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Promoclip Australasia / Design A Gift
(NZ) Limited - Terms & Conditions of Trade
© Copyright – EC Credit Control Limited - 2004
1. Definitions
1.1 “Seller” shall mean Promoclip Australasia /
Design A Gift (NZ) Limited and its successors and
assigns.
1.2 “Buyer” shall mean the Buyer, or any person acting on behalf of
and with
the authority of the Buyer.
1.3 “Guarantor” means that person (or persons), or entity that
agrees herein
to be liable for the debts of the Buyer on a principal debtor basis.
1.4 “Goods” shall have the same meaning as in section 2 of the Sale
of
Goods Act 1908 and are goods supplied by the Seller to the Buyer
(and
where the context so permits shall include any supply of Services as
hereinafter defined).
1.5 “Services” shall mean all services supplied by the Seller to the
Buyer and
includes any advice or recommendations (and where the context so
permits shall include any supply of Goods as defined supra).
1.6 “Price” shall mean the cost of the goods as agreed between the
Seller
and the Buyer subject to clause 4 of this contract.
1.7 “Artwork” shall mean assisting logos to electronic format,
placement and
manipulation of all logos and wording for proofing.
2. Acceptance
2.1 Any instructions received by the Seller from the Buyer for the
supply of
Goods shall constitute acceptance of the terms and conditions
contained
herein.
2.2 Where more than one Buyer has entered into this agreement, the
Buyers
shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Buyer the
terms
and conditions are irrevocable and can only be rescinded in
accordance
with these terms and conditions or with the written consent of the
manager of the Seller.
2.4 None of the Seller’s agents or representatives are authorised to
make
any representations, statements, conditions or agreements not
expressed
by the manager of the Seller in writing nor is the Seller bound by
any
such unauthorised statements.
2.5 The Buyer undertakes to give the Seller not less than seven (7)
days prior
written notice of any proposed change in the Buyer’s name and/or any
other change in the Buyer’s details (including but not limited to,
changes
in the Buyer’s address, facsimile number, or business practice).
3. Goods / Services
3.1 The Goods and/or Services are as described on the invoices,
quotation,
work authorisation or any other work commencement forms as provided
by the Seller to the Buyer.
3.2 The Buyer acknowledges that the Seller will not be held liable
for any
indirect or consequential damages or claims due to any injury caused
by
the Goods during use.
4. Price And Payment
4.1 At the Sellers sole discretion;
(a) The Price shall be as indicated on invoices provided by the
Seller to the
Buyer in respect of Goods supplied; or
(b) The Price of the Goods shall, subject to clause 4.2, be the
Sellers quoted
Price, which shall be binding upon the Seller provided that the
Buyer shall
accept in writing the Sellers quotation within twenty one (21) days.
4.2 Any variation from the plan of scheduled works or specifications
will be
charged for on the basis of the Seller’s quotation and will be shown
as
extras on the invoice. Payment for all extras must be made in full
at their
time of completion.
4.3 At the Seller’s sole discretion a deposit may be required. The
deposit
amount or percentage of the Price will be stipulated at the time of
the
order of the Goods/Services and shall become immediately due and
payable.
4.4 Time for payment for the Goods shall be of the essence and will
be stated
on the invoice, quotation or any other order forms. If no time is
stated
then payment shall be on delivery of the Goods.
4.5 At the Seller’s sole discretion, payment for approved Buyers
shall be due
in full on the 20th each month following the date of the invoice.
4.6 A minimum payment of $50 is required on all supplied artwork;
the fee will
be contra against final invoice. This fee will be non-refundable
should the
quotation not be accepted.
4.7 Payment will be made by cash, or by cheque, or by credit card,
or by
direct credit, or by any other method as agreed to between the Buyer
and
the Seller.
4.8 The Price shall be increased by the amount of any GST and other
taxes
and duties, which may be applicable, except to the extent that such
taxes
are expressly included in any quotation given by the Seller.
