NZSIGNCO LIMITED - TERMS OF TRADE OF PURCHASE AGREEMENT
The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by the terms and conditions of this Agreement if the Customer places an Order for or accepts delivery and/or installation of any Goods and/or Services.
The terms and conditions are irrevocable and can only be rescinded in accordance with this Agreement or with the written consent of NZSIGNCO.
These terms and conditions may only be amended with both parties’ consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the NZSIGNCO and the Customer.
Agreement means these terms of trade of purchase.
Customer means the person, company or other entity to which the Goods and/or Services are supplied.
Goods means goods and/or accessories supplied or to be supplied by NZSIGNCO to the Customer and where the context so permits shall include any supply of Services.
Order means an order by the Customer to NZSIGNCO for Goods and/or Services.
Price means the price for the Goods and/or Services as advised by NZSIGNCO from time to time.
Services means services supplied or to be supplied by NZSIGNCO to the Customer.
NZSIGNCO means NZSIGNCO Limited and its successors and assignees.
Website means NZSIGNCO website located at http://www.nzsignco.co.nz
ACCOUNT WITH NZSIGNCO
The Customer may apply for an account with NZSIGNCO, the acceptance of which is in NZSIGNCO sole discretion. The Customer acknowledges that NZSIGNCO reserves the right to at any time and in its sole discretion to suspend or cancel the account in accordance with this Agreement, and the outstanding account balance, if any, will become immediately payable.
The Customer authorises:
NZSIGNCO to conduct all credit checks, make enquiries, collect all and any information from and disclose such information to third parties, and undertake any searches in relation to the Customer’s credit, financial and business affairs and history as is reasonably required to assess the Customer’s credit position and as otherwise deemed necessary by NZSIGNCO from time to time; and
Third parties to disclose to NZSIGNCO such information as NZSIGNCO may reasonably require from time to time in respect of the above authorisations.
Quotations, where provided, are provisional only and all quotations, including but not limited to: measurements and installation costs, are subject to confirmation by a complete site measure and inspection once the Order is placed. Any variations to the quotation as a result of the full site measure and inspection will be advised to the Customer as soon as reasonably possible.
Delivery costs are not included in any quotation unless specifically noted.
Quotations are valid for thirty (30) working days from the date of issuance.
NZSIGNCO reserves the right to alter the quotation prior to the quotation being accepted by the Customer:
Where the Customer requests variations to the supply of Goods and Services; and/or
Due to circumstances beyond NZSIGNCO ‘s control.
ORDERS AND SUPPLY
The Customer may place an Order via telephone or email.
The Customer acknowledges that the acceptance of an Order (in whole or in part) and supply by NZSIGNCO is subject at all times to NZSIGNCO’s sole discretion.
NZSIGNCO will use its reasonable endeavours to source all Goods and/or Services ordered but does not guarantee supply.
NZSIGNCO will notify the Customer via telephone or email in the event it does not accept all or part of an Order received by the Customer.
PRICE AND PAYMENT
Goods and/or Services will be charged at the Price(s) current as at date of the Order.
The Customer agrees to pay the Price in New Zealand dollars plus GST, any other applicable taxes, duties, levies (if any), freight, handling charges and other costs to NZSIGNCO by:
Electronic funds transfer on or before seven (7) days following the date of invoice.
c. If the Customer has completed a credit application form and has been approved in NZSIGNCO’s sole discretion, electronic funds transfer on or before the 20th of the month following the date of invoice.
d. Where the due date for payment of the invoice falls on a weekend or public holiday in New Zealand, payment is due the work day immediately prior.
The Customer has ten (10) working days from the date of the invoice to raise any dispute they have with NZSIGNCO in respect of that invoice. Failure to raise a dispute within that timeframe deems the Customer’s acceptance of the invoiced amount.
Payment of the Price and any other monies owing to NZSIGNCO shall be made in clear funds and free of any counterclaim, set-off, deduction or other claim whatsoever. NZSIGNCO may allocate any payment received to the Customer’s account and/or payment of any Goods/Services as it sees fit and the Customer waives any right to receive notification of that allocation.
