1.1 “the Company” means Auckland Digital Print Limited;
1.2 “the Buyer” means the person buying the Goods from the Company;
1.3 “the Goods” means the Goods being purchased by the Buyer from the Company;
1.4 “the Contract” means the Contract between the Company and the Buyer for the purchase and/or storage of the Goods;
1.5 “the date of the Contract” means:
(a) where the Contract arises from an order placed by the Buyer, the date of acceptance of the order by the Company, or
(b) where the Contract arises from a quotation given by the Company, the date upon which written notification of acceptance of the quotation is received by the Company, or where no written notification of acceptance of the quotation is received by the Company, the date of such other form of acceptance as the Company in its discretion determines to treat as a valid acceptance.
1.6 “the Contract price” means the price of the Goods as agreed between the Company and the Buyer:
1.7 “person” includes a corporation, association, firm, Company, partnership or individual.
2.1 The price contained in the Contract is based upon rates and costs as at the date of the Contract or where the Contract arises from a quotation given by the Company, as at the date of quotation, of materials, transport, labour, customs duty, insurance and other rates and costs.
2.2 The price shall be increased by the amount of any increase in the cost of any such items or any other factors (including any change in exchange rates) affecting the cost of supply, production and / or delivery of the Goods due to circumstances beyond the control of the Company between that date and the date of delivery.
3.1 Unless expressly included in any quotation given by the Company, Goods and Services Tax and other taxes and duties assessed or levied in connection with the supply of the Goods to the Buyer are not included in the price and shall be the responsibility of the Buyer. Where Goods and Services Tax or other taxes or duties are expressly included in any quotation given by the Company, any increase in the amount of such Goods and Services Tax or other taxes and duties between the date of quotation and the date of delivery of the Goods shall be the responsibility of the Buyer and the price shall be increased accordingly.
4.1 Subject to any provision to the contrary in the Contract, payment shall be made in full upon the 20th of the month following the date of the Company’s invoice.
4.2 Any additional payments due by the Buyer pursuant to any of the provisions of the Contract shall be paid at the time provided in the Contract or, if no time is provided, within 7 days of payment being demanded in writing by the Company.
4.3 If the Company shall at any time consider the credit worthiness of the Buyer to be unsatisfactory, it may require security for payment. All costs and expenses incurred by the Company as a result of such suspension and any recommencement shall be payable by the Buyer upon demand.
4.4 The Buyer shall not be entitled to withhold payment or to make any deductions from the Contract price without prior written consent of the Company.
4.5 Receipt of a cheque, bill or exchange, or other negotiable instrument by the Company shall not constitute payment and the Buyer shall remain liable for the full Contract price until such cheque, bill of exchange or negotiable instrument is paid in full.
5.1 Delivery shall be made at the place indicated in the Contract, or, if no place shall be indicated in the Contract, delivery shall be made at the Company’s premises. If the Buyer fails or refuses to indicate to the Company that he will fail or refuse to take or accept delivery, then the Goods shall be deemed to have been delivered when the Company was to deliver them.
5.2 The Company reserves the right to deliver the Goods by instalments and each instalment shall be deemed to be a separate Contract under the same provisions as the main Contract. Should the Company fail to deliver or make defective delivery of one or more instalments this shall not entitle the Buyer to repudiate the main Contract.
5.3 Without prejudice to an other rights and remedies which it may have, the Company may charge storage and transportation expenses if the Buyer fails or refuses to take or accept delivery or indicates to the Company that he/she will fail or refuse to take or accept delivery at the time specified in the Contract or at any other times that the Company is able to deliver the Goods.
6.1 Risk of any loss, damage or deterioration of or to the Goods shall be borne by the Buyer from the date of delivery of the Goods.
6.2 Until property in the Goods passes to the Buyer, the Buyer shall keep the Goods insured in the names of the Company and the Buyer for their respective rights and interest and will produce to the Company on demand such evidence as the Company may require to confirm the existence of such insurance. If the Buyer defaults in the performance of its obligation under this clause, the Company shall be entitled to insure the Goods and the cost of affecting such insurance shall be payable by the Buyer to the Company upon demand.
