1.1 “Greene Bros” shall mean Greene Bros Limited its successors and assigns or any person acting on behalf of and with the authority of Greene Bros Limited.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by Greene Bros to the Client.
1.3 “Guarantor” shall mean that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by Greene Bros to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and includes Goods described on any invoices, quotation, work authorisation or any other forms as provided by Greene Bros to the Client.
1.5 “Services” shall mean all services supplied by Greene Bros to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the price payable for the Goods as agreed between Greene Bros and the Client in accordance with clause 3 of this contract.
2.1 Any instructions received by Greene Bros from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by Greene Bros shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of Greene Bros.
2.4 The Client shall give Greene Bros not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by Greene Bros as a result of the Client’s failure to comply with this clause.
3. Price And Payment
3.1 At Greene Bros’s sole discretion the Price shall be either:
(a) As indicated on invoices provided by Greene Bros to the Client in respect of Goods supplied; or
(b) Greene Bros’s current price at the date of delivery of the Goods according to Greene Bros’s current Price list; or
(c) Greene Bros’s quoted Price (subject to clause 3.2) which shall be binding upon Greene Bros provided that the Client shall accept Greene Bros’s quotation in writing within thirty (30) days.
3.2 Greene Bros reserves the right to change the Price in the event of a variation to Greene Bros’s quotation.
3.3 Greene Bros reserves the right to charge a minimum Inspection Fee or Greene Bros’s standard hourly rate if more than two (2) hours is required in travelling in accessing the job prior to Greene Bros’s quotation as per clause 3.1. Greene Bros agrees to waive this Inspection Fee upon the Client’s acceptance of the quotation.
3.4 At Greene Bros’s sole discretion a deposit may be required.
3.5 At Greene Bros’s sole discretion:
(a) Payment shall be due on delivery of the Goods; or
(b) Payment shall be due before delivery of the Goods; or
(c) Payment for approved Clients shall be made by instalments in accordance with Greene Bros’s payment schedule.
3.6 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
3.7 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (Amex & Diners Credit Cards not accepted), or by direct credit, or by any other method as agreed to between the Client and Greene Bros.
3.8 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
4. Delivery Of Goods
4.1 At Greene Bros’s sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at Greene Bros’s address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by Greene Bros or Greene Bros’s nominated carrier); or
(c) The Client’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Client’s agent.
4.2 At Greene Bros’s sole discretion the costs of delivery are:
(a) in addition to the Price; or
(b) for the Client’s account.
4.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Greene Bros shall be entitled to charge a reasonable fee for redelivery.
4.4 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
4.5 Greene Bros may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
4.6 The Client shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:
(a) such discrepancy in quantity shall not exceed 5%; and
(b) the Price shall be adjusted pro rata to the discrepancy.
4.7 The failure of Greene Bros to deliver shall not entitle either party to treat this contract as repudiated.
4.8 Greene Bros shall not be liable for any loss or damage whatever due to failure by Greene Bros to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Greene Bros.
5.1 If Greene Bros retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
5.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Greene Bros is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Greene Bros is sufficient evidence of Greene Bros’s rights to receive the insurance proceeds without the need for any person dealing with Greene Bros to make further enquiries.
6.1 Greene Bros and Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Greene Bros all amounts owing for the particular Goods; and
(b) the Client has met all other obligations due by the Client to Greene Bros in respect of all contracts between Greene Bros and the Client.
6.2 Receipt by Greene Bros 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 and until then Greene Bros’s ownership or rights in respect of the Goods shall continue.
6.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Greene Bros shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Greene Bros to the Client Greene Bros may give notice in writing to the Client to return the Goods or any of them to Greene Bros. Upon such notice being given the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) the Client is only a bailee of the Goods and until such time as Greene Bros has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods on trust for Greene Bros; and
(d) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that Greene Bros will be the owner of the end products; and
(e) if the Client fails to return the Goods to Greene Bros then Greene Bros or Greene Bros’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Goods are situated as the invitee of the Client and take possession of the Goods, and Greene Bros will not be liable for any reasonable loss or damage suffered as a result of any action by Greene Bros under this clause.
7. Personal Property Securities Act 1999 (“PPSA”)
7.1 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Goods previously supplied by Greene Bros to the Client (if any) and all Goods that will be supplied in the future by Greene Bros to the Client.
7.2 The Client undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Greene Bros may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, Greene Bros 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;
(c) not register a financing change statement or a change demand without the prior written consent of Greene Bros; and
(d) immediately advise Greene Bros 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.
7.3 Greene Bros and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
7.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
7.5 Unless otherwise agreed to in writing by Greene Bros, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
7.6 The Client shall unconditionally ratify any actions taken by Greene Bros under clauses 7.1 to 7.5.
8. Client’s Disclaimer
8.1 The Client hereby disclaims any right to rescind, or cancel any contract with Greene Bros or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by Greene Bros and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgment.
9.1 The Client shall inspect the Goods on delivery and shall within two (2) days of delivery (time being of the essence) notify Greene Bros of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Greene Bros an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Greene Bros has agreed in writing that the Client is entitled to reject, Greene Bros’s liability is limited to either (at Greene Bros’s discretion) replacing the Goods or repairing the Goods.
