Terms of Trade

BW Henderson Electrical Ltd – Terms & Conditions Of Trade

#13573 © Copyright – EC Credit Control 1999 – 2021

Updated June 2026 — Includes Payment, Privacy & Fair Trading Compliance Updates

1. Definitions

1.1 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting BWH to provide the Works as specified in any proposal, quotation, order, invoice, or other documentation, and:

(a) if there is more than one Client, is a reference to each Client jointly and severally; and

(b) if the Client is a partnership, it shall bind each partner jointly and severally; and

(c) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and

(d) includes the Client’s executors, administrators, successors and permitted assigns.

1.2 “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.

1.3 “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 Client does not wish to allow Cookies to operate in the background when using BWH’s website, then the Client shall have the right to enable/disable the Cookies first by selecting the option to enable/disable provided on the website, prior to making enquiries via the website.

1.4 “BWH” means BW Henderson Electrical Ltd, its successors and assigns.

1.5 “Intended Use” means a product and the use thereof, for which the product is intended to be, or is reasonably likely to be, associated with the Works.

1.6 “Non-Conforming Building Product” means building products that are regarded as Non-Conforming for an Intended Use if, when associated with a building:

(a) the product is not, or will not be, safe; or

(b) does not, or will not, comply with the relevant regulatory provisions; or

(c) the product does not perform, or is not capable of performing, for the use to the standard it is represented to conform by or for a person in the chain of responsibility for the product.

1.7 “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Works as agreed between BWH and the Client in accordance with clause 6 below.

1.8 “Works” means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by BWH to the Client at the Client’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).

1.9 “Worksite” means the address nominated by the Client to which the Materials are to be supplied by BWH.

1.10 “Quoted Job” means any Works for which BWH has provided a written quote or estimate accepted by the Client prior to commencement.

1.11 “Non-Quoted Job” means any service call, maintenance visit, or Works carried out without a prior written quote, billed on a time-and-materials basis.

2. Acceptance

2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of any Works.

2.2 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.

2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.

2.4 The Client acknowledges that the supply of Works on credit shall not take effect until the Client has completed a credit application with BWH and it has been approved with a credit limit established for the account.

2.5 In the event that the supply of Works requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, BWH reserves the right to refuse delivery.

2.6 Any advice, recommendation, information, assistance or service provided by BWH in relation to Works or Materials supplied is given in good faith based on BWH’s own knowledge and experience. To the extent permitted by law, BWH shall not be liable for any loss or damage arising from reliance on such advice. The Client acknowledges that it is responsible for confirming that any advice is suitable for its particular circumstances. Where such advice or recommendations are not acted upon then BWH shall require the Client or their agent to authorise commencement of the Works in writing.

2.7 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.

3. Authorised Representatives

3.1 The Client acknowledges that BWH shall (for the duration of the Works) liaise directly with one (1) authorised representative, and that once introduced as such to BWH, that person shall have the full authority of the Client to order any Works and/or to request any variation thereto on the Client’s behalf. The Client accepts that they will be solely liable to BWH for all additional costs incurred by BWH (including BWH’s profit margin) in providing any Works or variation/s requested thereto by the Client’s duly authorised representative.

4. Errors and Omissions

4.1 The Client acknowledges and accepts that BWH shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):

(a) resulting from an inadvertent mistake made by BWH in the formation and/or administration of this Contract; and/or

(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by BWH in respect of the Works.

4.2 In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of BWH; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.

5. Change in Control

5.1 The Client shall give BWH not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Client shall be liable for any loss incurred by BWH as a result of the Client’s failure to comply with this clause.

6. Price and Payment

6.1 At BWH’s sole discretion the Price shall be either:

(a) as indicated on invoices provided by BWH to the Client in respect of Works performed or Materials supplied; or

(b) BWH’s quoted Price (subject to clause 6.2) which shall be binding upon BWH provided that the Client shall accept BWH’s quotation in writing within thirty (30) days.

