- “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.
- “BBIL” means Big Brown Industries Limited, its successors and assigns or any person acting on behalf of and with the authority of Big Brown Industries Limited.
“Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting BBIL to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
- if there is more than one Customer, is a reference to each Customer jointly and severally; and
- if the Customer is a partnership, it shall bind each partner jointly and severally; and
- if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
- includes the Customer’s executors, administrators, successors and permitted assigns.
- “Goods” means all Goods or Services supplied by BBIL to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
- “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.
- “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 Customer does not wish to allow Cookies to operate in the background when ordering from the website, then the Customer 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.
- “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Goods as agreed between BBIL and the Customer in accordance with clause 5 below.
- The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts Delivery of the Goods.
- 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.
- Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
The Customer acknowledges and accepts that:
- the supply of Goods on credit shall not take effect until the Customer has completed a credit application with BBIL and it has been approved with a credit limit established for the account; and
- in the event that the supply of Goods request exceeds the Customer’s credit limit and/or the account exceeds the payment terms, BBIL reserves the right to refuse Delivery; and
- the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, BBIL reserves the right to vary the Price with alternative Goods as per clause 5.2, subject to prior confirmation and agreement of both parties. BBIL also reserves the right to halt all Services until such time as BBIL and the Customer agree to such changes. BBIL shall not be liable to the Customer for any loss or damage the Customer suffers due to BBIL exercising its rights under this clause.
- When quotations are based on specifications, roughs, layouts, samples or dummies or printed, typewritten or other good copy, any extra work or cost caused by any variation by the Customer of the original instructions or by the manuscript copy being, in BBILs opinion, poorly prepared or by the Customer’s requirements being different from those originally submitted or described may be charged to the Customer and shown as extras on the invoice.
- Once accepted by the Customer, BBIL’s written quotation shall be deemed to interpret correctly the Customer’s instructions, whether written or verbal. Where verbal instructions only are received from the Customer, BBIL shall not be responsible for errors or omissions due to oversight or misinterpretation of those instructions.
- None of BBIL’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of BBIL in writing nor is BBIL bound by any such unauthorised statements.
- 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.
Change in Control
- The Customer shall give BBIL not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address and contact phone or fax number/s, change of trustees or business practice). The Customer shall be liable for any loss incurred by BBIL as a result of the Customer’s failure to comply with this clause.
Price and Payment
At BBIL’s sole discretion the Price shall be either:
- as indicated on any invoice provided by BBIL to the Customer; or
- the Price as at the date of Delivery of the Goods according to BBIL’s current price list; or
- BBIL’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
BBIL reserves the right to change the Price:
- if a variation to the Goods which are to be supplied is requested; or
- if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
- if during the course of the Services, the Goods are not or cease to be available from BBIL’ third party suppliers, then BBIL reserves the right to provide alternative Goods; or
- where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, obscured site defects which require remedial work, safety consideration, availability of machinery, etc) which are only discovered on commencement of the Services; or
- in the event of increases to BBIL in the cost of labour or materials (including, but not limited to, any variation as a result of fluctuations in currency exchange rates or increases to BBIL in the cost of taxes, levies, freight and insurance charges, etc.) which are beyond BBIL’ control.
- Variations will be charged for on the basis of BBIL’s quotation, and will be detailed in writing, and shown as variations on BBIL’s invoice. The Customer shall be required to respond to any variation submitted by BBIL within ten (10) working days. Failure to do so will entitle BBIL 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.
- At BBIL’s sole discretion a deposit may be required.
Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by BBIL, which may be:
- by way of instalments/progress payments in accordance with BBIL’s payment schedule;
- for certain approved Customers, due twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
- the date specified on any invoice or other form as being the date for payment; or
- failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by BBIL.
- 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 Customer and BBIL.
- BBIL may in its discretion allocate any payment received from the Customer towards any invoice that BBIL determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer BBIL may re-allocate any payments previously received and allocated. In the absence of any payment allocation by BBIL, payment will be deemed to be allocated in such manner as preserves the maximum value of BBIL’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
- The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by BBIL nor to withhold payment of any invoice because part of that invoice is in dispute.
- Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to BBIL an amount equal to any GST BBIL must pay for any supply by BBIL under this or any other contract for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer 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.
- At BBIL’s sole discretion the Price shall be either:
Delivery of Goods
Delivery (“Delivery”) of the Goods is taken to occur at the time that:
- the Customer or the Customer’s nominated carrier takes possession of the Goods at BBIL’s address; or
- BBIL (or BBIL’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
- At BBIL’s sole discretion the cost of Delivery is either included in the Price or is in addition to the Price.
- BBIL may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
- Any time specified by BBIL for Delivery of the Goods is an estimate only and BBIL will not be liable for any loss or damage incurred by the Customer as a result of Delivery being late. However both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that BBIL is unable to supply the Goods as agreed solely due to any action or inaction of the Customer, then BBIL shall be entitled to charge a reasonable fee for redelivery and/or storage.
- Delivery (“Delivery”) of the Goods is taken to occur at the time that:
- Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
- If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, BBIL is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by BBIL is sufficient evidence of BBIL’s rights to receive the insurance proceeds without the need for any person dealing with BBIL to make further enquiries.
- If the Customer requests BBIL to leave Goods outside BBIL’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
- Where BBIL is required to install the Goods, the Customer warrants that the structure of the premises or framing upon which these Goods are to be installed is sound and will sustain the installation and work incidental thereto, and that the Customer must advise BBIL of the precise location of all wiring or plumbing that may be hidden behind any surface at the installation site and clearly mark the same. BBIL shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises or framing be unable to accommodate the installation or for any damage to hidden wiring or pipes (whether or not the Customer is aware of their exact location).
- Any tabulated work and/or foreign language included in the job but not contained in the manuscript originally submitted for the purpose of estimating may be charged to the Customer and shown as extras on the invoice.
- Unless otherwise agreed, the Customer shall bear the cost of fonts, or colour proofs, or artwork, specially bought at its request for the Services.
- BBIL shall be under no liability whatever to the Customer for any variation (beyond the reasonable control of BBIL) in colours between the approved prototype and the finished Goods.
- Where the performance of any contract with the Customer requires BBIL to obtain Goods or Services from a third party, the Contract between BBIL and the Customer shall incorporate and shall be subject to the conditions of supply of such Goods and Services to BBIL, and the Customer shall be liable for the cost in full including BBIL’s margin of such Goods or Services.
- BBIL is under no obligation to provide samples of Goods ordered other than by virtual (computerised) sample. Whilst every effort will be taken by BBIL to match virtual colours with physical colours, BBIL will take no responsibility for any variation between virtual sale samples and either the virtual sale sample displayed on the Customer’s computer and/or the final product.
- While every effort will be taken by BBIL to match PMS colours, BBIL will take no responsibility for any variation due to substrates, half tones and/or detailed graphics between sale samples (including but not limited to virtual or physical samples) and the final product.
- BBIL shall not be held liable for inks wearing off through general wear and tear.
- Where materials or equipment are supplied by the Customer for the provision of Services BBIL shall accept no liability for imperfect work caused by defects in, or the unsuitability of, such materials or equipment for the Services.
- In the case of property and materials left with BBIL without specific instructions, BBIL shall be free to dispose of them at the end of three (3) months after receiving them and to accept and retain any proceeds gained from such disposal to cover BBIL’s costs in holding and handling such items.
- Any change or correction to any film, bromides, artwork and/or any printing surface supplied by the Customer which is deemed necessary by BBIL to ensure correctly finished work shall be invoiced as an extra.
- In the event that the Customer believes that BBIL has scratched the vehicle during the installation/application process of the Goods, the Customer shall within twenty-four (24) hours of delivery (time being of the essence) notify BBIL of any alleged defect or damage. The Customer shall afford BBIL an opportunity to inspect the vehicle within a reasonable time following delivery. If the Customer fails to comply with clause 7.15, the vehicle shall be presumed to be free from any defect or damage.
