BAILEY ENGINEERING 2021 LIMITED
TERMS AND CONDITIONS OF SUPPLY
Interpretation
In these Terms, the following words have the following special meanings:
"Bailey Engineering" means Bailey Engineering 2021 Limited (Company Number 8171808) and any of its related companies
(as defined in the Companies Act 1993) from time to time; and
"Contract" means the agreement between you and Bailey Engineering f
or the Supply formed on acceptance of a
Quotation, which contract shall incorporate these Terms, the terms as stated in the Quotation, and any
Variations from time to time;
"Custom Goods" Means Goods made on order by Bailey Engineering for the Customer. "Goods" means goods and materials supplied by us to you at any time as part of the Supply;
"PPSA" means the Personal Property Securities Act 1999;
"Quotation" means a quotation for the Supply on the terms set out on the quotation, the documents accompanying
the quotation, and these Terms, including the Price which the Customer will be charged for the Supply;
"Ready Made Goods" means Goods that have been pre-made by Bailey Engineering that are available for Purchase by the
Customer. "Repairs" means repair work done on an item belonging to the Customer by Bailey Engineering, whether a weld
repair or otherwise. "Services" means the supply of services by Bailey Engineering for and manufacturing of Goods as part of the Supply. "Supply" means all services supplied by us to you at any time and, except where the context otherwise requires,
includes the Goods;
"Terms" means these terms of trade (as amended from time to time);
"Customer" means the person to whom the Quotation is addressed / the person to whom the Supply is made. The terms and expressions used in clause 10 have the special meanings given to them in, or by virtue of, the PPSA.
1. These Terms are applicable to the Supply by Bailey Engineering to you. No other terms, conditions or deviations from these
terms and conditions shall be binding unless accepted in writing by an authorised representative of Bailey Engineering. In the
event of a conflict between these terms and conditions and any accompanying documentation, the terms and conditions of
the accompanying documentation shall prevail.
2. If the Supply includes Custom Goods, Bailey Engineering shall produce a Quotation for the Customer for the Supply of the
Custom Goods. The Quotation shall be subject to the clarifications and exclusions set out in the Quotation. The Quotation will
constitute an offer to Supply and shall remain open for a period of fourteen (14) days from date of the Quotation, time being
of the essence, after which the offer to Supply shall be deemed to have been automatically revoked.
2.2. The Customer shall accept the Quotation by:
2.2.1. signing an acceptance form accompanying the Quotation and signing a copy of any drawings, plans, and
specifications attached to the Quotation, if provided; or
2.2.2. emailing Bailey Engineering to confirm that the Quotation has been accepted; or
2.2.3. an instruction (whether verbal or in writing) from the Customer for Bailey Engineering to begin the Supply in
accordance with the Quotation. The acceptance of the Quotation in the manner specified in this clause shall constitute a binding Contract and acceptance of
the terms and conditions contained herein. Quotation and Acceptance – Repairs
2.3 If the Supply includes Repairs, Bailey Engineering shall produce either a written or verbal quotation to the Customer for the
Repairs. The Quotation shall be subject to any clarifications and exclusions as set out in the Quotation. The Quotation will
constitute an offer to complete the Repairs. The Quotation for Repairs shall remain open for fourteen (14) days from date of
the Quotation, time being of the essence, after which the offer to Supply shall be deemed to have been automatically revoked
2.4 If the Supply includes Repairs and the necessary repair has not been viewed by Bailey Engineering prior to the Quotation,
Bailey Engineering reserves the right to revise the Quotation for the Repairs, so long as the Customer accepts the revised
Quotation (by signing the revised Quotation, emailing Bailey Engineering to accept the Revised Quotation, or verbally
accepting the Revised Quotation) prior to Bailey Engineering commencing the Repairs.
2.4 The acceptance of the Repairs Quotation, or any Revised Quotation in the manner specified in this clause 2 shall constitute
a binding Contract and acceptance of the terms and conditions contained herein.
