Brix Group Terms & Conditions of Trade

1. Definitions

1.1 “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.

1.2 “Brix” means Brix Group Limited T/A Brix Fencing & Retaining, its successors and assigns.

1.3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting Brix 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.

1.4 “Works” means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by Brix 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).

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

1.6 “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.

1.7 “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.

1.8 “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 Brix’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.

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

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 Brix 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, Brix reserves the right to refuse delivery.

2.6 Nothing in these Terms and Conditions shall be construed as creating a relationship of partnership, employer and employee or principal and agent between the Client and Brix. No party has any authority to bind the other or act on its behalf except to the extent expressly provided in this Contract.

2.7 If Brix has been requested to prepare a quote, Brix agrees that there will be no charge for the first hour of any initial consultations (which may include Client discussions, project scoping, research, initial designs/sketches, and analysis, etc.) with the Client. The Client acknowledges and accepts that any initial consultation/design Works performed beyond one (1) hour will be billable at Brix’s standard hourly rate irrespective of whether or not the Works are go ahead.

2.8 These terms and conditions may be meant to be read in conjunction with Brix’s Hire Form, and where the context so permits, the terms ‘Works’ or ‘Materials’ shall include any supply of Equipment, as defined therein.

2.9 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 Brix shall (for the duration of the Works) liaise directly with one (1) authorised representative, and that once introduced as such to Brix, 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 Brix for all additional costs incurred by Brix (including Brix’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 Brix 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 Brix 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 Brix 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 Brix; 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 Brix 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 Brix as a result of the Client’s failure to comply with this clause.

6. Price and Payment

6.1 At Brix’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Brix to the Client in respect of Works performed or Materials supplied; or
(b) Brix’s quoted Price (subject to clause 6.2) which shall be binding upon Brix provided that the Client shall accept Brix’s quotation in writing within thirty (30) days.

6.2 Brix 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. In the event the Client requests changes after commencement of the Services, then Brix (at its sole discretion) shall be entitled not only to vary the Price but also the term of the Contract; 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, inaccurate information/data provided by the Client, change of design, safety considerations, adverse ground conditions, latent soil conditions, prerequisite work by any third party not being completed, remedial work required due to existing workmanship being of a poor quality or non-compliant to the building code, hard rock barriers below the surface, iron reinforcing rods in concrete, or hidden pipes and wiring, etc.), which are only discovered upon commencement of the Works; or
(d) in the event of increases to Brix in the cost of labour or materials which are beyond Brix’s control.

6.3 Variations will be charged based on Brix’s quotation and will be detailed in writing, shown as variations on Brix’s invoice. The Client must respond to any variation submitted by Brix within ten (10) working days. Failure to do so will entitle Brix 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 At Brix’s sole discretion, a non-refundable deposit may be required.

6.5 Time for payment for the Works being of the essence, the Price will be payable by the Client on the date(s) determined by Brix, which may be:
(a) by way of progress payments in accordance with Brix’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;
(b) the date specified on any invoice or other form as being the date for payment; or
(c) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Brix.

6.6 At the agreement of both parties, payment of the Price may be subject to retention by the Client of an amount ("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 defects remedied. Any Retention Money applicable to this Contract must be dealt with in accordance with Subpart 2A - sections 18(a) to 18(i) of the Construction Contracts Amendment Act 2015 and shall not be used other than to remedy defects in the performance of Brix’s obligations under the Contract.

6.7 Payment may be made by cash, electronic/online banking, or by any other method as agreed between the Client and Brix.

6.8 Brix may, at its discretion, allocate any payment received from the Client towards any invoice that Brix determines. On any default by the Client, Brix may reallocate payments previously received and allocated. In the absence of any payment allocation by Brix, payment will be deemed allocated to preserve the maximum value of Brix’s Purchase Money Security Interest (as defined in the PPSA) in the Materials.

6.9 The Client shall not be entitled to set off or deduct from the Price any sums owed or claimed to be owed to the Client by Brix, nor to withhold payment of any invoice due to a dispute, unless the request for payment by Brix is a claim made under the Construction Contracts Act 2002. However, this does not prevent the Client from disputing any invoice.