6.3 If any of the Goods are damaged or destroyed prior to property therein passing to the Buyer, the Company shall be entitled, without prejudice to any of its other rights or remedies under the Contract to receive all insurance proceeds which are payable in respect thereof (whether or not the purchase price of such Goods has become payable under the Contract) and the production of this Contract by the Company shall be sufficient evidence by any person dealing with the Company. Any such insurance proceeds shall be applied by the Company as follows:
(a) First, in payment of the purchase price of the Goods which are damaged or destroyed, if unpaid:
(b) Secondly, in payment of the outstanding purchase price of any other Goods supplied to the Buyer by the Company, whether under the Contract or otherwise.
(c) Thirdly, in payment of any other sums payable to the Company by the Buyer whether under the Contract or otherwise.
(d) Thereafter any balance shall be paid to the Buyer.
7.1 Property in and the right to possession of the Goods and or intellectual property, shall pass from the Company to the Buyer when the Contract price and all other moneys payable to the Company by the Buyer (whether under the Contract or otherwise) have been paid in full.
8.1 If any time for delivery of the Goods or completion of the Contract or any part thereof shall be stated in the Contract, such time shall be approximate only and shall not be deemed to be of the essence of the Contract.
8.2 The Company shall not be liable for failure to deliver the Goods or for any delay in delivery of the Goods where such failure or delay is occasioned by strike, combination of workmen, lockout, difficulty in procuring components or materials, shortage of labour, lack of skilled labour, delays in transit, failure or delay by the Buyer in performing any of his obligations hereunder, failure or delay or inability to obtain any necessary import or export license foreign exchange control authorisation or similar authorisation, legislative governmental or other prohibitions or restrictions, fire, flood, hostilities, commotions or other causes whatsoever (whether similar in nature or not to the foregoing) beyond the Company’s reasonable control.
8.3 If the supply or the delivery of the Goods is delayed by reason of or result of any act, omission, default or request by or on behalf of the Buyers, the Company may, without prejudice to its other rights and remedies, require payment by the Buyer of such portion of the Contract price as represents the extent to which the Company has performed the Contract or carried out work required by the Contract up to the date such payment is required together with any expenses or additional costs incurred by the Company as a result of such delay. In the event of such delay continuing beyond a reasonable time, the Company may, without prejudice to its other remedies, terminate the Contract.
9.1 The Company warrants that it will repair or make good any defects in workmanship arising within 14 days from the date of delivery of the Goods. No claim shall be accepted under such warranty unless written notice of the claim is received by the Company within 7 days after the defect is discovered nor shall any claim be accepted:
(a) If the Goods have been modified without the approval of the Company; or
(b) If the Goods have not been stored, maintained or used in a proper manner.
9.2 The Company shall not be obliged to carry out any work nor be under any liability under or in relation to the foregoing warranty for so long as the Buyer is in default in relation to any or in the performance of any obligation under the Contract.
10.1 The Company shall not be liable for any loss of profits or any consequential, indirect or indirectly from any breach of any of the Company’s obligations arising under or in connection with the Contract or from any cancellation of the Contract or from any negligence, misrepresentation or other act or omission on the part of the Company, its servants, agents or Contractors nor shall the Company be liable for any loss, damage or injury caused to the Buyer’s servants, agents, Contractors, customers , visitors, tenants, trespassers or other persons whomsoever (whether similar to the foregoing or not) arising as aforesaid. The Buyer shall indemnify the Company against any claim by any of the foregoing persons in respect of any loss, damage or injury arising as aforesaid.
10.2 Notwithstanding anything contained in this clause or elsewhere in this Contract, the liability of the Company, whether in Contract or pursuant to any cancellation of the Contract or in tort or otherwise howsoever, in respect of all claims for loss, damage or injury arising from breach of any of the Company’s obligations arising under or in connection with the Contract, from any cancellation of the Contract or from any negligence, misrepresentation or other act of omission on the part of the Company, its servants, agents or Contractors shall not in aggregate exceed the Contract price.