3. Variations
3.1. Except as expressly provided in these terms and conditions, all variations, or alterations to the scope of the Supply shall be
binding on the parties, including any adjustment to the Price. Any changes required as a result of information or documentation
provided by the Customer or their agent to Bailey Engineering, where Bailey Engineering has relied on this information or
documentation provided and where the cost of the Supply will be effected upwards, such a change in supply will be treated
as a variation to the Supply. For the avoidance of doubt, any incorrect measurements or information given to Bailey
Engineering by the Customer for Custom Goods may result in a variation for the Customer and an adjustment in the Price.
4. Cancellation
4.1. In the event that the Customer wishes to cancel the Contract for the Supply at any time after acceptance of the Quotation, the
Customer shall pay all actual and reasonable costs and expenses incurred by Bailey Engineering together with a reasonable
administration fee, provided that the Customer shall not be entitled to cancel the Contract once the Supply has commenced
without the prior consent in writing of Bailey Engineering.
4.2. Bailey Engineering shall, without any liability, and without any prejudice to any other right it has in law or equity, have the right
by notice to suspend or cancel in whole or in part any Contract for the Supply if the Customer fails to pay any money owing
after the due date, or if the Customer commits an act of bankruptcy as defined in section 19 of the Insolvency Act 1967, or if
liquidation proceedings are commenced in relation to the Customer, or if the Customer shall otherwise become bankrupt or
insolvent, or if any other event occurs which evidences a lack of credit worthiness or insolvency on the part of the Customer.
4.3. Any cancellation or suspension by Bailey Engineering pursuant to this clause 4 shall not affect Bailey Engineering's claim for
money due at the time of cancellation or suspension or for damages for any breach of any terms of this Contract or the
Customer’s obligations to Bailey Engineering under these terms and conditions.
5. Price
5.1. The Price of the Supply shall be the Price stated in the Quotation for Custom Goods or Repairs and subject to variation in
accordance with clause 3 and this clause 5 (the "Price"). The Price for Ready Made Goods shall be as stated in the online
store of Bailey Engineering, or as stated in writing by an authorised representative of Bailey Engineering. The Price quoted
for the Supply excludes GST. GST shall be payable by the Customer in addition to the Price quoted.
5.2. Where no Price is stated in writing or agreed, the Supply shall be deemed to be at the current Price applying at the date upon
which the invoice for the Goods or Supply is issued to the Customer.
5.3. Notwithstanding anything contained in this clause or the Quotation, the Price of the Supply may be increased by the amount
of any reasonable increase in cost of supply of the goods or services between the date upon which the Quotation is delivered
to the Customer and the date upon which the Supply occurs and where such increase is beyond the reasonable control of
Bailey Engineering.
5.4. If the Supply is Repairs, and the Repairs are to be conducted away from the premises of Bailey Engineering at the request of
the Customer, the Price stated in the Quotation assumes free use of power, water and toilet facilities, along with removal of
rubbish from a designated point on site. If none of these amenities are available, Bailey Engineering reserves the right to
increase the Price accordingly.
5.5. Unless otherwise stated, the Price stated in the Quotation assumes normal hours of work, being 8:00am – 5:00pm Monday –
Friday. If it is necessary for Bailey Engineering to complete work or utilise equipment outside of normal hours (unless elected
solely by Bailey Engineering) because the Customer requests urgent Custom Goods or Repairs, then an overtime labour rate
may be chargeable.
5.6. Unless otherwise stated, the Price contained in the Quotation shall include:
5.6.1. all costs related to health and safety obligations to be discharged by Bailey Engineering;
5.6.2. required plant and equipment necessary for the Supply (unless such plant and equipment is excluded from the
Quotation); and
5.6.3. travel costs of Bailey Engineering (if applicable).
5.7. Where the Quotation includes an estimate, or a Price which relates to the costs to Bailey Engineering (i.e.: a costs +
agreement) the Price shall be calculated in accordance with the terms stated in the Quotation, or shall be based on the current
market rate for the Supply at the time, as determined by Bailey Engineering. Where the Quotation is based on an estimate, or
a cost + Price basis:
5.7.1. The estimate will be only a best endeavours estimate of the Price, and Bailey Engineering will not be bound by the
estimate given, but will be able to charge in accordance with clause 5.7;
5.7.2. Bailey Engineering will use its best endeavours to advise you when it becomes aware that the estimate will be
exceeded, but Bailey Engineering will continue with the Supply and will be entitled to charge in accordance with clause
5.7; and
5.7.3. Where Bailey Engineering becomes aware that the estimate will be exceeded by 50%, Bailey Engineering will seek
instructions from you as to whether you wish Bailey Engineering to continue with the Supply, and Bailey Engineering
will cease the Supply if it is reasonable for Bailey Engineering to do so, and if Bailey Engineering will not incur losses
and / or unrecoverable costs due to the ceasing of the Supply.