5. Delivery Of Goods
5.1 Delivery of the Goods shall be made to the Buyer’s address. The
Buyer
shall make all arrangements necessary to take delivery of the Goods
whenever they are tendered for delivery, or delivery of the Goods
shall be
made to the Buyer at the Seller’s address.
5.2 Delivery of the Goods to a carrier, either named by the Buyer or
failing
such naming to a carrier at the discretion of the Seller for the
purpose of
transmission to the Buyer, is deemed to be a delivery of the Goods
to the
Buyer.
5.3 The costs of carriage and any insurance which the Buyer
reasonably
directs the Seller to incur shall be reimbursed by the Buyer
(without any
set-off or other withholding whatever) and shall be due on the date
for
payment of the Price. The carrier shall be deemed to be the Buyer’s
agent.
5.4 The Buyer shall take delivery of the Goods tendered
notwithstanding that
the quantity so delivered shall be either greater or less than the
quantity
purchased provided that;
(a) such discrepancy in quantity shall not exceed 10%, and
(b) the Price shall be adjusted pro rata to the discrepancy.
5.5 The failure of the Seller to deliver shall not entitle either
party to treat this
contract as repudiated.
5.5 The Seller shall not be liable for any loss or damage whatsoever
due to
failure by the Seller to deliver the Goods (or any of them) promptly
or at
all for any cause whatsoever.
6. Risk
6.1 If the Seller retains property in the Goods nonetheless all risk
for the
Goods passes to the Buyer on delivery.
6.2 If any of the Goods are damaged or destroyed prior to property
in them
passing to the Buyer, the Seller is entitled, without prejudice to
any of its
other rights or remedies under these terms and conditions (including
the
right to receive payment of the balance of the Price for the Goods),
to
receive all insurance proceeds payable in respect of the Goods. This
applies whether or not the Price has become payable under these
terms
and conditions. The production of these terms and conditions by the
Seller is sufficient evidence of the Seller’s rights to receive the
insurance
proceeds without the need for any person dealing with the Seller to
make
further enquiries.
7. Defects/Returns
7.1 The Buyer shall inspect the Goods on delivery and shall within
twenty
four (24) hours of delivery notify the Seller of any alleged defect,
shortage
in quantity, damage or failure to comply with the description or
quote.
The Buyer shall afford the Seller an opportunity to inspect the
Goods
within a reasonable time following delivery if the Buyer believes
the
Goods are defective in any way. If the Buyer shall fail to comply
with
these provisions the Goods shall be conclusively presumed to be in
accordance with the terms and conditions and free from any defect or
damage.
7.2 For defective Goods which the Seller has agreed in writing that
the Buyer
is entitled to reject, the Seller’s liability is limited to either
(at the Seller’s
discretion) replacing the Goods or repairing the Goods provided
that:
(a) the Buyer has complied with the provisions of clause 7.1;
(b) the Goods are returned at the Buyers cost within three (3) days
of the
delivery date;
(c) the Seller will not be liable for Goods which have not been
stored or used
in a proper manner;
(d) the Goods are returned in the condition in which they were
delivered and
with all packaging material, brochures and instruction material in
as new
condition as is reasonable possible in the circumstances.
7.3 Goods printed or made to special order, Buyer specification or
noncatalogue
items are under no circumstances acceptable for credit or
return. Cancellation of orders for printed or special or
non-catalogue
items will definitely not be accepted, once these orders are in
production.
7.4 Whilst every care is taken by the Printer to carry out the
instructions of
the Buyer, it is the Buyers responsibility to undertake a final
proof reading
of the Goods. The Printer shall be under no liability whatever for
any
errors not corrected by the Buyer in the final proof reading. Should
the
Buyers alterations require additional proofs this shall be invoiced
as an
extra.
