services, nor the provision or use of the Goods and/or Services by you will breach any Intellectual Property Rights;
the Services will be carried out with reasonable care, diligence and skill and performed by persons with the requisite skill and experience to the appropriate professional standard or in accordance with good industry practice as would be expected from a leading supplier in the relevant industry; and
if the nature of the Services requires it, we will deliver the Services in a manner that is culturally appropriate and that respects the personal privacy and dignity of all participants and stakeholders.
We may suspend the supply of Goods and/or Services to you if:
you fail to pay any invoice when due;
any credit limit we have agreed to grant to you is or is likely to be exceeded;
we have any concerns about your creditworthiness; or
we otherwise determine that it is necessary to suspend the supply of Goods and/or Services.
Any costs incurred by us as a result of a suspension pursuant to clause 1 will be immediately due and owing by you to us.
A Contract may be terminated immediately by either Party giving written notice to the other as a result of:
you breach a material obligation imposed on you under the Contract and the breach is not capable of being remedied, or the breach is capable of being remedied and you fail to remedy the breach to our satisfaction within 10 Business Days of receiving notice requiring such breach to be remedied;
you suffer an Insolvency Event; or
a Force Majeure Event continues for more than 20 consecutive Business Days.
We may, without cause, terminate any Contract by giving you 10 Business Days written notice. In the event that we exercise our rights pursuant to this clause 4, the Contract will terminate and any outstanding Orders at the end of the period of notice will be deemed cancelled other than in a case of termination pursuant to clause 14.3, where any outstanding Orders will terminate immediately.
Upon termination of a Contract (for whatever reason) you shall, within 20 Business Days of the date of termination, pay us all sums due and owing under all Contracts. Termination of the Contract will not affect any accrued rights or obligations of either Party.
The Parties agree that the provisions of clauses 5 and 13 to 23 survive termination or expiry of the Contract.
We will not be liable to you for any failure to perform our obligations under the Contract to the extent the failure is due to a Force Majeure Event.
If we wish to claim suspension of our obligations due to a Force Majeure Event, we will notify you as soon as reasonably practicable. The notice will state:
the nature of the circumstances giving rise to the Force Majeure Event;
the extent of our inability to perform under the Contract;
the likely duration of that non-performance; and
details of what steps are being taken to minimise the impact of the Force Majeure Event on the performance of the Contract.
To the fullest extent permitted by law, our total aggregate liability under a Contract, whether arising in contract, tort (including negligence) or otherwise, is limited to either the:
repair or replacement of the Goods or the reperformance of the Services; or
the total Rates of the relevant Goods and/or Services paid to us by you in the 12 month period immediately prior to the liability arising,
at our election.
If we are held liable to you or any other person for any reason, our total aggregate liability under a Contract whether arising in contract, tort (including negligence) or otherwise, is limited to the aggregate sum of $30,000.00.
Despite anything else in these Terms, neither Party will be liable whether arising in contract, tort (including negligence), breach of statutory duty or otherwise, for any loss of profits or any indirect, consequential, or special loss or damage or for any business interruption, whether that loss or damage was, or ought to have been, contemplated by the other Party, arising out of these Terms.
17.1 The Parties must use reasonable endeavours to resolve any and all disputes arising under or relating to a Contract by negotiation. If a dispute is settled at or following negotiations under this clause 17, such settlement shall be recorded in writing and be signed by the Parties, whereupon it shall be final and binding on the Parties.
17.2 Nothing in this clause 17 will prevent either Party from seeking urgent interim relief from the courts:
(a) for interlocutory relief;
(b) to recover a debt payable; or
(c) to enforce a settlement agreed to by the Parties.
18.1 The Parties agree and acknowledge that the Consumer Guarantees Act 1993 (CGA), the Fair Trading Act 1986 (FTA), and other statutes may impose warranties, conditions or obligations on us which cannot by law (or which can only to a limited extent by law) be excluded.
18.2 Other than as expressly provided for in these Terms, we exclude all such imposed warranties, conditions or obligations to the extent permitted by law and excludes any warranty, condition or obligation imposed or implied under common law, equity or otherwise.
18.3 Where you are acquiring the Goods and/or Services for the purposes of a business the Parties acknowledge and agree that:
(a) you are acquiring the Goods and/or Services for the purposes of a business pursuant to sections 2 and 43(2) of the CGA and accordingly the CGA will not apply;
(b) the Services are both supplied and acquired in trade for the purposes of the FTA and the Parties agree to contract out of sections 9 (misleading and deceptive conduct generally), 12A (unsubstantiated representations), and 13 (false or misleading representations); and
(c) all warranties, conditions, and other terms implied by the CGA or sections 9, 12A, and 13 of the FTA are excluded from the Contract to the fullest extent permitted by law and the Parties further acknowledge and agree that it is fair and reasonable that the Parties are bound by this clause 18.