6.10 Unless otherwise stated, the Price does not include GST. The Client must pay Brix an amount equal to any GST Brix must pay for any supply under this or any other agreement. The Client must pay GST, without deduction or set off, at the same time and on the same basis as the Client pays the Price. The Client must also pay any applicable taxes and duties in addition to the Price unless expressly included.

7. Provision of the Works

7.1 Subject to clause 7.2, Brix is responsible for ensuring that the Works start as soon as reasonably possible.

7.2 The Works’ commencement date may be delayed and the completion date extended in the event that Brix claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Brix’s control, including but not limited to:
(a) delays in the Client's response to Brix's information requests;
(b) changes to the design brief requested by the Client;
(c) any other variation to the Contract; or
(d) any failure by the Client to:
(i) make a selection;
(ii) have the Worksite ready for the Services; or
(iii) notify Brix that the Worksite is ready.

7.3 At Brix’s sole discretion, the cost of delivery may be in addition to the Price.

7.4 Brix may deliver the Works in separate installments, with each installment invoiced and paid according to these terms and conditions.

7.5 The Client must accept delivery of the Materials even if the quantity delivered is slightly greater or lesser than the quantity ordered, provided that:
(a) the discrepancy does not exceed 5%; and
(b) the Price is adjusted proportionally to reflect the discrepancy.

7.6 Any time specified by Brix for delivery of the Works is an estimate only. Brix will not be liable for any loss or damage caused by delays. However, both parties agree to make reasonable efforts to complete the Works as scheduled. If the Client's actions or inactions cause delays, Brix may charge a reasonable fee for rescheduling the Works and/or storing Materials.

7.7 If materials, fittings, or equipment must be stored at the Worksite, the Client must provide a secure storage area and take reasonable precautions to prevent theft, damage, or destruction. If any stored items are lost, stolen, or damaged, the Client is responsible for the cost of repair or replacement.

7.8 Brix is not responsible for rubbish removal or Worksite clean-up. This is the Client’s responsibility.

8. Brix’s Obligations

8.1 Brix warrants that Brix has the necessary skills, competence, and experience to undertake and complete the Works and shall at all times apply such skills, competence and experience in performance of the Works.

8.2 If the Client instructs Brix to change the scope of the Works, Brix shall promptly notify the Client in writing of any variation in Price pursuant to clause 6.2 of this Contract. The Client agrees that additional fees may be payable.

8.3 Brix shall keep full records of the Works provided in the manner determined by Brix and shall provide to the Client with updates with respect to the Works at the time and in the manner determined by Brix in Brix’s absolute discretion.

9. Risk

9.1 If Brix retains ownership of the Materials under clause 13 then:
(a) where Brix 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 Brix’s address; or
(ii) the Materials are delivered by Brix or Brix’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).

(b) where Brix is to both supply and install Materials then Brix 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.

9.2 Notwithstanding the provisions of clause 9.1 if the Client specifically requests Brix to leave Materials outside Brix’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.

9.3 Where Brix gives advice or recommendations to the Client, or the Client’s agent, regarding any aspect of the scope of the Works (including, but not limited to, Client’s design elements, requested changes to the design, product selection, gradient, council directive, etc.), and such advice or recommendations are not acted upon, then Brix shall require the Client or their agent to authorise commencement of the Works in writing and whilst Brix shall use their best endeavors to provide the Works based upon the instructions supplied by the Client, the Client agrees to release and indemnify Brix, their directors, agents, and employees from any and all liabilities arising out of any damage, loss or injury caused by the resulting Materials made or installed to the Client’s designs/specifications where an unknown design fault may be present.

9.4 Where the Client has provided plans, instructions, or specifications (including, but not limited to, soil test, usage types, windage, rainfall, etc.) for Brix to complete the Works, then:
(a) Brix shall be entitled to rely on the accuracy of such plans, specifications and other information provided by the Client; and
(b) the Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, Brix accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information; and
(c) where the Client requests variation to the original design, then Brix shall accept no liability whatsoever for the finished Works being deemed as unsatisfactory to the Client.