7.5 The Seller is under no obligation to provide samples of Goods
ordered
other than by virtual (computerised) sample. Whilst every effort
will be
taken by the Seller to match virtual colours with physical colours,
the
Seller will take no responsibility for any variation between virtual
sale
samples and either the virtual sale sample displayed on the Buyer’s
computer and/or the final product. Should a physical sample be
required
this will be provided on request by the Buyer and will be charged
for as
an extra including return freight, the charge will be contra against
final
invoice.
7.6 While every effort will be taken by the Seller to match PMS
colours, the
Seller will take no responsibility for any variation due to
substrates, half
tones and/or detailed graphics between sale samples (including but
not
limited to virtual or physical samples) and the final product.
7.7 The Seller shall not be held liable for inks wearing off through
general
wear and tear.
8. Warranty
8.1 For Goods not manufactured by the Seller the warranty shall be
the
current warranty provided by the manufacturer of the Goods. The
Seller
shall be under no liability whatsoever except for the express
conditions as
detailed and stipulated in the manufacturers warranty.
9. Default & Consequences Of Default
9.1 Interest on overdue invoices shall accrue from the date when
payment
becomes due daily until the date of payment at a compounding rate of
2.5% per calendar month and shall accrue at such a rate after as
well as
before any judgement.
9.2 If the Buyer defaults in payment of any invoice when due, the
Buyer shall
indemnify the Seller from and against all of the Seller’s costs and
disbursements including on a solicitor and own client basis and in
addition all of the Seller’s nominees costs of collection.
9.3 Without prejudice to any other remedies the Seller may have, if
at any
time the Buyer is in breach of any obligation (including those
relating to
payment), the Seller may suspend or terminate the supply of Goods to
the Buyer and any of its other obligations under the terms and
conditions.
The Seller will not be liable to the Buyer for any loss or damage
the Buyer
suffers because the Seller exercised its rights under this clause.
9.4 If any account becomes overdue then the following shall apply:
An
immediate amount of the greater of $50.00 or 10.00% of the amount
overdue shall be levied for administration fees which sum shall
become
immediately due and payable.
9.5 In the event that:
(a) any money payable to the Seller becomes overdue, or in the
Seller’s
opinion the Buyer will be unable to meet its payments as they fall
due, or;
(b) the Buyer becomes insolvent, convenes a meeting with its
creditors or
proposes or enters into an arrangement with creditors, or makes an
assignment for the benefit of its creditors, or;
(c) a receiver, manager, liquidator (provisional or otherwise) or
similar person
is appointed in respect of the Buyer or any asset of the Buyer,
then without prejudice to the Seller’s other remedies at law
(i) the Seller shall be entitled to cancel all or any part of any
order of
the Buyer which remains unperformed in addition to and without
prejudice to any other remedies; and
(ii) all amounts owing to the Seller shall, whether or not due for
payment, immediately become due and payable.
10. Title
10.1 It is the intention of the Seller and agreed by the Buyer that
property in
the goods shall not pass until:
(a) The Buyer has paid all amounts owing for the particular Goods,
and
(b) The Buyer has met all other obligations due by the Buyer to the
Seller in
respect of all contracts between the Seller and the Buyer, and that
the
Goods, or proceeds of the sale of the Goods, shall be kept separate
until
the Seller shall have received payment and all other obligations of
the
Buyer are met.
10.2 It is further agreed that:
(a) Until such time as ownership of the Goods shall pass from the
Seller to
the Buyer the Seller may give notice in writing to the Buyer to
return the
Goods or any of them to the Seller. Upon such notice the rights of
the
Buyer to obtain ownership or any other interest in the Goods shall
cease.
(b) If the Buyer fails to return the Goods to the Seller then the
Seller or the
Seller’s agent may enter upon and into land and premises owned,
occupied or used by the Buyer, or any premises as the invitee of the
Buyer, where the Goods are situated and take possession of the
Goods,
without being responsible for any damage thereby caused.