5.8. Where the Quotation and the Price include a PC Sum, the PC Sum will only be an estimate of the cost. If the actual cost of
the Supply selected or approved by you turns out to be more than the value of the PC sum stipulated in the Quotation, then
the Price will be adjusted upwards to reflect the increase between the PC sum and the actual cost.
6. Payment
6.1. Payment for the Supply shall be either (at the discretion of Bailey Engineering) on completion of the Supply (cash on delivery)
or payment on invoice in full by the 20th of the month after the month in which the invoice was issued, unless otherwise stated
in the Quotation.
6.2. Bailey Engineering reserves the right to charge interest on all overdue accounts at 15% per annum from the due date for
payment until the date when payment is actually made and all expenses and costs (including legal costs as between solicitor
and client and debt collection fees) incurred by Bailey Engineering in obtaining or attempting to obtain a remedy for the
Customer's failure to pay.
6.3. The Customer may not deduct or withhold any amount (whether by way of a set-off, counterclaim or otherwise) from any
money owing to Bailey Engineering.
6.4. The Customer expressly acknowledges that no retentions shall apply unless provision for a retention is incorporated within
the Quotation.
6.5. Failure by Bailey Engineering to enforce any of the terms and conditions contained in this clause 6 shall not be deemed to be
a waiver of any of the rights or obligations Bailey Engineering has under the Contract.
7. Commencement and Completion
7.1. The Customer acknowledges that any estimates as to the time frames for the commencement and completion of the Supply
are approximate only. Bailey Engineering will use all reasonable endeavours to ensure the Supply is commenced and
completed within the time frame specified but shall not be liable for any delay or failure to do so. Bailey Engineering shall not
be responsible for any delays caused by separate or nominated subcontractors. Should any delays occur the Customer agrees
that all costs incurred by Bailey Engineering and resulting from such delays will be charged as a variation to the Contract
Price.
8. Repair of Defects -
8.1. Bailey Engineering will carry out any workmanship that forms part of the Supply to a standard of reasonable care and skill.
8.2. Bailey Engineering shall at its sole cost rectify any defects in the workmanship of Custom Goods or Ready Made Goods
purchased from the Bailey Engineering shop which are notified to Bailey Engineering within ninety (90) days of completion of
the Supply and within a reasonable time of receiving written notification of those defects. Bailey Engineering shall not be liable
under this clause to remedy:
8.2.1. defects or damage caused by work undertaken by the Customer or the any of the Customer’s contractors; or
8.2.2. defects or damage caused by abnormal, or unusual use by the Customer; or
8.2.3. defects or damage caused by the failure to undertake regular maintenance on the Goods.
8.3. Bailey Engineering provides no warranty on Repairs and clause 8.2 does not apply in relation to Repairs.
9. Risk and Insurance
9.1. Any Goods supplied by Bailey Engineering shall be at the sole risk of the Customer from the time the Goods are collected by
the Customer or any agent of the Customer from Bailey Engineering. The Customer shall be solely responsible for arranging
suitable insurance to provide insurance cover for all associated risks.
10. Ownership
10.1. Ownership of any goods and/or materials supplied as part of the Supply shall not pass to the Customer until all amounts owing
by the Customer to Bailey Engineering in respect of the goods and/or materials have been paid in full.
10.2. The Customer acknowledges and agrees that by agreeing to these terms & conditions, the Customer grants a Purchase
Money Security Interest to Bailey Engineering, as that term is defined in the Personal Property Securities Act 1999 ("PPSA"),
in all goods and/or materials supplied by Bailey Engineering to the Customer.