9.5 The Client warrants that any part of the Worksite where structures are to be installed will be of sound substructure and that it is able to withstand such installation and that all construction work will be completed as per engineering specifications. If for any reason (including the discovery of latent or unfavorable soil conditions such as liquefaction residue or risk) that Brix, or employees of Brix, reasonably form the opinion that the Client’s Worksite is not suitable for Works to proceed, then Brix shall be entitled to delay Works, (in accordance with the provisions of clause 7.2 above) until Brix is satisfied that it is safe for the Works to proceed. Where consultation with engineers or other appropriate third parties (including, but not limited to, the hire of specialised equipment), the Client agrees to indemnify Brix against all additional costs incurred in such an event, this will be invoiced as a variation in accordance with clause 6.2. Brix shall not be liable for any delays caused, loss, damages, or costs however resulting from an unsafe Worksite.

9.6 The Client acknowledges that:
(a) Brix is only responsible for Materials that are supplied by Brix, and in the event that other items, subsequently fail, the Client agrees to indemnify Brix against any loss or damage to the Materials, or caused by the Materials, or any part thereof howsoever arising;
(b) Materials (including, but not limited to, timber, plants, paint, etc.) supplied may:
(i) exhibit variations in shade tone, colour, texture, markings, veining, surface, and finish, and contain natural fissures, occlusions, and indentations. Brix will make every effort to match batches/samples of the Materials supplied in order to minimise such variations, but shall not be liable in any way whatsoever where such variations occur; and
(ii) fade or change colour over time; and
(iii) expand, contract, or distort as a result of exposure to heat, cold, weather, therefore Brix will accept no responsibility for gaps that may appear during prolonged dry periods; and
(iv) mark or stain if exposed to certain substances; and
(v) be damaged or disfigured by impact or scratching.

9.7 In the event Brix is only supplying Materials and not installing the Materials, Brix shall not be liable for any defect or damage resulting from incorrect or faulty installation carried out by any other third party.

9.8 The Client agrees to indemnify Brix from any damage caused by any other tradesman during and after the completion of the Works. If the Client instructs Brix to rectify any damage caused by any other tradesman, this will become a variation to the original quotation and will be charged at Brix’s normal hourly rate per clause 6.2.

9.9 The Client must be on the Worksite to supervise the marking out of the fence line, placement of boundary pegs and during the installation of the fence. If the Client fails to comply with this clause then Brix accepts no responsibility for installation decisions that need to be made by Brix in the Client’s absence.

9.10 The Client acknowledges that it is their responsibility to remove any existing fence (including existing footings), trees, vines, and shrubs to allow Brix clear access along the proposed fence line prior to commencement of the Works by Brix unless otherwise agreed in writing between Brix and the Client.

9.11 Whilst Brix will take all due care during installation Brix will not accept any responsibility for tiles, pavers or vegetation damaged during installation.

9.12 Brix reserves the right to halt all Works and immediately notify the Client in the event that during the course of the Works Brix discovers:
(a) any undisclosed waste and/or hazardous materials then it shall be the responsibility of the Client to arrange the removal of all such materials. In the event that Brix agrees to remove such materials for the Client then this shall be treated as a variation in accordance with clause 6.2 and shall be in addition to the Price;
(b) discovers any fossils, artefacts or any other remains of geological or archaeological interest then the Client accepts and agrees that all additional costs that may be incurred by Brix as a result of any such delays shall be borne by the Client and shall be treated as a variation in accordance with clause 6.2 above.

10. Product Specifications

10.1 The Client acknowledges that: (a) all descriptive specifications, illustrations, drawings, data, dimensions, ratings and weights stated in Brix’s or manufacturer’s fact sheets, price lists or advertising material, are indicative only and that they have not relied on such information; (b) while Brix may have provided information or figures to the Client regarding the performance of the Materials, the Client acknowledges that Brix has given these in good faith and are estimates based on industry estimates under optimal operating conditions. The water efficiency/output may be less than estimates due to factors out of Brix’s control (including, but not limited to, water pressure, water source, the mineral content of water based on geographical location, etc.).

10.2 Brix reserves the right to substitute comparable Materials (or components of the Materials), and in all such cases Brix will notify the Client in advance of any such substitution.