TAXES AND DUTIES
Unless expressly included in any quotation or Order, Goods and Services Tax and other taxes and duties assessed or levies in connection with the supply of the Goods and Services to the Customer are not included in the price and will be the responsibility of the Customer or, where the payment of such taxes or duties is the responsibility of NZSIGNCO at law, the price will be increased by the amount of such taxes or duties.
FAILURE TO COMPLY
If the Customer fails to pay any monies by the due date, or is otherwise in breach of this Agreement, NZSIGNCO may, in NZSIGNCO’s sole discretion, without prejudice to and in addition to any other rights and remedies:
Charge interest on all overdue accounts at a rate of 2.5% per month calculated on a daily basis until it is received in full. Any payments received by NZSIGNCO will be applied firstly against any costs and expenses and then against such interest before payment of the overdue amount(s);
Require that any balance outstanding in respect of any account held by the Customer, whether or not due, is paid immediately;
Suspend delivery of any Goods and/or Services, cancel any Order, suspend or cancel the Customer’s account, or terminate (in whole or in part) the supply of Goods, or this Agreement by written notice to the Customer; and
Recover from the Customer or deduct from or set-off against any amount NZSIGNCO may owe to the Customer, any damage, losses, costs and expenses (including all legal costs as between solicitor and client) and debt collection fees incurred by NZSIGNCO in consequence or in connection with the recovery of an overdue debt or the enforcement by NZSIGNCO or any other power, right or remedy conferred upon NZSIGNCO by law or this Agreement.
ERRORS OR OMISSIONS
Clerical errors or omissions, whether in computation or otherwise in the quotation, Order or invoice will be subject to correction by NZSIGNCO’s.
COMPLIANCE WITH LAWS
The Customer and NZSIGNCO shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Goods and/or Services including but not limited to, any WorkSafe health and safety laws or any other relevant safety standards or legislation pertaining to the Goods and/or Services.
NZSIGNCO has not and will not at any time assume any obligation as the Customer’s agent or otherwise which may be imposed upon the Customer from time to time pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”) arising out of the engagement. The parties agree that for the purposes of the HSW Act, NZSIGNCO shall not be the person who controls the place of work in terms of the HSW Act.
The Customer shall obtain (at the expense of the Customer) all engineering reports, certificates, and all licenses, permits and approvals that may be required for the supply of Goods and/or Services.
Unless otherwise limited as per clause 11.2, the Customer agrees that should the Customer introduce any third party to NZSIGNCO as the Customer’s duly authorised representative, that once introduced that person shall have the full authority of the Customer to order any Goods and/or Services, and/or to request any variation thereto, on the Customer’s behalf (such authority to continue until all requested Goods and/or Services has been returned to the NZSIGNCO, or the Customer otherwise notifies the NZSIGNCO in writing that said person is no longer the Customer’s duly authorised representative).
In the event that the Customer’s duly authorised representative as per clause 11.1 is to have only limited authority to act on the Customer’s behalf, then the Customer must specifically and clearly advise NZSIGNCO in writing of the parameters of the limited authority granted to their representative.
The Customer specifically acknowledges and accepts that they will be solely liable to NZSIGNCO for all additional costs incurred by NZSIGNCO (including NZSIGNCO ‘s profit margin) in providing any Goods and/or Services, or variation/s thereto, requested by the Customer’s duly authorised representative (subject always to the limitations imposed under clause 11.2 (if any)).
CHANGE IN CONTROL
The Customer shall give NZSIGNCO at least seven (7) working days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice).
The Customer shall be liable for any loss incurred NZSIGNCO as a result of the Customer’s failure to comply with clause 12.1.
Once an Order is received by NZSIGNCO, it cannot be cancelled by the Customer, unless NZSIGNCO provides its prior written consent.
Should any Goods be out of stock or unavailable for any reason, and NZSIGNCO is unable to source the Goods within a reasonable period, in its sole discretion, NZSIGNCO may either cancel the Customer’s Order in full, or that part of the Customers’ Order related to the out of stock or unavailable Goods and notify the Customer accordingly. A refund shall be provided in relation to that part of the Order that has been cancelled.
If the Customer fails to pay any monies owing or otherwise breaches a term or condition of this Agreement, NZSIGNCO may (without prejudice to any other remedies available to it) within ten (10) working days of notifying the Customer to remedy the breach, and the Customer failing to remedy the breach, suspend or terminate this Agreement immediately and all outstanding monies owing under this Agreement to NZSIGNCO (if any), will immediately fall due and payable.