6.2 BWH reserves the right to change the Price:

(a) if a variation to the Materials which are to be supplied is requested; or

(b) if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or

(c) where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather, limitations to accessing the Worksite, obscured building/Worksite defects, incorrect measurements, plans and/or specifications provided by the Client, safety considerations (discovery of asbestos, etc.), prerequisite work by any third party not being completed, hard rock barriers below the surface, iron reinforcing rods in concrete or hidden pipes and wiring in walls, etc.) which are only discovered on commencement of the Works; or

(d) in the event of increases to BWH in the cost of labour or materials which are beyond BWH’s control.

6.3 Variations will be charged for on the basis of BWH’s quotation, and will be detailed in writing, and shown as variations on BWH’s invoice. The Client shall be required to respond to any variation submitted by BWH within ten (10) working days. Failure to do so will entitle BWH 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.

6.4 Quoted Jobs — Deposit Requirement:

(a) A deposit of fifty percent (50%) of the total quoted Price (exclusive of GST) is required for all Quoted Jobs before the Works will be scheduled or any work commenced.

(b) BWH will not schedule or commence any Quoted Job until the 50% deposit has been received and cleared. Scheduling is subject to technician availability at the time of deposit receipt.

(c) The deposit is non-refundable to the extent of costs reasonably incurred by BWH (including materials purchased, labour allocated, and administrative costs) in the event of cancellation by the Client, except where BWH is in default.

(d) The remaining balance of the quoted Price is due on the date of invoice following completion of the Works, unless a different payment schedule has been agreed in writing.

6.5 Non-Quoted Jobs — Minimum Charge on Arrival:

(a) For all Non-Quoted Jobs, a minimum call-out charge of $160.00 + GST applies. This minimum charge is due and payable upon arrival of the technician at the Worksite and before any Works commence. BWH’s technician will not begin any Works until payment of the minimum charge has been received.

(b) If the total time and materials for a Non-Quoted Job exceed the minimum charge, the Client will be invoiced for the full amount at the applicable hourly rate plus materials. Payment of the minimum charge on arrival does not constitute payment in full for the Works.

(c) If payment of the minimum charge is not made upon arrival, BWH reserves the right to refuse to commence Works and to charge the Client for the call-out regardless.

6.6 Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by BWH, which may be:

(a) on completion of the Works;

(b) by way of progress payments in accordance with BWH’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the Worksite but not yet installed;

(c) for certain approved Clients, due twenty (20) days following the end of the month in which a statement is posted to the Client’s address or address for notices;

(d) the date specified on any invoice or other form as being the date for payment; or

(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by BWH.

6.7 No allowance has been included within the quotation for Works to be carried out outside of BWH’s normal working hours.

6.8 At the agreement of both parties, payment of the Price may be subject to retention by the Client of an amount (hereafter called the “Retention Money”), being a set amount or equal to a percentage of the Price. The Client shall hold the Retention Money for the agreed period following completion of the Works during which time all Works are to be completed and/or all defects are to be remedied. Any Retention Money applicable to this Contract is to be dealt with in accordance with Subpart 2A – sections 18(a) to 18(i) of the Construction Contracts Amendment Act 2015 and as such no Retention Money shall be used other than to remedy defects in the performance of the Contractor’s obligations under the Contract.

6.9 Payment may be made by bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and BWH.

6.10 BWH may in its discretion allocate any payment received from the Client towards any invoice that BWH determines and may do so at the time of receipt or at any time afterwards. On any default by the Client BWH may re-allocate any payments previously received and allocated. In the absence of any payment allocation by BWH, payment will be deemed to be allocated in such manner as preserves the maximum value of BWH’s Purchase Money Security Interest (as defined in the PPSA) in the Materials.

6.11 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 BWH nor to withhold payment of any invoice because part of that invoice is in dispute, unless the request for payment by BWH is a claim made under the Construction Contracts Act 2002. Nothing in this clause 6.11 prevents the Client from the ability to dispute any invoice.