10.3 The Client acknowledges and accepts that buildings, structures, walls, and fences: (a) can settle (consolidation or movement of soil) over time and may move due to this process; and (b) can be affected by excessive rain, earthquakes and other naturally caused events; and (c) Brix therefore shall be indemnified against any damage that may occur as a result of conditions arising as mentioned in sub-clauses (a) and (b).

10.4 Where fencing is installed on a retaining wall Brix shall not be liable for any movement in the fence due to consolidation, or the movement of soil or any other component of the retaining wall.

11. Client’s Obligations, Responsibilities and Acknowledgements

11.1 The Client shall provide to Brix all documentation and other information as and when requested. The Client acknowledges that the ability of Brix to provide the Works is dependent upon the Client complying with this clause. Should the Client fail to provide any necessary information, the Client shall indemnify Brix from any and all claims in the event it is determined that a fault is resultant due to lack of or no information provided by the Client.

11.2 Unless otherwise agreed to in writing, the Client is responsible for, and shall promptly obtain (taking all reasonable and necessary steps and at their own cost), all approval and consents (whether statutory or otherwise) that are necessary to enable the Works to commence. If Brix agrees to undertake such responsibility on behalf of the Client, then the Client agrees to give Brix all possible assistance, and sign all necessary document/s, to enable Brix to obtain the necessary consents and approvals in a timely manner.

11.3 The Client shall ensure that the Worksite is made available, and that Brix has clear and free access to enable Brix to undertake the Works, and: (a) that such access is suitable to accept the weight of laden trucks, or other equipment as may be deemed necessary by Brix; and: (b) Brix 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 Brix; and (c) the Client shall contact adjoining neighbours and gain their permission to remove any walls or fences on boundaries and unless otherwise agreed, it shall be the Client’s responsibility to organise either temporary fencing and/or security guards to secure the Worksite during the performance of the Works by Brix and shall be liable for all costs associated in taking all reasonable precautions to protect against destruction or damage by way of vandalism or theft. Failure to comply with this clause 11.3 (c) in the event that the Worksite is destroyed or damaged due to vandalism then the cost of repair or replacement shall be borne by the Client.

11.4 Prior to Brix commencing any Works the Client must advise Brix of the precise location of all underground services on the Worksite and clearly mark the same. The underground mains & 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.

11.5 Whilst Brix will take all care to avoid damage to any underground services the Client agrees to indemnify Brix 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 11.4.

11.6 The Client acknowledges and accepts that: (a) it is the Client’s responsibility to have the frost damage mitigation systems maintained on a regular basis and such maintenance must be carried out by a suitably experienced and qualified technician; and (b) Brix is only responsible for Materials that are replaced/supplied by Brix, and in the event that other parts/goods subsequently fail (including but not limited to, any connected components, lack of water, failure of any mechanical component protection functions either manual or automatic or unscheduled power cuts (that are beyond the control of Brix)); and (c) prior to critical frost protection cycles, the Client or the Client’s representative will ensure that regular monitoring and maintenance is carried out on the system.

11.7 Failure to comply with clause 11.6 the Client agrees to indemnify Brix against any loss or damage to the system, or caused by the Materials, or any part thereof howsoever arising.

12. Compliance with Laws

12.1 The Client and Brix 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.

12.2 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.

12.3 Where the Client has supplied products for Brix 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 Brix’s opinion, it is believed that the materials supplied are Non-Conforming products and will not conform with New Zealand regulations, then Brix 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.

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

12.5 If Pseudomonas syringae pv. actinidiae (Psa) or Mycoplasma bovis is present onsite, it is the Client’s responsibility to inform Brix of the same. The Client must provide Brix with the appropriate facilities to comply with local Psa or Mycoplasma decontamination regulations.

12.6 Notwithstanding clause 12.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”), Brix 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.

13. Title

13.1 Brix and the Client agree that ownership of the Materials shall not pass until:
(a) the Client has paid Brix all amounts owing to Brix; and
(b) the Client has met all of its other obligations to Brix.