10.3. The Customer irrevocably undertakes to sign any further documents and/or provide any further information (which information
the Customer warrants to be complete, accurate and up-to-date in all respects) which Bailey Engineering may reasonably
require to enable registration of a financing statement or financing change statement on the Personal Property Securities
Register. The Customer shall not agree to allow any person to register a financing statement over any of the goods supplied
by Bailey Engineering without the prior written consent of Bailey Engineering and will immediately notify Bailey Engineering
in writing if the Customer becomes aware of any person taking steps to register a financing statement in relation to such
goods.
10.4. The Customer waives its rights to:
10.4.1. receive a copy of any verification statement;
10.4.2. receive a copy of any financing change statement:
10.5. If the Goods are for the Customer’s business use, the Customer agrees, to the extent Part 9 of the PPSA applies, that it will
have no rights under Part 9 of the PPSA
10.6. The Customer irrevocably grants to Bailey Engineering the right to enter upon the Customer’s property or premises, without
notice, and without being in any way liable to the Customer or to any third party, if Bailey Engineering has cause to exercise
any of Bailey Engineering ’s rights under section 109 of the PPSA, and the Customer shall indemnify Bailey Engineering from
any claims made by any third party as a result of such exercise.
10.7. Bailey Engineering and the Customer agree that nothing in sections 114(1)(a), 116, 117(1)(c), 119, 120(2), 121, 125, 126,
127, 129, 131, and 132 of the PPSA will apply to these terms and conditions, or the security interest under these terms and
conditions.
10.8. The Customer will be responsible to Bailey Engineering for any costs or damages incurred in reclaiming and disposing of the
unpaid goods and/or materials. Such costs include but are not limited to loss in value, cost or repossession, damaged premises
and recovery, storage, resale and legal costs, on a solicitor and client basis. These costs shall be recoverable as a debt due
to Bailey Engineering by the Customer.
11. Warranty and Liability
11.1. The warranties, descriptions, representations, or conditions whether implied by law, trade, custom or otherwise are, and all
other liability of Bailey Engineering, whether in tort (including negligence), Contract or otherwise is, expressly excluded to the
fullest extent permitted by law. In particular, where the Supply for the purposes of a business, (as provided in section 2 and
43 of the Consumer Guarantees Act 1993), that Act shall not apply.
11.2. In so far as Bailey Engineering is able, Bailey Engineering will assign all manufacturer / supplier warranties and will assist the
Customer in obtaining the benefit of any such all manufacturer / supplier warranties provided that Bailey Engineering will not
be required to expend funds or commence proceedings against any manufacturer or supplier.
11.3. Bailey Engineering reserves the right to limit the duration of a warranty due to the nature of the Supply being provided.
11.4. Insofar as Bailey Engineering may be liable, notwithstanding anything contained in these terms and conditions, to the extent
permitted by law the total liability of the Bailey Engineering whether in tort (including negligence), Contract or otherwise for
any loss, damage or injury arising directly or indirectly out of completion of the Supply or any other breach of Bailey
Engineering’s obligations is limited to the lesser of:
11.4.1. the Price of goods and/or materials complained of;
11.4.2. the cost of completing any necessary repairs/remedial work; or
11.4.3. the actual loss or damage suffered by the Customer.
11.5. Except where statue expressly requires otherwise, Bailey Engineering is not liable in any event for any loss of profits,
consequential, indirect, or special damage, loss or injury of any kind suffered by the Customer or any other person.
11.6. This clause 11 shall survive termination of the Contract.
12. Customer Obligations
12.1. The Customer must:
12.1.1. Deal with Bailey Engineering in good faith and disclose to Bailey Engineering any information that may be material
to the Supply;
12.1.2. Ensure that all information provided to Bailey Engineering is accurate;
12.1.3. Co-operate with Bailey Engineering on all matters in relation to the Supply;
12.1.4. Provide Bailey Engineering and Bailey Engineering 's employees, agents and subcontractors, with access to the
Customer's premises, office accommodation and such other facilities as reasonably necessary (where relevant)
for Bailey Engineering to be able to carry out the Supply;
12.1.5. Provide Bailey Engineering with all information and materials Bailey Engineering may reasonably require to deliver
the Supply, and ensure that such information is accurate in all respects;
12.1.6. (where relevant) prepare the Customer's premises for the Supply; and
12.1.7. Obtain and maintain all necessary licences, equipment, documents and property ("Bailey Engineering Materials")
at the Customer's premises in safe custody and at the Customer's risk, maintain them in good condition until they
are returned to Bailey Engineering and not dispose of or use them other than in accordance with written instructions
or authorisation from Bailey Engineering.