- The Customer acknowledges that it is the Customer’s responsibility to remove all personal/valuable items from the vehicle prior to BBIL carrying out their Services. BBIL shall not liable in the event of any apparent loss or damage to personal/valuable items left in the vehicle.
- The Customer acknowledges and accepts that the Goods supplied by BBIL may experience shrinkage or may move after installation/application, which is considered normal practice for these types of Goods and thereby not covered by BBIL’s as a defect or under warranty. BBIL shall not be liable for any loss or damage in this event, where circumstances are beyond the control of BBIL.
- The Customer accepts that the in the event that the vehicle is stored for any period on BBIL’s premises that it is done so at the Customer’s own risk and it shall be the Customer’s responsibility to ensure their vehicle and its contents are insured adequately or at all.
- The Customer acknowledges that BBIL can only provide its Services on a vehicle in its current state as supplied to BBIL therefore BBIL shall not accept any responsibility for the workmanship of any third party that has worked on a Customer’s vehicle prior to Services being undertaken by BBIL (including, but not limited to, poor paintwork or repairs).
- The Customer shall inform BBIL of any potential delays that may affect the approval of Services and/or amendments to be communicated in a timely manner, including, but not limited to the Customer’s authorisation process.
The Customer acknowledges and accepts that:
- BBIL cannot guarantee the condition of pre-existing paintwork on vehicles or other materials to which vinyl Goods are to be attached and therefore BBIL shall not be held liable for any damage that may occur to the paintwork/surface where vinyl adhesives are removed or applied; and
- the adhesion of vinyl signs may be impaired where a paint protection coating has been applied. Furthermore, as such paint protections coating are unable to be removed, adhesion failure shall not be deemed to be a defect in this instance.
Design Concepts and Projects
- Any indication provided by BBIL as to the duration of the project shall be considered as an estimate and shall commence from the date that cleared deposit funds (where applicable) are received by BBIL.
- All work carried out whether experimentally or otherwise at the Customer’s request will be charged to the Customer.
- The Customer acknowledges that any artwork provided by BBIL may not be to scale. In addition, whilst BBIL will endeavour to provide an accurate representation of any artwork, the Customer accepts that some discrepancy may occur between on-screen and/or photographic views and the physical artwork when viewed in an electronic form.
Artwork and Proof Reading
- Whilst every care is taken by BBIL to carry out the instructions of the Customer, it is the Customer’s responsibility to undertake a final proof reading of the Goods. BBIL shall accept no liability whatsoever for any errors not picked up and/or corrected by the Customer in the final proof reading.
- Any amendments to the artwork or proofs shall be charged at BBIL’s standard hourly rate.
- Any artwork provided by BBIL cannot be reproduced by the Customer until payment has been received by BBIL.
- The Customer shall ensure that BBIL has clear and free access to the installation site at all times to enable them to undertake the Services. BBIL 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 BBIL.
Compliance with Laws
- The Customer and BBIL 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, including any Worksafe guidelines regarding health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
- Notwithstanding clause 11.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”) BBIL agrees at all times comply with sections 29 and 34 of the “HSW Act” with meeting their obligations for health and safety laws in the workplace regardless of whether they may be the party in control of the Servicesite or if in the event that they may be acting as a subcontractor for the Customer’s where the Customer has engaged a thirty party head contractor.
- The Customer shall obtain (at the expense of the Customer) all licenses, approvals, applications and permits that may be required for the Services.
BBIL and the Customer agree that ownership of the Goods shall not pass until:
- the Customer has paid BBIL all amounts owing to BBIL; and
- the Customer has met all of its other obligations to BBIL.
- Receipt by BBIL 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.