11.1 If the Buyer defaults in the due payment of any moneys payable to the Company, whether under the Contract or otherwise, or if the Buyer is in default in the performance of its obligations under the Contract or any other Contract between the Company and the Buyer or if the Company shall at any time consider the creditworthiness of the Buyer to be unsatisfactory, the Company without prejudice to any other right it has may, at its option, suspend or terminate the Contract, and payment for the Goods delivered and work performed up to the date of such suspension or termination and any other moneys payable hereunder shall immediately become due and payable. In any of the foregoing events, the Company also reserves the right, as the agent of the Buyer, to enter upon the premises where the Goods are situated and take possession of and remove the same without being responsible for any damage thereby caused, and the Company may resell any or all of the Goods and apply the proceeds in or towards payment of the Contract price and all other monies owing to the Company by the Buyer. All costs and expenses of or incurred by the Company as a result of any such action together with transportation and storage charges shall be payable by the Buyer upon demand. Any suspension of the Contract by the Company shall not prevent it terminating the Contract during the period of suspension.
12.1 Where the Consumer Guarantees Act 1993 applies to the Contract, if the Goods are acquired by you for business purposes you agree that the Consumer Guarantees Act 1993 does not apply.
12.2 Nothing in these conditions is intended to have the effect of Contracting out the provisions of the Consumer Guarantees Act 1993 except to the extent permitted by that Act.
13.1 Copyright in all drawings, specifications and other technical information provided by the Company in connection with the Contract is vested in the Company.
13.2 If any of the Goods are to be supplied to the Buyer’s design, the Buyer hereby warrants that the manufacture and supply of such Goods by the Company will not infringe any copyright, registered design or other rights of any other person and the Buyer agrees to indemnify the Company against any liability incurred by the Company including any costs and expensed in the event of any claim being made that the manufacture or supply of such Goods by the Company infringes any patent, copyright, registered design or other rights of any other person.
14.1 Dimensions and specifications contained or referred to in the Contract or in any publications issued by the Company are estimate only. Unless otherwise expressly agreed in writing, it is not a condition of the Contract that the Goods will correspond precisely with such dimensions and specifications and customary tolerances, or in the absence customary tolerances, reasonable tolerances shall be allowed.
15.1 Should the Company provide the Buyer with a proof of the work to be done by the Company, the Company shall not be liable for any errors or omissions in the finished Goods should the Goods correspond with the proof provided.
16.1 Should the Company be obliged to match and shade or colour, a light and dark tolerance shall be allowed to such extent as shall be agreed upon by the Company and the Buyer, and in the absence of any agreement, a reasonable tolerance shall be allowed.
17.1 The items mentioned in the quotation (where the Contract arises from a Contract by the Company) or the items contained in the Company’s confirmation of order (where the Contract arises from an order by the Buyer) Together with these terms and conditions shall be the conditions of the Contract. All other conditions, warranties , descriptions, representations, conditions as to fitness or suitability for any purpose, tolerance to any conditions, merchantability or otherwise (Whether of a like nature or not) and whether expressed or implied by law, trade custom or otherwise are expressly excluded. In the case of any conflict between an order submitted by the Buyer and the Company’s confirmation of order and these terms and conditions, the Company’s confirmation of order and these terms and conditions shall prevail. No agent or representative of the Company is authorised to make any representations, warranties, conditions or agreement not expressly confirmed by the Company in writing and the Company is not in anyway bound by such unauthorised statements nor can any such statements be taken to form a Contract or part of a Contract with the Company collateral to the Contract.
18.1 All the original rights, powers, exemptions and remedies of the Company shall remain in full force not withstanding any neglect, forbearance or delay in the enforcement thereof. The Company shall not be deemed to have waived any condition unless such waiver shall be in writing under signature of the Company or an authorised officer thereof and any such waiver, unless the contrary shall be expressly stated, shall apply to and operate only in a particular transaction, dealing or matter.