6.12 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to BWH an amount equal to any GST BWH must pay for any supply by BWH under this or any other agreement for the sale of the Materials. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client 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.

7. Provision of the Works

7.1 Subject to clause 7.2 it is BWH’s responsibility to ensure that the Works start as soon as it is reasonably possible.

7.2 The Works’ commencement date will be put back and the completion date extended by whatever time is reasonable in the event that BWH claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond BWH’s control, including but not limited to any failure by the Client to:

(a) make a selection; or

(b) have the Worksite ready for the Works; or

(c) notify BWH that the Worksite is ready.

7.3 BWH may deliver the Works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

7.4 Any time specified by BWH for delivery of the Works is an estimate only and BWH will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Works to be supplied at the time and place as was arranged between both parties. In the event that BWH is unable to supply the Works as agreed solely due to any action or inaction of the Client, then BWH shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date, and/or for storage of the Materials.

8. Risk

8.1 If BWH retains ownership of the Materials under clause 12 then:

(a) where BWH is supplying Materials only, all risk for the Materials shall immediately pass to the Client on delivery and the Client must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that either:

(i) the Client or the Client’s nominated carrier takes possession of the Materials at BWH’s address; or

(ii) the Materials are delivered by BWH or BWH’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address). At BWH’s sole discretion, the cost of delivery is included in the Price;

(b) where BWH is to both supply and install Materials then BWH shall maintain a contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Client.

8.2 Notwithstanding the provisions of clause 8.1 if the Client specifically requests BWH to leave Materials outside BWH’s premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at sole risk of the Client and it shall be the Client’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Client’s expense.

8.3 The Client warrants that any structures to which the Materials are to be affixed are able to withstand the installation of the Materials and that any electrical connections (including, but not limited to, meter boxes, main switches, circuit breakers, and electrical cable) are of suitable capacity to handle the Materials once installed. If, for any reason (including but not limited to, the structure not being watertight, the discovery of asbestos, defective or unsafe wiring, or dangerous access etc.) BWH reasonably forms the opinion that the Client’s property is not safe for the installation of Materials to proceed then BWH shall be entitled to delay installation of the Materials (in accordance with clause 7.2) until BWH is satisfied that it is safe for the installation to proceed. BWH may in agreement with the Client bring the property up to a standard suitable for installation to proceed but all such Works undertaken and any additional Materials supplied shall be treated as a variation and be charged for in addition to the Price.

8.4 In the event asbestos or any other toxic substances are discovered at the property, that it is the Client’s responsibility to ensure the safe removal of the same. The Client further agrees to indemnify BWH against any costs incurred by BWH as a consequence of such discovery. Under no circumstances will BWH handle removal of asbestos product.

8.5 BWH shall upon installation ensure that all Materials are to be installed in a manner that is fully compliant with industry standards. If, for any reason, the Client specifically requires the Materials to be installed in any way which goes against BWH’s recommendations and/or falls below industry standards; a request detailing that requirement must be made in writing to BWH. Accordingly, BWH offers no warranty in regards to the aforementioned.

8.6 All work will be tested to ensure that it is electrically safe and is in accordance with the wiring rules and other standards applying to the electrical installation under the Electrical Safety Regulations. All of the cabling work will comply with the Australian and New Zealand Wiring standards.

8.7 The Client acknowledges that BWH is only responsible for Materials that are replaced/supplied by BWH, and in the event that other parts/goods, subsequently fail, the Client agrees to indemnify BWH against any loss or damage to the Works, or caused by the goods, or any part thereof howsoever arising.

8.8 BWH accepts no responsibility for any damage or performance related problems with any Materials where they have not been used and/or maintained in accordance with BWH’s and/or the manufacturers’ recommendations.

8.9 BWH shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, BWH accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.

8.10 The Client acknowledges that all descriptive specifications, illustrations, drawings, data dimensions, and weights stated in BWH’s fact sheets, price lists or advertising material are indicative only and that they have not relied on such information.