12.2. If the performance of Bailey Engineering obligations in respect of the Supply is prevented or delayed by any act or omission
of the Customer, or failure to perform any relevant obligation of the Customer ("Default"):
12.2.1. Bailey Engineering shall, without limiting the other rights and remedies available, have the right to suspend
performance of the Supply until the Customer remedies the default. Bailey Engineering shall rely on the default to
relieve Bailey Engineering from the performance of any of the obligations under the Contract to the extent that the
Default prevents or delays such performance;
12.2.2. Bailey Engineering shall not be liable for any costs or losses sustained or incurred by the Customer arising directly
or indirectly from Bailey Engineering's failure to delay to perform these obligations; and
12.2.3. The Customer must reimburse Bailey Engineering on a written demand for any costs or losses sustained or incurred
by Bailey Engineering arising directly or indirectly from the Default.
13. Collection and Use of Information
13.1. The Customer authorises Bailey Engineering to collect, retain and use any information about the Customer for the purpose of
assessing the Customer’s creditworthiness and/or enforcing any rights under this Contract.
13.2. The Customer authorises Bailey Engineering to disclose any information obtained to any person for the purposes set out in
this clause. Where the Customer is a natural person, the authorities under this clause are authorities or consents for the
purposes of the Privacy Act 1993.
14. Intellectual Property Rights
14.1. All intellectual property rights in or arising out of or in connection with the Supply shall be owned by Bailey Engineering.
15. Confidentiality
15.1. The Customer must keep in strict confidence all technical and commercial know-how, specifications, inventions, processes,
or initiatives which are of a confidential nature and have been disclosed to you by Bailey Engineering's employees, agents or
subcontractors, and any other confidential information concerning Bailey Engineering's business or our products or Supply
which the Customer may obtain. The Customer shall restrict such disclosure of such confidential information to such of its
employees, agents or subcontractors who need to know it for the purpose of discharging obligations under this Contract, and
ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those
which bind the Customer. This clause 15 shall survive termination of the Contract.
16. Miscellaneous
16.1. Bailey Engineering shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond
its control.
16.2. If any provision of this Contract shall be invalid, void or illegal or unenforceable, the validity, existence, legality and
enforceability of the remaining provisions shall not be affected, prejudiced or implied.
16.3. The Customer may not assign any of its rights or obligations under this Contract without the prior written consent of Bailey
Engineering.
17. Personal Guarantee
17.1. In consideration for Bailey Engineering agreeing to complete the Supply at the request of the Customer, where the Customer
is a company or trust, the directors or trustees signing this Contract also sign this Contract in their personal capacity and jointly
and severally personally undertake as principal debtors to Bailey Engineering the payment of any and all moneys owed by
the Customer to Bailey Engineering and indemnify Bailey Engineering against non-payment by the Customer.
18. Governing Law
18.1. The within terms and conditions shall be governed by and construed in accordance with the laws of New Zealand and the
parties shall submit to the exclusive jurisdiction of the New Zealand Courts.
19. Agency
19.1. The Customer authorises Bailey Engineering to contract, either as principal or agent, for the Supply, or any part thereof ("subcontract").
19.2. Where Bailey Engineering enters into a sub-contract, the Customer agrees to pay any amounts due under that sub-contract.
19.3. Any list of proposed subcontractors supplied by Bailey Engineering is provided on a without prejudice basis and Bailey
Engineering reserves the exclusive right to change subcontractors without adjustment to the Quotation.
20. Dispute Resolution
20.1. In the event of a dispute or disagreement arising between Bailey Engineering and the Customer the party with a grievance
may give written notice to the other party specifying the nature of the dispute or disagreement, the remedy sought and requiring
that the dispute or disagreement be determined and settled in accordance with this clause.
