Sign Central Limited- Terms & Conditions of Trade
1.1 “Seller” shall mean Sign Central Limited its successors and assigns or any person acting on behalf of and with the authority of Sign Central Limited.
1.2 “Buyer” shall mean the Buyer (or any person acting on behalf of and with the authority of the Buyer) as described on any quotation, work authorisation or other form as provided by the Seller to the Buyer.
1.3 “Guarantor” shall mean that person (or persons), or entity, who agrees to be liable for the debts of the Buyer on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by the Seller to the Buyer (and where the context so permits shall include any supply of Services as hereinafter defined) and includes Goods described on any invoices, quotation, work authorisation or any other forms as provided by the Seller to the Buyer.
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 above).
1.6 “Price” shall mean the price payable for the Goods as agreed between the Seller and the Buyer in accordance with clause 3 of this contract.
2.1 Any instructions received by the Seller from the Buyer for the supply of Goods and/or the Buyer’s acceptance of Goods supplied by the Seller 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 binding and can only be amended with the written consent of the Seller.
2.4 The Buyer shall give the Seller not less than fourteen (14) days prior written notice of any proposed change of ownership of the Buyer or any 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). The Buyer shall be liable for any loss incurred by the Seller as a result of the Buyer’s failure to comply with this clause.
3. Price and Payment
3.1 At the Seller’s sole discretion, the Price shall be either:
(a) the Seller’s quoted Price (subject to clause 3.2) which shall be binding upon the Seller provided that the Buyer shall accept the Seller’s quotation in writing within thirty (30) days.
3.2 The Seller reserves the right to change the Price in the event of a variation to the Seller’s quotation. The Buyer acknowledges and agrees that the Seller’s cost for overseas transactions may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges for foreign sourced components. Any variation from the Seller’s quoted Price will be detailed in writing and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
3.3 At the Seller’s sole discretion, a deposit may be required.
3.4 At the Seller’s sole discretion:
(a) payment shall be due on delivery of the Goods; or
(b) payment shall be due before delivery of the Goods.
3.5 Payment is due seven (7) days from date of Invoice, unless otherwise stated.
3.6 The Price (unless otherwise stated in writing) does not include the costs of supply or installation of any electrical wiring, piping, steam supply, pneumatic air or any other ancillary equipment between the machinery connection point and the Buyer’s mains supply.
3.7 In the event that cranes or forklifts are needed to install the Goods, any costs associated with the hireage or supply of such equipment shall be in addition to the Seller’s quoted Price.
3.8 Removal of any existing machinery or fixtures necessary to install the Goods is in addition to the Seller’s quoted Price.
3.9 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by credit card or by any other method as agreed to between the Buyer and the Seller.
3.10 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
3.11 Credit Card Surcharge fee 3.30% is payable on Invoice total amount owing. The fee will be added at time of payment.
4. Delivery of Goods
4.1 At the Seller’s sole discretion delivery of the Goods shall take place when the Buyer takes possession of the Goods at the Buyer’s nominated address (in the event that the Goods are delivered by the Seller or the Seller’s nominated carrier).
4.2 At the Seller’s sole discretion, the costs of delivery is:
(a) in addition to the Price; or
(b) for the Buyer’s account.
4.3 The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Buyer is unable to take delivery of the Goods as arranged then the Seller shall be entitled to charge a reasonable fee for redelivery.
4.4 Delivery of the Goods to a third party nominated by the Buyer is deemed to be delivery to the Buyer for the purposes of this agreement.
4.5 The Seller may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
4.6 The Buyer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser 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.
4.7 The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
4.8 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, where due to circumstances beyond the control of the Seller.
5.1 If the Seller retains ownership of the Goods nonetheless, all risk for the Goods passes to the Buyer on delivery.
5.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Buyer, the Seller is entitled to receive all insurance proceeds payable for the Goods. 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.
5.3 There are a number of variables that may impact on the performance of the Goods including, but not limited to, the compatibility of the Goods with other equipment that may or may not have been supplied by the Seller. Whilst the Seller shall make every endeavour to ensure the compatibility of the Goods with other equipment, the Seller shall not be liable for any loss or damage resulting from incompatibility.
5.4 The Buyer shall be liable for any loss or damage whatsoever caused in the event that the Goods are fitted, serviced or operated incorrectly, or adapted for use other than the purpose that the Goods were intended for, or any part thereof however arising.
6. Buyers Responsibility
6.1 The Buyer shall commit staff appointed to operate the Goods to in depth training in the reliable operation of and ongoing maintenance of the Goods. Any callouts required as a result of the Buyer not providing adequate training to staff may be charged for at the Sellers normal callout rate.
6.2 It is the Buyers responsibility to ensure that any ancillary devices (including electrical wiring, pneumatic pipes, steam supply etc.) to the Goods are capable of withstanding the power and or air requirements of the Goods to be installed. Any additional work which needs to be undertaken by the Seller due to the requirements of this clause not being met may be charged at the Sellers normal callout rate.
7.1 The Seller and Buyer agree that ownership of the Goods shall not pass until:
(a) the Buyer has paid the Seller 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.
7.2 Receipt by the Seller 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 Seller’s ownership or rights in respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until the Seller 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 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 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 Seller has received payment in full for the Goods then the Buyer shall hold any proceeds from the sale or disposal of the Goods on trust for the Seller; 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 Seller will be the owner of the end products; and
(e) 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 where the Goods are situated as the invitee of the Buyer and take possession of the Goods, and the Seller will not be liable for any reasonable loss or damage suffered as a result of any action by the Seller under this clause.
8. Export Contracts
8.1 In the event that the Goods are exported, delivery of the Goods may be subject to either FOB Contract or CIF Contract.