Each Party confirms that it has adequate security measures to safeguard the other Party’s Confidential Information from unauthorised access, or use by third parties, and that it will not use or disclose the other Party’s Confidential Information to any person or organisation other than:
if the Contract authorises disclosure of the Confidential Information;
to the extent necessary to deliver the Services;
if the other Party gives prior written approval to the use or disclosure;
if the use or disclosure is required by law; or
in relation to disclosure, if the information has already become public, other than through a breach of the obligation of confidentiality by one of the Parties.
Each Party will ensure that its Personnel who are involved with delivery of the Services:
are aware of the confidentiality obligations in these Terms; and
do not use or disclose any of the other Party’s Confidential Information except as allowed by a Contract.
You consent to our collection, use and disclosure of your personal information for purposes in connection with the provision of the Goods and/or Services including, but not limited to, carrying out credit checks on you with a credit reporting agency. We will comply with our obligations under the Privacy Act 2020 in respect of its collection, use and disclosure of your personal information.
20.1 The Parties will:
(a) each ensure they comply with their respective obligations under the HSWA; and
(b) consult, cooperate and coordinate as far as reasonably practicable with each other and any other person who has health and safety obligations in connection with their obligations under the HSWA.
20.2 We will ensure our Personnel who perform the Services are properly trained in health and safety and safe working methods.
20.3 We will also comply with any site specific health and safety plan agreed between the Parties in writing for the Services, together with all of your health and safety policies which are previously notified to us in writing.
All Intellectual Property Rights owned by either Party and existing immediately prior to the point on which the Contract was formed will remain the exclusive property of that
You agree that all new Intellectual Property Rights that arise or are created by us or any of our Personnel in the course of supplying the Goods and/or Services (New Intellectual Property Rights) will be owned by us.
You grant us a non-exclusive, non-transferable, revocable, royalty-free licence to use your Intellectual Property Rights, if required by us in order to deliver the Goods and/or the Services under a Contract.
We grant you a non-exclusive, non-transferable, revocable, royalty-free licence to use any New Intellectual Property Rights to the extent required for you to enjoy the benefit of the Goods and/or Services provided by us under a Contract.
All notices and other communications to be given under a Contract must be in writing in English and be addressed to the Party to whom it is to be sent at the physical address or email address from time to time designated by that Party in writing to the other Party.
Any notice or communication given under a Contract shall be deemed to have been received:
at the time of delivery, if delivered by hand;
three Business Days after the date of mailing, if sent by ordinary post within New Zealand; or
if sent by email, on the date and time at which it enters the recipient’s information system, as evidenced (if required by the recipient, where delivery is disputed) in a confirmation of delivery report from the sender’s information system which indicates that the email was sent to the email address of the recipient.
Any notice or communication received or deemed received after 5.00pm or on a day which is not a Business Day in the place to which it is delivered, posted or sent will be deemed not to have been received until the next Business Day in that place.
A Contract or, if clause 3(a) applies, the terms of the Negotiated Contract, comprise the entire agreement of the Parties in relation to the supply of Goods and/or Services and supersedes any previous discussions, arrangements and representations between the Parties.
Nothing in the Contract should be interpreted as constituting either us or you, as an agent, partner or employee of the other and neither Party will have the authority to act for or to incur any obligation on behalf of the other Party except as expressly provided for in the Contract.
We will not be deemed to have waived any right under these terms unless the waiver is in writing and signed by us. A failure by us to exercise a right, including a delay in exercising any right, will not operate as a waiver of that right. Any such waiver will not constitute a waiver of any subsequent or continuing right or of any other provision of these Terms.
You may not assign, subcontract or otherwise transfer any of your rights, benefits or obligations under the Contract without our prior written consent. A change in the management or control of your entity or the sale of a major part of your business or assets will be deemed to be an assignment for the purposes of this clause 4.
23.5 Each Party agrees that it will, at all times, comply with all laws, regulations and orders in carrying out its obligations under a Contract.
23.6 Each Party warrants and represents to the other Party that:
(a) it has full power and authority to agree to enter into and bind itself to a Contract;
(b) all consents, authorisations and approvals that are necessary or required for that Party in connection with a Contract, and the assumption of rights and obligations under them, have been obtained or effected; and
(c) the agreement to and performance pursuant to a Contract does not constitute a breach of any law or obligation by which that Party is bound and which would prevent it from agreeing to or performing its obligations under a Contract.
23.7 If any provision of the Contract is found by a court or other competent authority to be void or unenforceable, such provision will be deemed to be deleted from the Contract and the remaining provisions of the Contract will continue in full force and effect.
23.8 We may amend a Contract or these Terms from time to time by giving notice to you in writing. Any amendment to a Contract or these Terms will apply to any subsequent Order or Contract (as the case may be) after we notify you of the amendment. A Contract or these Terms may otherwise be amended or varied in writing and signed by each Party.
23.9 The Contract, and any claims arising out of or in connection with it or its subject matter or formation (including non-contractual claims), will be governed by and construed in accordance with the laws of New Zealand and the Parties irrevocably submit to the exclusive jurisdiction of the courts of New Zealand for any matter arising under or relating to the Contract or its subject matter or formation or the relationships established by it (including non-contractual claims).
Industrial
Commercial
Residential
Billboards
Marina’s
Bracey Electrical Ltd © 2024