13.2 Receipt by Brix 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.

13.3 It is further agreed that:
(a) until ownership of the Materials passes to the Client in accordance with clause 13.1 that the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to Brix on request;
(b) the Client holds the benefit of the Client’s insurance of the Materials on trust for Brix and must pay to Brix 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 Brix shall be sufficient evidence of Brix’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with Brix 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 Brix and must pay or deliver the proceeds to Brix 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 Brix and must sell, dispose of or return the resulting product to Brix as it so directs;
(f) unless the Materials have become fixtures the Client irrevocably authorises Brix to enter any premises where Brix believes the Materials are kept and recover possession of the Materials;
(g) Brix 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 Brix; and
(i) Brix may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.

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

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 Brix to the Client and the proceeds from such Materials.

14.2 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 Brix may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, Brix 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 Brix; and
(d) immediately advise Brix 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.

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

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

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

14.6 The Client shall unconditionally ratify any actions taken by Brix under clauses 14.1 to 14.5.

14.7 Subject to any express provisions to the contrary (including those contained in this clause 14), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

15. Security and Charge

15.1 In consideration of Brix 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.

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

15.3 The Client irrevocably appoints Brix and each director of Brix as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Client’s behalf.

16. Defects and Returns in Materials

16.1 The Client shall inspect the Materials on delivery and shall within seven (7) days of delivery (time being of the essence) notify Brix of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Brix 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 Brix has agreed in writing that the Client is entitled to reject, Brix’s liability is limited to either (at Brix’s discretion) replacing the Materials or repairing the Materials.

16.2 Returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 16.1; and
(b) Brix 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) Brix 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.

16.3 Brix may (in its discretion) accept the return of Materials for credit but this may incur a handling fee of twenty percent (20%) of the value of the returned Materials plus any freight.

16.4 Subject to clause 16.1, non-stocklist items or Materials made to the Client’s specifications are under no circumstances acceptable for credit or return.

17. Warranties

17.1 Subject to the conditions of warranty set out in clause 17.2 Brix warrants that if any defect in any workmanship provided by Brix becomes apparent and is reported to Brix within five (5) years of the date of delivery (time being of the essence) then Brix will either (at Brix’s sole discretion) replace or remedy the defect.

17.2 The conditions applicable to the warranty given by clause 17.1 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 Brix; 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 Brix shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered, or overhauled without Brix’s consent.
(c) in respect of all claims Brix 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.

17.3 For Materials not manufactured by Brix, the warranty shall be the current warranty provided by the manufacturer of the Materials. Brix 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.

17.4 In the case of second-hand Materials, the Client acknowledges that full opportunity to inspect the same has been provided and accepts the same with all faults and that no warranty is given by Brix as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. Brix shall not be responsible for any loss or damage to the Materials, or caused by the Materials, or any part thereof however arising.

18. Consumer Guarantees Act 1993

18.1 If the Client is acquiring Materials for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 (“CGA”) do not apply to the supply of Materials by Brix to the Client.

19. Intellectual Property

19.1 Where Brix 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 Brix, and shall only be used by the Client at Brix’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of Brix.

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

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

20. Default and Consequences of Default

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

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

20.3 Further to any other rights or remedies Brix may have under this Contract, if a Client has made payment to Brix, 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 Brix under this clause 20, 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.

20.4 Without prejudice to Brix’s other remedies at law Brix shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Brix shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Brix becomes overdue, or in Brix’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 Brix;
(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.

21. Cancellation

21.1 Without prejudice to any other rights or remedies Brix 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 Brix may suspend or terminate the supply of the Works. Brix will not be liable to the Client for any loss or damage the Client suffers because Brix has exercised its rights under this clause.

21.2 Brix 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 Brix shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to Brix for Works already performed. Brix shall not be liable for any loss or damage whatsoever arising from such cancellation.

21.3 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 Brix as a direct result of the cancellation (including, but not limited to, any loss of profits).

21.4 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.

22. Privacy Policy

22.1 All emails, documents, images or other recorded information held or used by Brix is “Personal Information” as defined and referred to in clause 22.3 and therefore considered confidential. Brix acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 2020 (“the Act”) including Part II of the OECD Guidelines and as set out in the Act. Brix acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by Brix that may result in serious harm to the Client, Brix will notify the Client in accordance with the Act. Any release of such Personal Information must be in accordance with the Act and must be approved by the Client by written consent, unless subject to an operation of law.