8.2 In the event of a FOB Contract the following shall apply;
(a) the Goods shall be delivered to the Buyer by delivery on board the agreed upon mode of transport on the delivery date. The Seller shall promptly notify the Buyer that the Goods have been delivered aboard. Title (subject to clause 7) to, and risk in the Goods shall pass to the Buyer upon such delivery being affected. The Seller shall promptly provide the Buyer with a clean shipped bill of lading in respect of the Goods.
(b) the Buyer shall reserve the necessary space on board the agreed upon mode of transport and give the Seller due notice of the loading berth and any revised delivery dates. The Buyer shall bear any additional costs caused due to the failure of the agreed upon mode of transport being available to load the Goods on the delivery date.
8.3 In the event of a CIF contract the following shall apply:
(a) the Goods shall be delivered to the Buyer by delivery on board the agreed upon mode of transport on or before the delivery date. The Seller shall procure a contract of carriage and insure the Goods from dispatch until delivery on terms current in the trade for the benefit of the Buyer. The Goods shall be at the risk of the Buyer as they are loaded on board. The Seller shall promptly tender to the Buyer a clean shipped bill of lading, the insurance policy and an invoice in respect of the Goods.
(b) the Buyer shall accept the documents tendered by the Seller if they correspond to this contract and take delivery of the Goods at the port of destination and bear all other costs and charges arising out of shipment of the Goods to the port of destination.
9. Personal Property Securities Act 1999 (“PPSA”)
9.1 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 Seller to the Buyer (if any) and all Goods that will be supplied in the future by the Seller to the Buyer.
9.2 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 Seller 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 Seller 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 Seller; and
(d) immediately advise the Seller 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.
9.3 The Seller and the Buyer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
9.4 The Buyer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
9.5 Unless otherwise agreed to in writing by the Seller, the Buyer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
9.6 The Buyer shall unconditionally ratify any actions taken by the Seller under clauses 9.1 to 9.5.
10. Buyer’s Disclaimer
10.1 The Buyer hereby disclaims any right to rescind, or cancel any contract with the Seller or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Buyer by the Seller and the Buyer acknowledges that the Goods are bought relying solely upon the Buyer’s skill and judgment.
11.1 The Buyer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) 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 presumed to be free from any defect or damage. 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.
11.2 Goods will not be accepted for return other than in accordance with 11.1 above.
12.1 For Goods not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller shall 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 Goods.
12.2 To the extent permitted by statute, no warranty is given by the Seller as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. The Seller shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
12.3 In the case of second-hand Goods, the Buyer acknowledges that he has had full opportunity to inspect the same and that he accepts the same with all faults and that no warranty is given by the Seller as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Seller shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
13. Consumer Guarantees Act 1993
13.1 If the Buyer is acquiring Goods for the purposes of a trade or business, the Buyer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by the Seller to the Buyer.
14. Default & Consequences of Default
14.1 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 one-half percent (2.5%) per calendar month (and at the Seller’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
14.2 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 Seller.
14.3 If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in pursuing the debt including legal costs on a solicitor and own client basis and the Seller’s collection agency costs.
14.4 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 has exercised its rights under this clause.
14.5 If any account remains overdue after thirty (30) days then an amount of the greater of fifty dollars ($50.00) or ten percent (10%) of the amount overdue (up to a maximum of three hundred and fifty dollars ($350.00)) shall be levied for administration fees which sum shall become immediately due and payable.
14.6 Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Buyer which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable 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.
15. Security and Charge
15.1 Despite 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 these 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 withdrawn 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) the Buyer and/or the Guarantor (if any) agree to 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 perform all necessary acts to give effect to the provisions of this clause 15.1.
16.1 The Seller may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Buyer. On giving such notice the Seller shall repay to the Buyer any sums paid in respect of the Price. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation.
16.2 In the event that the Buyer cancels delivery of the Goods the Buyer shall be liable for any loss incurred by the Seller (including, but not limited to, any loss of profits) up to the time of cancellation.
17. Privacy Act 1993
17.1 The Buyer and the Guarantor/s (if separate to the Buyer) authorises the Seller 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 Seller from the Buyer and/or Guarantors directly or obtained by the Seller 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.
17.2 Where the Buyer and/or Guarantors are an individual the authorities under clause 17.1 are authorities or consents for the purposes of the Privacy Act 1993.
17.3 The Buyer and/or Guarantors shall have the right to request the Seller for a copy of the information about the Buyer and/or Guarantors retained by the Seller and the right to request the Seller to correct any incorrect information about the Buyer and/or Guarantors held by the Seller.
18. Unpaid Seller’s Rights
18.1 Where the Buyer has left any item with Seller for repair, modification, exchange or for the Seller to perform any other Service in relation to the item and 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 item;
(b) the right to retain the item for the Price while the Seller is in possession of the item;
(c) a right to sell the item.
18.2 The lien of the Seller shall continue despite the commencement of proceedings, or judgement for the Price having been obtained.
19.1 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.
19.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.
19.3 The Seller shall be under no liability whatsoever to the Buyer for any indirect and/or consequential 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.
19.4 In the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
19.5 The Buyer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Buyer by the Seller nor to withhold payment of any invoice because part of that invoice is in dispute.
19.6 The Seller may license or sub-contract all or any part of its rights and obligations without the Buyer’s consent.
19.7 The Seller reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Seller notifies the Buyer of such change.
19.8 The provisions of the Contractual Remedies Act 1979 shall apply to this contract as if section 15(d) were omitted from the Contractual Remedies Act 1979.
19.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
19.10 The failure by the Seller to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Seller’s right to subsequently enforce that provision