It is further agreed that until ownership of the Goods passes to the Customer in accordance with clause 12.1:
- the Customer is only a bailee of the Goods and must return the Goods to BBIL on request;
- the Customer holds the benefit of the Customer’s insurance of the Goods on trust for BBIL and must pay to BBIL the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
- the Customer 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 Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for BBIL and must pay or deliver the proceeds to BBIL on demand;
- the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of BBIL and must sell, dispose of or return the resulting product to BBIL as it so directs;
- the Customer irrevocably authorises BBIL to enter any premises where BBIL believes the Goods are kept and recover possession of the Goods;
- BBIL may recover possession of any Goods in transit whether or not Delivery has occurred;
- the Customer 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 BBIL;
- BBIL may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
- BBIL and the Customer agree that ownership of the Goods shall not pass until:
Personal Property Securities Act 1999 (“PPSA”)
Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:
- these terms and conditions constitute a security agreement for the purposes of the PPSA; and
- a security interest is taken in all Goods and/or collateral (account) – being a monetary obligation of the Customer to BBIL for Services – that have previously been supplied and that will be supplied in the future by BBIL to the Customer.
The Customer undertakes to:
- sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which BBIL may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
- indemnify, and upon demand reimburse, BBIL for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
- not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of BBIL; and
- immediately advise BBIL of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
- BBIL and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
- The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
- Unless otherwise agreed to in writing by BBIL, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
- The Customer shall unconditionally ratify any actions taken by BBIL under clauses 13.1 to 13.5.
- Subject to any express provisions to the contrary (including those contained in this clause 13), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
- Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:
Security and Charge
- In consideration of BBIL agreeing to supply the Goods, the Customer 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 Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
- The Customer indemnifies BBIL from and against all BBIL’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising BBIL’s rights under this clause.
- The Customer irrevocably appoints BBIL and each director of BBIL as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 14 including, but not limited to, signing any document on the Customer’s behalf.
- The Customer shall inspect the Goods on Delivery and shall within thirty (30) days of Delivery (time being of the essence) notify BBIL of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford BBIL an opportunity to inspect the Goods within a reasonable time following Delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which BBIL has agreed in writing that the Customer is entitled to reject, BBIL’s liability is limited to either (at BBIL’s discretion) replacing the Goods or repairing the Goods.
Goods will not be accepted for return other than in accordance with 15.1 above, and provided that:
- BBIL has agreed in writing to accept the return of the Goods; and
- the Goods are returned at the Customer’s cost within seven (7) days of the Delivery date; and
- BBIL will not be liable for Goods which have not been stored or used in a proper manner; and
- 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.
- BBIL will not accept the return of non-defectie Goods for credit.
- Subject to clause 15.1, non-stocklist items or Goods made to the Customer’s specifications are not acceptable for credit or return.
- Subject to the conditions of warranty set out in clause 16.2 BBIL warrants that if any defect in any workmanship of BBIL becomes apparent and is reported to BBIL within twenty-four (24) months of the date of Delivery (time being of the essence) then BBIL will either (at BBIL’s sole discretion) replace or remedy the workmanship.
The conditions applicable to the warranty given by clause 16.1 are:
the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
- failure on the part of the Customer to properly maintain any Goods; or
- failure on the part of the Customer to follow any instructions or guidelines provided by BBIL; or
- any use of any Goods otherwise than for any application specified on a quote or order form; or
- the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
- fair wear and tear, any accident or act of God.
- the warranty shall cease and BBIL shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without BBIL’s consent.
- in respect of all claims BBIL shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.
- the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
- For Goods not manufactured by BBIL, the warranty shall be the current warranty provided by the manufacturer of the Goods. BBIL 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.
Consumer Guarantees Act 1993
- If the Customer is acquiring Goods for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by BBIL to the Customer.
- Where BBIL has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of BBIL. Under no circumstances may such designs, drawings and documents be used without the express written approval of BBIL.
- The Customer warrants that all designs, specifications or instructions given to BBIL will not cause BBIL to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify BBIL against any action taken by a third party against BBIL in respect of any such infringement.
- The Customer agrees that BBIL may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which BBIL has created for the Customer.