10.1 Returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 9.1; and
(b) Greene Bros has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Client’s cost within five (5) days of the delivery date; and
(d) Greene Bros will not be liable for Goods which have not been stored or used in a proper manner; and
(e) 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.
10.2 Greene Bros may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of ten percent (10%) of the value of the returned Goods plus any freight.
11.1 Subject to the conditions of warranty set out in Clause 11.2 Greene Bros warrants that if any defect in any workmanship of Greene Bros becomes apparent and is reported to Greene Bros within one (1) month of the date of delivery (time being of the essence) then Greene Bros will either (at Greene Bros’s sole discretion) replace or remedy the workmanship.
11.2 The conditions applicable to the warranty given by Clause 11.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Goods; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by Greene Bros; or
(iii) any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and Greene Bros shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without Greene Bros’s consent.
(c) in respect of all claims Greene Bros shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
11.3 For Goods not manufactured by Greene Bros, the warranty shall be the current warranty provided by the manufacturer of the Goods. Greene Bros 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.
11.4 The conditions applicable to the warranty given on Goods supplied by Greene Bros are contained on the “Warranty Card” that will be supplied with the Goods.
11.5 In the case of second hand Goods, the Client acknowledges that he has had full opportunity to inspect the same and that he accepts the same with all faults and that no warranty is given by Greene Bros as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. Greene Bros shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
12. Consumer Guarantees Act 1993
12.1 If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by Greene Bros to the Client.
13. Default & Consequences Of Default
13.1 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 Greene Bros’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
13.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by Greene Bros.
13.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Greene Bros from and against all costs and disbursements incurred by Greene Bros in pursuing the debt including legal costs on a solicitor and own client basis and Greene Bros’s collection agency costs.
13.4 Without prejudice to any other remedies Greene Bros may have, if at any time the Client is in breach of any obligation (including those relating to payment), Greene Bros may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. Greene Bros will not be liable to the Client for any loss or damage the Client suffers because Greene Bros has exercised its rights under this clause.
13.5 If any account remains overdue after thirty (30) days then an amount of the greater of $20.00 or 10.00% of the amount overdue (up to a maximum of $200) shall be levied for administration fees which sum shall become immediately due and payable.
13.6 Without prejudice to Greene Bros’s other remedies at law Greene Bros shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Greene Bros shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Greene Bros becomes overdue, or in Greene Bros’s opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
14. Security And Charge
14.1 Despite anything to the contrary contained herein or any other rights which Greene Bros may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to Greene Bros or Greene Bros’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that Greene Bros (or Greene Bros’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should Greene Bros elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify Greene Bros from and against all Greene Bros’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Greene Bros or Greene Bros’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 14.1.
15.1 Greene Bros 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 Client. On giving such notice Greene Bros shall repay to the Client any sums paid in respect of the Price. Greene Bros shall not be liable for any loss or damage whatever arising from such cancellation.
15.2 In the event that the Client cancels delivery of the Goods the Client shall be liable for any loss incurred by Greene Bros (including, but not limited to, any loss of profits) up to the time of cancellation.
16. Dispute Resolution
16.1 All disputes and differences between the Client and the Greene Bros touching and concerning this agreement shall be referred to arbitration under a single arbitrator agreed upon by both parties, or failing agreement, by two arbitrators (one to be appointed by each party) and their umpire (appointed by them prior to arbitration), such arbitration to be carried out in accordance with provisions of the Arbitration Act 1996.
17. Privacy Act 1993
17.1 The Client and the Guarantor/s (if separate to the Client) authorises Greene Bros to:
(a) collect, retain and use any information about the Client and/or Guarantors, for the purpose of assessing the Client’s and/or Guarantors creditworthiness or marketing products and services to the Client and/or Guarantors; and
(b) disclose information about the Client and/or Guarantors, whether collected by Greene Bros from the Client and/or Guarantors directly or obtained by Greene Bros 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 Client and/or Guarantors.
17.2Where the Client and/or Guarantors are an individual the authorities under clause 17.1 are authorities or consents for the purposes of the Privacy Act 1993.
17.3 The Client and/or Guarantors shall have the right to request Greene Bros for a copy of the information about the Client and/or Guarantors retained by Greene Bros and the right to request Greene Bros to correct any incorrect information about the Client and/or Guarantors held by Greene Bros.
18. Unpaid Greene Bros’s Rights
18.1 Where the Client has left any item with Greene Bros for repair, modification, exchange or for Greene Bros to perform any other Service in relation to the item and Greene Bros has not received or been tendered the whole of the Price, or the payment has been dishonoured, Greene Bros shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while Greene Bros is in possession of the item;
(c) a right to sell the item after thirty (30) days.
18.2 The lien of Greene Bros shall continue despite the commencement of proceedings, or judgement for the Price having been obtained.
19.1 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.
19.2 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 courts of New Zealand.
19.3 Greene Bros shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Greene Bros of these terms and conditions.
19.4 In the event of any breach of this contract by Greene Bros the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
19.5 The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by Greene Bros.
19.6 Greene Bros may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
19.7 Greene Bros reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Greene Bros notifies the Client of such change.
19.8 The provisions of the Contractual Remedies Act 1979 shall apply to this contract as if section 15(d) were omitted from the Contractual Remedies Act 1979.
19.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
19.10 The failure by Greene Bros to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Greene Bros’s right to subsequently enforce that provision.