11. Consumer Guarantees Act 1993
11.1 This agreement is subject, in all cases except where the Buyer
is
contracting within the terms of a trade/business (which cases are
specifically excluded), to the provisions of the Consumer Guarantees
Act
1993
12. Security & Charge
12.1 Notwithstanding anything to the contrary contained herein or
any other
rights which the Seller may have howsoever:
(a) Where the Buyer and/or the Guarantor (if any) is the owner of
land, realty
or any other asset capable of being charged, both the Buyer and/or
the
Guarantor agree to mortgage and/or charge all of their joint and/or
several interest in the said land, realty or any other asset to the
Seller or
the Seller’s nominee to secure all amounts and other monetary
obligations payable under the terms and conditions. The Buyer and/or
the Guarantor acknowledge and agree that the Seller (or the Seller’s
nominee) shall be entitled to lodge where appropriate a caveat,
which
caveat shall be released once all payments and other monetary
obligations payable hereunder have been met.
(b) Should the Seller elect to proceed in any manner in accordance
with this
clause and/or its sub-clauses, the Buyer and/or Guarantor shall
indemnify
the Seller from and against all the Seller’s costs and disbursements
including legal costs on a solicitor and own client basis.
(c) To give effect to the provisions of clause [11, 12.1(a) to (b)]
inclusive
hereof the Buyer and/or the Guarantor (if any) do hereby irrevocably
nominate constitute and appoint the Seller or the Seller’s nominee
as the
Buyer’s and/or Guarantor’s true and lawful attorney to execute
mortgages
and charges (whether registerable or not) including such other terms
and
conditions as the Seller and/or the Seller’s nominee shall think fit
in
his/her/its/their absolute discretion against the joint and/or
several interest
of the Buyer and/or the Guarantor in any land, realty or asset in
favour of
the Seller and in the Buyer’s and/or Guarantor’s name as may be
necessary to secure the said Buyer’s and/or Guarantor’s obligations
and
indebtedness to the Seller and further to do and perform all
necessary
and other acts including instituting any necessary legal
proceedings, and
further to execute all or any documents in the Seller’s absolute
discretion
which may be necessary or advantageous to give effect to the
provisions
of this clause.
13. Intellectual Property
13.1 Where the Seller has designed or drawn Artwork for the Buyer,
then the
copyright in those designs and drawings shall remain vested in the
Seller,
and shall only be used by the Buyer at the Seller’s discretion.
13.2 Conversely, in such a situation, where the Buyer has supplied
drawings,
the Seller in its sale conditions may look for an indemnity (the
specifications and design of the Goods (including the copyright,
design
right or other intellectual property in them) shall as between the
parties be
the property of the Seller).
13.3 Where any designs, logo’s, artwork or specifications have been
supplied
by the Buyer for manufacture by or to the order of the Seller then
the
Buyer warrants that the use of these design, logo’s artwork or
specifications for the manufacture, design or branding of the Goods
shall
not infringe the rights of a third party.
13.4 The Buyer agrees to accept any liability for copyright
infringement
resulting from any printed order.
13.5 When design, style, type or layout is left to the Sellers
judgement, then
the Buyer makes alterations to the copy this will be invoiced as an
extra
at a rate as determined by the Seller.
14. Cancellation
14.1 The Seller may cancel these terms and conditions or cancel
delivery of
Goods and Services at any time before the Goods are delivered by
giving
written notice. On giving such notice the Seller shall promptly
repay to
the Buyer any sums paid in respect of the Price for those Goods. The
Seller shall not be liable for any loss or damage whatsoever arising
from
such cancellation.
14.2 Cancellation of a contract by the Buyer shall under no
conditions relieve
the Buyer of its contractual obligations. Where possible the Seller
shall
try and accommodate the Buyers wishes subject to the following
cancellation fees becoming immediately due and payable to the
Seller:
(a) cancellation of branded Goods – A fee equal to 100% of the
contract
price; and
(b) cancellation of unbranded Goods – A fee equal to the actual
costs
incurred by the Seller.