Default and Consequences of Default
- 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 BBIL’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
- If the Customer owes BBIL any money the Customer shall indemnify BBIL from and against all costs and disbursements incurred by BBIL in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, BBIL’s collection agency costs, and bank dishonour fees).
- Further to any other rights or remedies BBIL may have under this Contract, if a Customer has made payment to BBIL, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by BBIL under this clause 19 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.
Without prejudice to BBIL’s other remedies at law BBIL shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to BBIL shall, whether or not due for payment, become immediately payable if:
- any money payable to BBIL becomes overdue, or in BBIL’s opinion the Customer will be unable to make a payment when it falls due;
- the Customer has exceeded any applicable credit limit provided by BBIL;
- the Customer 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
- a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
- Without prejudice to any other remedies BBIL may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions BBIL may suspend or terminate the supply of Goods to the Customer. BBIL will not be liable to the Customer for any loss or damage the Customer suffers because BBIL has exercised its rights under this clause.
- BBIL may cancel any contract to which these terms and conditions apply or cancel Delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice BBIL shall repay to the Customer any money paid by the Customer for the Goods. BBIL shall not be liable for any loss or damage whatsoever arising from such cancellation.
- In the event that the Customer cancels Delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by BBIL as a direct result of the cancellation (including, but not limited to, any loss of profits).
- Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
- All emails, documents, images or other recorded information held or used by BBIL is Personal Information as defined and referred to in clause 21.3 and therefore considered confidential. BBIL 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”). BBIL acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customers Personal Information, held by BBIL that may result in serious harm to the Customer, BBIL will notify the Customer 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 Customer by written consent, unless subject to an operation of law.
Notwithstanding clause 21.1, privacy limitations will extend to BBIL in respect of Cookies where transactions for purchases/orders transpire directly from BBIL’s website. BBIL 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 Customer’s:
- IP address, browser, email client type and other similar details;
- tracking website usage and traffic; and
- reports are available to BBIL when BBIL sends an email to the Customer, so BBIL may collect and review that information (“collectively Personal Information”)
- In order to enable / disable the collection of Personal Information by way of Cookies, the Customer 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 BBIL’s website.
The Customer authorises BBIL or BBIL’s agent to:
access, collect, retain and use any information about the Customer;
- (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 Customer’s creditworthiness; or
- for the purpose of marketing products and services to the Customer.
- disclose information about the Customer, whether collected by BBIL from the Customer directly or obtained by BBIL 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 Customer.
- access, collect, retain and use any information about the Customer;
- Where the Customer is an individual the authorities under clause 21.3 are authorities or consents for the purposes of the Privacy Act 1993.
- The Customer shall have the right to request BBIL for a copy of the Personal Information about the Customer retained by BBIL and the right to request BBIL to correct any incorrect Personal Information about the Customer held by BBIL.
- The Customer authorises BBIL or BBIL’s agent to:
If the Customer 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 BBIL may have notice of the Trust, the Customer covenants with BBIL as follows:
- the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
- the Customer 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 Customer against the Trust or the trust fund. The Customer 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;
the Customer will not without consent in writing of BBIL (BBIL will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
- the removal, replacement or retirement of the Customer as trustee of the Trust;
- any alteration to or variation of the terms of the Trust;
- any advancement or distribution of capital of the Trust; or
- any resettlement of the trust property.
- If the Customer 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 BBIL may have notice of the Trust, the Customer covenants with BBIL as follows:
- 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.
- 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 Auckland Courts of New Zealand.
- BBIL shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by BBIL of these terms and conditions (alternatively BBIL’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
- BBIL may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.
- The Customer cannot licence or assign without the written approval of BBIL.
- BBIL 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 Customer agrees and understands that they have no authority to give any instruction to any of BBIL’s sub-contractors without the authority of BBIL.
- The Customer agrees that BBIL may amend their general terms and conditions for subsequent future contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for BBIL to provide Goods to the Customer.
- Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
- 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.
Please note that a larger print version of these terms and conditions is available from BBIL on request.
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