20.2. Any notice or other communication given to a party under, or in connection with, this Contract shall be in writing, addressed
to that party at its registered office or such other address as that party may have specified to the other party in writing in
accordance with this clause, and shall be delivered personally, or sent by pre-paid fast post, commercial courier, facsimile or
email. A notice or other communication shall be deemed to have been received:
20.2.1. If delivered personally, when left at the address referred to in this clause;
20.2.2. If sent by pre-paid fast post, at 9:00am on the second working day after posting;
20.2.3. If delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed, or
20.2.4. If sent by fax or email, one working day after transmission. The provisions in this clause shall not apply to the service of any proceedings or other documents in any legal action.
20.3. On receipt of the notice, the parties shall each appoint a representative who has authority to determine the grievance or
dispute, and those two representatives shall meet as soon as reasonably possible to see if they can determine the grievance. All discussions, meetings and correspondence between the two representatives shall be deemed without prejudice and without
concession of liability and shall not be used by either party in any later proceedings unless:
o Both parties agree, or
o The two representatives reach agreement, but one party fails to honour such agreement.
20.4. If the two representatives cannot within fourteen (14) days of being appointed reach agreement on how the grievance or
dispute is to be determined, the parties shall refer the dispute to an independent expert who is acceptable to both parties. If
the parties cannot or do not agree on an independent expert within three (3) days of the first suggestion of a suitable person,
either party may ask the President of the New Zealand Law Society to nominate a person to act as an independent expert
and the first person so nominated who is able and willing to be appointed shall be deemed the independent expert for the
purposes of this clause. The independent expert shall:
o Set his or her own rules and procedure for the resolution of the grievance or disagreement;
o At all times act in good faith and in an unbiased way;
o Promptly hear and determine the dispute; and
o Provide a written decision (with reasons for that decision) if requested by either party.
20.5. The independent expert’s:
o Decision shall be binding on both parties; and
o Costs shall be paid equally by the parties unless the independent expert decides otherwise in his or her decision.
20.6. Notwithstanding anything contained in any dispute resolution clause, disputes in excess of ten thousand dollars ($10,000.00)
shall be referred at Bailey Engineering’s sole discretion to arbitration under the Arbitration Act 1996 or any subsequent Act
passed in its place.
21. Mortgage
21.1. The Customer agrees that while the Customer owes Bailey Engineering any sum under the Contract (whether disputed or
otherwise) the Customer shall upon written demand being made by Bailey Engineering at any time but before payment in full
is made to Bailey Engineering, execute a Memorandum of Mortgage ("Mortgage") over any real property owned by the
Customer from time to time in favour of Bailey Engineering (to be prepared by Bailey Engineering’s solicitors at the Customer’s
cost), for the amount equivalent to the unpaid balance owing plus any interest and costs owing thereon until paid in full.
21.2. The terms of such mortgage shall be collateral to the terms hereof and payment in full of the amounts owing to Bailey
Engineering hereunder shall operate as a full discharge of the mortgage. Bailey Engineering agrees not to make demand on
the Customer to execute such a mortgage unless any of the following occur:
21.2.1. Failures to make payment on the due date;
21.2.2. Any composition with creditors, act of bankruptcy, winding up or receivership of the Customer.
21.3. The Mortgage referred to in this clause 21 hereof shall be the ADLS form approved by the Registrar General of Land
2018/4345, and the covenants of the said form whether executed by the Customer or not shall be deemed to be included. The
Customer hereby authorises Bailey Engineering to lodge and maintain a Caveat against the title to the subject property for
the protection of the agreement to mortgage described above should Bailey Engineering in its absolute discretion consider it
necessary to lodge such a Caveat. The Customer hereby grants to Bailey Engineering an irrevocable power of attorney in
relation to the subject property to execute the mortgage referred to in this clause 21 hereof should the mortgage not be
executed by the Customer for any reason whatsoever PROVIDED THAT Bailey Engineering will not execute a mortgage as
attorney for the Customer unless Bailey Engineering has requested in writing that the Customer execute the mortgage
pursuant to the terms of this agreement and the Customer has failed to execute such a mortgage within five (5) working days
of such request.