22.2 Notwithstanding clause 22.1, privacy limitations will extend to Brix in respect of Cookies where the Client utilises Brix’s website to make enquiries. Brix agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to Brix when Brix sends an email to the Client, so Brix may collect and review that information (“collectively Personal Information”)
If the Client consents to Brix’s use of Cookies on Brix’s website and later wishes to withdraw that consent, the Client may manage and control Brix’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.

22.3 The Client authorises Brix or Brix’s agent to:
(a) access, collect, retain and use any information about the Client;
(i) (including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Client.
(b) disclose information about the Client, whether collected by Brix from the Client directly or obtained by Brix 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.

22.4 Where the Client is an individual the authorities under clause 22.3 are authorities or consents for the purposes of the Privacy Act 2020.

22.5 The Client shall have the right to request (by e-mail) from Brix, a copy of the Personal Information about the Client retained by Brix and the right to request that Brix correct any incorrect Personal Information.

22.6 Brix will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.

22.7 The Client can make a privacy complaint by contacting Brix via e-mail. Brix will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within twenty (20) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Privacy Commissioner at http://www.privacy.org.nz.

23. Suspension of Works

23.1 Where the Contract is subject to section 24A of the Construction Contracts Act 2002, the Client hereby expressly acknowledges that:
(a) Brix 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 6.5 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 Brix by a particular date; and
(iv) Brix has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction Contract.
(b) if Brix 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 Brix exercises the right to suspend work, the exercise of that right does not:
(i) affect any rights that would otherwise have been available to Brix 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 Brix suspending work under this provision;
(d) due to any act or omission by the Client, the Client effectively precludes Brix from continuing the Works or performing or complying with Brix’s obligations under this Contract, then without prejudice to Brix’s other rights and remedies, Brix 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 Brix as a result of such suspension and recommencement shall be payable by the Client as if they were a variation.

23.2 If pursuant to any right conferred by this Contract, Brix suspends the Works and the default that led to that suspension continues un-remedied subject to clause 21.1 for at least ten (10) working days, Brix shall be entitled to terminate the Contract, in accordance with clause 21.

24. Service of Notices

24.1 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.

24.2 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.

25. Trusts

25.1 If the Client at any time upon or subsequent to entering into the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not Brix may have notice of the Trust, the Client covenants with Brix 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 Brix (Brix 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.

26. General

26.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising hereunder, shall be submitted to, and settled by, either adjudication in accordance with section 26 of the Construction Contracts Act 2002 and/or by arbitration in accordance with the Arbitration Act 1996 or its replacement(s).

26.2 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.

26.3 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 Tauranga, New Zealand.

26.4 Subject to the CGA, Brix shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Brix of these terms and conditions (alternatively Brix’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).

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

26.6 The Client cannot licence or assign without the written approval of Brix.

26.7 Brix 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 Brix’s sub-contractors without the authority of Brix.

26.8 The Client agrees that Brix 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 Brix to provide Works to the Client.

26.9 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 event beyond the reasonable control of either party. This clause does not apply to a failure by the Client to make a payment to Brix.

26.10 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.

27. Harvest Services

27.1 Trucking & Fruit Transport
The price for trucking services shall be negotiated and agreed upon once the orchard location and post-harvest destination have been determined.

27.2 Spray/Moisture Disruption
The orchard manager/owner is responsible for notifying Brix Group Ltd (Kieren Thomas/Luke Aldersley) of the moisture conditions within the orchard on the day of harvest. The orchard manager/owner may delegate the decision regarding moisture levels to Brix Group Ltd if preferred. In such cases, Brix Group Ltd will make the decision in accordance with standard practices, prioritising the avoidance of harvesting wet fruit and preventing delays caused by pickers waiting for fruit to dry on-site. The grower acknowledges that any delays caused by insufficient communication or wet fruit may result in additional labour charges for the waiting staff.

27.3 Issues and Resolution
Any issues or concerns regarding Brix Group Ltd’s harvest services must be raised on-site during the harvest. This will allow for the immediate addressal of such issues and any necessary adjustments to meet the needs of the grower. Any issues raised must be brought to Brix Group Ltd’s attention within 24 hours of the completion of the harvest. Notwithstanding the above, Brix Group Ltd does not guarantee a resolution of any issues raised after the completion of the harvest.