8.11 Where BWH requires that Materials, tools etc. required for the Works be stored at the Worksite, the Client shall supply BWH a safe area for storage and shall take all reasonable efforts to protect all items from destruction, theft or damage. In the event that any of the stored items are destroyed, stolen or damaged, then the cost of repair or replacement shall be the Client’s responsibility.

8.12 The Client warrants that no other tradesmen interfere with any Works and/or Materials supplied under this Contract. BWH shall not be liable for any costs, damages or loss however arising from the Client’s failure to comply with this clause.

8.13 BWH accepts no responsibility for:

(a) any damage or defects in any Materials caused by movement and/or interference of the said Materials; and

(b) painting, re-decorating, re-sealing, carpentry or any other Works required for the restoration or making good of any surface/area where any Works have been carried out.

8.14 The Client acknowledges that they shall:

(a) not be entitled to withhold any payment due under this Contract because of any delay in the connection of, or the supply of electricity to the Materials by an electrical distributor or any other third party;

(b) be responsible for any building work, excavation work, core drilling or any other non-standard surface penetrations that need to be carried out to enable BWH to carry out the Works;

(c) provide and have erected scaffolding to enable the Works to be undertaken (where in BWH’s opinion it is deemed necessary). Any scaffolding must comply with industry safety standards and any person erecting the scaffolding shall be suitably qualified to ensure its safe and proper erection, and where necessary, shall hold a current certificate of competency and/or be fully licensed;

(d) remove any furniture or personal items from the vicinity of the Works, and agrees that BWH shall not be liable for any damage caused to those items through the Clients failure to comply with this clause;

(e) be wholly responsible for animals and/or children on the Worksite; and

(f) be wholly responsible for the removal of rubbish from or clean-up of the Worksite;

9. Worksite Access and Condition

9.1 BWH is not responsible for the removal of rubbish from or clean-up of the building/construction Worksite/s. All rubbish generated by BWH will be placed in a designated area appointed by the Client but the responsibility of removal of same is the Client or the Client’s agent, unless otherwise agreed.

9.2 It is the intention of BWH and agreed by the Client that:

(a) the Client shall ensure that BWH has clear and free access to the Worksite at all times to enable them to undertake the Works (including carrying out Worksite inspections, gain signatures for required documents, and for the delivery and installation of the Materials). BWH shall not be liable for any loss or damage to the Worksite (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of BWH; and

(b) it is the Client’s responsibility to provide BWH, while at the Worksite, with adequate access to available water, electricity, toilet and washing facilities.

9.3 The Client agrees to be present at the Worksite when and as reasonably requested by BWH and its employees, contractors and/or agents.

9.4 Worksite Inductions

(a) in the event the Client requires an employee or sub-contractor of BWH to undertake a Worksite induction during working hours, the Client will be liable to pay the hourly charges for that period. If any induction needs to be undertaken prior to the commencement date then the Client shall be liable to pay BWH’s standard (and/or overtime, if applicable) hourly labour rate; or

(b) where BWH is in control of the Worksite, the Client and/or the Client’s third-party contractors must initially carry out BWH’s Health & Safety induction course before access to the Worksite will be granted. Inspection of the Worksite during the course of the Works will be by appointment only and unless otherwise agreed, in such an event the Client and/or third party acting on behalf of the Client must at all times be accompanied by BWH.

10. Underground Locations

10.1 Prior to BWH commencing any work the Client must advise BWH of the precise location of all underground services on the Worksite and clearly mark the same. The underground mains and services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on the Worksite.

10.2 Whilst BWH will take all care to avoid damage to any underground services the Client agrees to indemnify BWH in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 10.1.

11. Compliance with Laws

11.1 The Client and BWH shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works, including any WorkSafe health and safety laws relating or any other relevant safety standards or legislation pertaining to the Works.