19.1 The Buyer may not assign all or any of his/her rights or obligations under the Contract without the prior written consent of the Company.
20.1 The Company and Buyer agree that ownership of the Goods shall not pass until:
(a) the Buyer has paid the Company all amounts owing for the particular Goods; and
(b) the Buyer has met all other obligations due by the Buyer to the Company in respect of all Contracts between the Company and the Buyer.
20.2 Receipt by the Company of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Company’s ownership or rights in respect of the Goods shall continue.
20.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until the Company shall have received payment and all other obligations of the Buyer are met; and
(b) until such time as ownership of the Goods shall pass from the Company to the Buyer the Company may give notice in writing to the Buyer to return the Goods or any of them to the Company. Upon such notice being given the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease; and
(c) the Buyer is only a bailee of the Goods and until such time as the Company has received payment in full for the Goods then the Buyer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Buyer owes to the Company for the Goods, on trust for the Company; and
(d) until such time that ownership in the Goods passes to the Buyer, if the Goods are converted into other products, the parties agree that the Company will be the owner of the end products; and
(e) if the Buyer fails to return the Goods to the Company then the Company or the Company’s agent may (as the invitee of the Buyer) enter upon and into land and premises owned, occupied or used by the Buyer, or any premises where the Goods are situated and take possession of the Goods, and the Company will not be liable for any reasonable loss or damage suffered as a result of any action by the Company under this clause.
21.1 Upon assenting to these terms and conditions in writing the Buyer acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Goods previously supplied by the Company to the Buyer (if any) and all Goods that will be supplied in the future by the Company to the Buyer.
21.2 The Buyer 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
the Company may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, the Company for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
(c) not register a financing change statement or a change demand without the prior written consent of the Company; and
(d) immediately advise the Company of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
21.3 The Company and the Buyer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
21.4 The Buyer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
21.5 Unless otherwise agreed to in writing by the Company, the Buyer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
21.6 The Buyer shall unconditionally ratify any actions taken by the Company under clauses 21.1 to 21.5.
22.1 The Buyer and the Guarantor/s (if separate to the Buyer) authorises the Company to:
(a) collect, retain and use any information about the Buyer and/or Guarantors, for the purpose of assessing the Buyer’s and/or Guarantors creditworthiness or marketing products and services to the Buyer and/or Guarantors; and
(b) disclose information about the Buyer and/or Guarantors, whether collected by the Company from the Buyer and/or Guarantors directly or obtained by the Company 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 Buyer and/or Guarantors.
22.2 Where the Buyer and/or Guarantors are an individual the authorities under clause 22.1 are authorities or consents for the purposes of the Privacy Act 1993.
22.3 The Buyer and/or Guarantors shall have the right to request the Company for a copy of the information about the Buyer and/or Guarantors retained by the Company and the right to request the Company to correct any incorrect information about the Buyer and/or Guarantors held by the Company.
23.1 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 the Company’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
23.2 In the event that the Buyer’s payment is dishonoured for any reason the Buyer shall be liable for any dishonour fees incurred by the Company.
23.3 If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify the Company from and against all costs and disbursements incurred by the Company in pursuing the debt including legal costs on a solicitor and own client basis and the Company’s collection agency costs.
23.4 Without prejudice to any other remedies the Company may have, if at any time the Buyer is in breach of any obligation (including those relating to payment) the Company may suspend or terminate the supply of Goods to the Buyer and any of its other obligations under the terms and conditions. The Company will not be liable to the Buyer for any loss or damage the Buyer suffers because the Company has exercised its rights under this clause.
23.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
23.6 Without prejudice to the Company’s other remedies at law the Company shall be entitled to cancel all or any part of any order of the Buyer which remains unfulfilled and all amounts owing to the Company shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to the Company becomes overdue, or in the Company’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.