15. Privacy Act 1993
15.1 The Buyer and the Guarantor/s (if separate to the Buyer)
authorises the
Seller to collect, retain and use any information about the Buyer,
for the
purpose of assessing the Buyers creditworthiness or marketing any
Goods and Services provided by the Seller to any other party.
15.2 The Buyer authorises the Seller to disclose any information
obtained to
any person for the purposes set out in clause 15.1
15.3 Where the Buyer is a natural person the authorities under
(clause 15.1 &
15.2) are authorities or consents for the purposes of the Privacy
Act
1993.
16. Buyers Disclaimer
16.1 The Buyer hereby disclaims any right to rescind, or cancel the
contract or
to sue for damages or to claim restitution arising out of any
misrepresentation made to him by any servant or agent of the Seller
and
the Buyer acknowledges that he buys the Goods relying solely upon
his
own skill and judgement and that the Seller shall not be bound by
nor
responsible for any term, condition, representation or warranty
other than
the warranty given by the Manufacturer which warranty shall be
personal
to the Buyer and shall not be transferable to any subsequent Buyer.
17. Contractual Remedies Act
17.1 The provisions of the Contractual Remedies Act 1979 shall apply
to this
contract as if Section 15(d) of the Act which states that nothing in
the Act
shall affect the Sale of Goods Act 1908, were omitted from the
Contractual Remedies Act 1979.
18. Unpaid Sellers Rights To Dispose Of Goods
18.1 In the event that:
(a) the Seller retains possession or control of the Goods; and
(b) payment of the Price is due to the Seller; and
(c) the Seller has made demand in writing of the Buyer for payment
of the
Price in terms of this contract; and
(d) the Seller has not received the Price of the Goods,
then, whether the property in the Goods has passed to the Buyer or
has
remained with the Seller, the Seller may dispose of the Goods and
may
claim from the Buyer the loss to the Seller on such disposal.
19. Lien
19.1 Where the Seller has not received or been tendered the whole of
the
price, or the payment has been dishonoured, the Seller shall have:
(a) a lien on the goods;
(b) the right to retain them for the price while the Seller is in
possession of
them;
(c) a right of stopping the goods in transit whether or not delivery
has been
made or ownership has passed; and
(d) a right of resale,
(e) the foregoing right of disposal,
provided that the lien of the Seller shall continue despite the
commencement of proceedings or judgement for the price having been
obtained
20. General
20.1 If any provision of these terms and conditions shall be
invalid, void or
illegal or unenforceable the validity existence, legality and
enforceability
of the remaining provisions shall not be affected, prejudiced or
impaired.
20.2 All Goods and Services supplied by the Seller are subject to
the laws of
New Zealand and the Seller takes no responsibility for changes in
the law
that affect the Goods or Services supplied.
20.3 The Seller shall be under no liability whatsoever to the Buyer
for any
indirect loss and/or expense (including loss of profit) suffered by
the
Buyer arising out of a breach by the Seller of these terms and
conditions.
20.4 In the event of any breach of this contract by the Seller the
remedies of
the Buyer shall be limited to damages. Under no circumstances shall
the
liability of the Seller exceed the Price of the Goods.
20.5 Neither party shall be liable for any default due to any act of
God,
terrorism, war, strike, lock out, industrial action, flood, storm or
other
event beyond the reasonable control of either party.
20.6 The Buyer shall not set off against the Price amounts due from
the Seller.
20.7 The Seller may license or sub-contract all or any part of its
rights and
obligations without the Buyer’s consent.
20.8 The Seller reserves the right to review these terms and
conditions at any
time and from time to time. If, following any such review, there is
to be
any change in such terms and conditions, that change will take
effect
from the date on which the Seller notifies the Buyer of such change.
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