11.2 Both parties acknowledge and agree:

(a) to comply with the Building Act 2004 (including any subsequent Amendments) in respect of all workmanship and building products to be supplied during the course of the Works; and

(b) that Works will be provided in accordance with any current relevant Australian/New Zealand Standards applicable.

11.3 If during the course of installation when the Works are being conducted within and around switchboards that if the same is found defective or deemed to be unsafe by BWH, then BWH shall notify the Client immediately. The power, if isolated, will not be re-energised until such time as the existing condition has been rectified and made safe in accordance to the Electrical Safety Regulations. The Client accepts and agrees that any costs associated with the rectification Works including any Materials and labour shall be to the Client’s account.

11.4 Any live services or Works undertaken near live conductors where it is safe to do so shall be dealt with in accordance with Australian and New Zealand Wiring standards being “Safe working on Low Voltage Electrical Installations, relevant Commonwealth and Statutory Acts and Work Place Regulations”. BWH’s live services procedures are designed to eliminate risk of injury to BWH’s employees, damage to the Client’s installations and unexpected power disconnections. It may in some cases require disconnection and isolation of the installation to undertake such Works for which additional charges may be applicable. This shall be invoiced in accordance with clause 6.2.

11.5 Where the Client has supplied products for BWH to complete the Works, the Client acknowledges that it accepts responsibility for the suitability of purpose and use for their products and the Intended Use and any faults inherent in those products. However, if in BWH’s opinion, it is believed that the materials supplied are Non-Conforming products and will not conform with New Zealand regulations, then BWH shall be entitled, without prejudice, to halt the Works until the appropriate conforming products are sourced and all costs associated with such a change to the plans and design will be invoiced in accordance with clause 6.2.

11.6 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.

11.7 Notwithstanding clause 11.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”), BWH agrees at all times to comply with sections 28 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 Worksite or where they may be acting as a sub-contractor for the Client who has engaged a third party head contractor.

12. Title

12.1 BWH and the Client agree that ownership of the Materials shall not pass until:

(a) the Client has paid BWH all amounts owing to BWH; and

(b) the Client has met all of its other obligations to BWH.

12.2 Receipt by BWH 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.

12.3 It is further agreed that:

(a) until ownership of the Materials passes to the Client in accordance with clause 12.1 that the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to BWH on request;

(b) the Client holds the benefit of the Client’s insurance of the Materials on trust for BWH and must pay to BWH the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed;

(c) the production of these terms and conditions by BWH shall be sufficient evidence of BWH’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with BWH to make further enquiries;

(d) the Client must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Materials then the Client must hold the proceeds of any such act on trust for BWH and must pay or deliver the proceeds to BWH on demand;

(e) the Client should not convert or process the Materials or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of BWH and must sell, dispose of or return the resulting product to BWH as it so directs;

(f) unless the Materials have become fixtures the Client irrevocably authorises BWH to enter any premises where BWH believes the Materials are kept and recover possession of the Materials;

(g) BWH may recover possession of any Materials in transit whether or not delivery has occurred;

(h) the Client shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of BWH; and

(i) BWH may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.

13. Personal Property Securities Act 1999 (“PPSA”)

13.1 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 Materials that have previously been supplied and that will be supplied in the future by BWH to the Client and the proceeds from such Materials.

13.2 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 BWH may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;

(b) indemnify, and upon demand reimburse, BWH for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Materials charged thereby;

(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials or the proceeds of such Materials in favour of a third party without the prior written consent of BWH; and

(d) immediately advise BWH of any material change in its business practices of selling Materials which would result in a change in the nature of proceeds derived from such sales.

13.3 BWH and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.

13.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.

13.5 Unless otherwise agreed to in writing by BWH, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.

13.6 The Client shall unconditionally ratify any actions taken by BWH under clauses 13.1 to 13.5.

13.7 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.

14. Security and Charge

14.1 In consideration of BWH agreeing to supply the Works, the Client 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 Client either now or in the future, and the Client grants a security interest in all of its present and after-acquired property, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money). The terms of the charge and security interest are the terms of Memorandum 2018/4344 registered pursuant to s.209 of the Land Transfer Act 2017.

14.2 The Client indemnifies BWH from and against all BWH’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising BWH’s rights under this clause.

14.3 The Client irrevocably appoints BWH and each director of BWH as the Client’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 Client’s behalf.

15. Defects and Returns

15.1 The Client shall inspect the Materials on delivery and shall within seven (7) days of delivery (time being of the essence) notify BWH of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford BWH an opportunity to inspect the Materials within a reasonable time following delivery if the Client believes the Materials are defective in any way. If the Client shall fail to comply with these provisions the Materials shall be presumed to be free from any defect or damage. For defective Materials, which BWH has agreed in writing that the Client is entitled to reject, BWH’s liability is limited to either (at BWH’s discretion) replacing the Materials or repairing the Materials.

15.2 Returns will only be accepted provided that:

(a) the Client has complied with the provisions of clause 15.1; and

(b) BWH has agreed in writing to accept the return of the Materials; and

(c) the Materials are returned at the Client’s cost within seven (7) days of the delivery date; and

(d) BWH will not be liable for Materials which have not been stored or used in a proper manner; and

(e) the Materials 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.

15.3 Returned Materials may (at BWH’s sole discretion), incur restocking and handling fees.

15.4 Subject to clause 15.1, non-stocklist items or Materials made to the Client’s specifications are under no circumstances acceptable for credit or return.

16. Warranties

16.1 Subject to the conditions of warranty set out in clause 16.2 BWH warrants that if any defect in any Materials manufactured or Works provided by BWH becomes apparent and is reported to BWH within twelve (12) months of the date of delivery (time being of the essence) then BWH will either (at BWH’s sole discretion) replace or remedy the defect.

16.2 The conditions applicable to the warranty given by clause 16.1 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 Materials or serviced item; or

(ii) failure on the part of the Client to follow any instructions or guidelines provided by BWH; or

(iii) any use of any Materials or serviced item otherwise than for any application specified on a quote or order form; or

(iv) the continued use of any Materials or serviced item 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 BWH shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without BWH’s consent.

(c) in respect of all claims BWH 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.

16.3 For Materials not manufactured by BWH, the warranty shall be the current warranty provided by the manufacturer of the Materials. BWH 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 Materials.

17. Consumer Guarantees Act 1993

17.1 If the Client is acquiring Materials or Works for the purposes of a trade or business, the Client agrees that the Consumer Guarantees Act 1993 (“CGA”) does not apply to the extent permitted by law, and it is fair and reasonable that the parties are bound by this provision.

18. Intellectual Property

18.1 Where BWH has designed, drawn, written plans or a schedule of Works, or created any products for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in BWH, and shall only be used by the Client at BWH’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of BWH.

18.2 The Client warrants that all designs, specifications or instructions given to BWH will not cause BWH to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify BWH against any action taken by a third party against BWH in respect of any such infringement.

18.3 The Client agrees that BWH may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which BWH has created for the Client.

19. Default and Consequences of Default

19.1 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 BWH’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

19.2 If the Client owes BWH any money the Client shall indemnify BWH from and against all costs and disbursements incurred by BWH in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, BWH’s collection agency costs, and bank dishonour fees).

19.3 Further to any other rights or remedies BWH may have under this Contract, if a Client has made payment to BWH, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by BWH under this clause 19, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.

19.4 Without prejudice to BWH’s other remedies at law BWH shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to BWH shall, whether or not due for payment, become immediately payable if:

(a) any money payable to BWH becomes overdue, or in BWH’s opinion the Client will be unable to make a payment when it falls due;

(b) the Client has exceeded any applicable credit limit provided by BWH;

(c) the Client becomes insolvent or bankrupt, 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

(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

20. Cancellation

20.1 Without prejudice to any other rights or remedies BWH may have, if at any time the Client is in breach of any obligation (including those relating to payment and/or failure to remedy any breach in respect of this Contract within ten (10) working days of receipt by the Client of such notice/s) then BWH may suspend or terminate the supply of the Works. BWH will not be liable to the Client for any loss or damage the Client suffers because BWH has exercised its rights under this clause.

20.2 BWH may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Client. On giving such notice BWH shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to BWH for Works already performed. BWH shall not be liable for any loss or damage whatsoever arising from such cancellation.

20.3 In the event that the Client cancels the delivery of Works the Client shall be liable for any and all loss incurred (whether direct or indirect) by BWH as a direct result of the cancellation (including, but not limited to, any loss of profits).

20.4 Cancellation of orders for products made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

21. Privacy Policy

21.1 All emails, documents, images or other recorded information held or used by BWH is “Personal Information” as defined in the Privacy Act 2020. BWH acknowledges its obligations under the Privacy Act 2020 and any amendments thereto, including the Privacy Amendment Act 2025, and will comply with all applicable Information Privacy Principles.

21.2 BWH will only collect Personal Information that is reasonably necessary for the purposes of:

(a) providing the Works;

(b) administering accounts and credit arrangements;

(c) complying with legal obligations;

(d) communicating with the Client; and

(e) any other purpose expressly consented to by the Client.

21.3 The Client authorises BWH or its agent to collect, retain and use Personal Information (including name, address, contact details and credit-related information) for the purposes outlined in clause 21.2.

21.4 BWH may disclose Personal Information:

(a) to credit reporting agencies and other credit providers for the purposes of providing or obtaining a credit reference or debt collection;

(b) to contractors or service providers engaged by BWH to assist in providing the Works;

(c) where required or authorised by law; or

(d) with the Client’s express consent.

21.5 Where Personal Information is disclosed to parties overseas, BWH will take reasonable steps to ensure that comparable privacy safeguards are in place, consistent with the Privacy Act 2020.

21.6 BWH will take reasonable steps to ensure that Personal Information held is accurate, up-to-date, and stored securely against unauthorised access, use, or disclosure.

21.7 BWH will not retain Personal Information for longer than is necessary to fulfil the purposes for which it was collected, or as required by law.

21.8 The Client shall have the right to request (by e-mail) from BWH a copy of the Personal Information about the Client retained by BWH, and the right to request that BWH correct any incorrect Personal Information. BWH will respond to such requests within a reasonable time.

21.9 In the event BWH becomes aware of a privacy breach that is likely to cause serious harm to the Client, BWH will notify the Client and the Privacy Commissioner as required under the Privacy Act 2020 and the Privacy Amendment Act 2025.

21.10 The Client may opt out of receiving marketing communications from BWH at any time by notifying BWH in writing or by e-mail. BWH will action such requests promptly.

21.11 BWH’s website may use Cookies and similar tracking technologies. The Client may manage and control Cookie settings via their web browser, including removing Cookies by deleting them from the browser history when exiting the site.

21.12 The Client may make a privacy complaint by contacting BWH via e-mail at admin@bwhenderson.co.nz. BWH will respond within seven (7) days and take all reasonable steps to resolve the complaint within twenty (20) days. If the Client is not satisfied with BWH’s response, the Client may escalate the complaint to the Privacy Commissioner at http://www.privacy.org.nz.

22. Suspension of Works

22.1 Where the Contract is subject to section 24A of the Construction Contracts Act 2002, the Client hereby expressly acknowledges that:

(a) BWH has the right to suspend work within five (5) working days of written notice of its intent to do so if a payment claim is served on the Client, and:

(i) the payment is not paid in full by the due date for payment in accordance with clause 6.6 and/or any subsequent amendments or new legislation and no payment schedule has been given by the Client; or

(ii) a scheduled amount stated in a payment schedule issued by the Client in relation to the payment claim is not paid in full by the due date for its payment; or

(iii) the Client has not complied with an adjudicator’s notice that the Client must pay an amount to BWH by a particular date; and

(iv) BWH has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction Contract.

(b) if BWH suspends work, it:

(i) is not in breach of Contract; and

(ii) is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Client or by any person claiming through the Client; and

(iii) is entitled to an extension of time to complete the Contract; and

(iv) keeps its rights under the Contract including the right to terminate the Contract; and may at any time lift the suspension, even if the amount has not been paid or an adjudicator’s determination has not been complied with.

(c) if BWH exercises the right to suspend work, the exercise of that right does not:

(i) affect any rights that would otherwise have been available to BWH under the Contract and Commercial Law Act 2017; or

(ii) enable the Client to exercise any rights that may otherwise have been available to the Client under that Act as a direct consequence of BWH suspending work under this provision;

(d) due to any act or omission by the Client, the Client effectively precludes BWH from continuing the Works or performing or complying with BWH’s obligations under this Contract, then without prejudice to BWH’s other rights and remedies, BWH may suspend the Works immediately after serving on the Client a written notice specifying the payment default or the act, omission or default upon which the suspension of the Works is based. All costs and expenses incurred by BWH as a result of such suspension and recommencement shall be payable by the Client as if they were a variation.

22.2 If pursuant to any right conferred by this Contract, BWH suspends the Works and the default that led to that suspension continues un-remedied subject to clause 20.1 for at least ten (10) working days, BWH shall be entitled to terminate the Contract, in accordance with clause 20.

23. Service of Notices

23.1 Any written notice given under this Contract shall be deemed to have been given and received:

(a) by handing the notice to the other party, in person;

(b) by leaving it at the address of the other party as stated in this Contract;

(c) by sending it by registered post to the address of the other party as stated in this Contract;

(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;

(e) if sent by email to the other party’s last known email address.

23.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

24. Trusts

24.1 If the Client 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 BWH may have notice of the Trust, the Client covenants with BWH as follows:

(a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;

(b) the Client 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 Client against the Trust or the trust fund. The Client 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;

(c) the Client will not without consent in writing of BWH (BWH will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:

(i) the removal, replacement or retirement of the Client as trustee of the Trust;

(ii) any alteration to or variation of the terms of the Trust;

(iii) any advancement or distribution of capital of the Trust; or

(iv) any resettlement of the trust property.

25. General

25.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising herein, shall be submitted to, and settled by, mediation before resorting to any external dispute resolution mechanisms (including arbitration or court proceedings) by notifying the other party in writing setting out the reason for the dispute. The parties shall share equally the mediator’s fees. Should mediation fail to resolve the dispute, the parties shall be free to pursue other dispute resolution avenues (including but not limited to, the Construction Contracts Act 2002 and/or by arbitration in accordance with the Arbitration Act 1996 or its replacement(s)).

25.2 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.

25.3 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.

25.4 Subject to the CGA and any other applicable legislation, BWH shall not be liable for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by BWH of these terms and conditions. Where liability cannot be excluded by law, BWH’s liability shall be limited to the Price of the Works. Nothing in this clause limits any rights the Client may have under the Consumer Guarantees Act 1993 or the Fair Trading Act 1986.

25.5 BWH may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.

25.6 The Client cannot licence or assign without the written approval of BWH.

25.7 BWH may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of BWH’s sub-contractors without the authority of BWH.

25.8 The Client agrees that BWH may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for BWH to provide Works to the Client.

25.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other events beyond the reasonable control of either party. This clause does not apply to a failure by the Client to make a payment to BWH.

25.10 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.

25.11 Fair Trading Act 1986 Compliance: These terms and conditions are intended to comply with the Fair Trading Act 1986 (including amendments in force from 2022). In the event that any provision is found to be unfair or non-compliant with the Act, that provision shall be modified to the minimum extent necessary to comply with the law while preserving the original intent of the parties.

All Invoices are considered as payment claims under the Construction Contracts Act 2002 and Form 1 (below) are part of our Terms of Trade.