Subject to an agreement otherwise between the parties, NZSIGNCO will deliver or arrange for the delivery of the Goods to the address the Customer provides to NZSIGNCO in writing, using a carrier of NZSIGNCO’s choice. The Goods will be deemed to have been delivered to the Customer at the time:
The Customer collects the Goods directly from NZSIGNCO’s premises;
The Goods are placed with the carrier;
As otherwise agreed between the Customer and NZSIGNCO in writing; or
NZSIGNCO (or NZSIGNCO nominated carrier) delivers and/or installs the Goods at the Customer’s nominated address, even if the Customer is not present at the address.
While NZSIGNCO shall use all reasonable efforts to deliver within a reasonable time, any delivery time shall be an estimate only.
The Customer shall ensure safe and practical site access for deliveries and shall inspect the Goods on delivery. The Customer has three (3) working days from the date of delivery to raise any issue with NZSIGNCO in respect of the Goods delivered. Failure to do so within this timeframe will deem the Goods as accepted by the Customer and the Customer may not reject the Goods after this time.
At NZSIGNCO ‘s sole discretion, the cost of Delivery is in addition to the Price.
NZSIGNCO may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in this Agreement.
Any time specified by NZSIGNCO for Delivery is an estimate only and NZSIGNCO will not be liable for any loss or damage incurred by the Customer as a result of Delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods and/or Services to be supplied at the time and place as was arranged between both parties. In the event that NZSIGNCO is unable to supply the Goods as agreed solely due to any action or inaction of the Customer then NZSIGNCO shall be entitled to charge a reasonable fee for resupplying the Goods at a later time and date.
CONSTRUCTION CONTRACT ACT 2002
The Customer hereby expressly acknowledges that:
NZSIGNCO 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 Customer, and:
the payment is not paid in full by the due date for payment and no payment schedule has been given by the Customer; or
a scheduled amount stated in a payment schedule issued by the Customer in relation to the payment claim is not paid in full by the due date for its payment; or
the Customer has not complied with an adjudicator’s notice that the Customer must pay an amount to NZSIGNCO by a particular date; and
NZSIGNCO has given written notice to the Customer of its intention to suspend the carrying out of construction work under the construction contract.
If NZSIGNCO suspends work, it:
is not in breach of contract; and
is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Customer or by any person claiming through the Customer; and
is entitled to an extension of time to complete the contract; and
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.
If NZSIGNCO exercises the right to suspend work, the exercise of that right does not:
affect any rights that would otherwise have been available to NZSIGNCO under the Contractual Remedies Act 1979; or
enable the Customer to exercise any rights that may otherwise have been available to the Customer under that Act as a direct consequence of NZSIGNCO suspending work under this provision.
RISK AND OWNERSHIP
On delivery of any Goods and/or Services under this Agreement, the Customer will take responsibility for the Goods and/or Services and will carry the full risk of liability with no recourse to NZSIGNCO. The Customer is responsible for adequately insuring the Goods and/or Services as from delivery and the Customer agrees and acknowledges that until the Customer has fully paid for the Goods and/or Services and any other amounts owing by the Customer to NZSIGNCO under this Agreement:
NZSIGNCO retains ownership of the Goods; and
The Customer hold the Goods or any products which incorporate the Goods solely as bailee for NZSIGNCO and the Customer will store the Goods in such a way that it is clear that they are the property of NZSIGNCO and in accordance with any storage requirements; and
NZSIGNCO and its agents have the right to enter the premises where the Goods and/or Services are being stored at any reasonable time to inspect the Goods and where the Customer is in breach of this Agreement, remove the Goods from the Customer’s possession; and
If the Goods and/or Services are stored at the premises of a third party the Customer will obtain the consent of that third party to NZSIGNCO’s entry onto the premises for this purpose. The Customer shall pay all costs incurred by NZSIGNCO in respect of such entry and repossession, including all legal costs.
The Customer grants to NZSIGNCO a security interest over all of the Goods supplied to the Customer by NZSIGNCO and all of the proceeds of sale in respect of those Goods. The Customer waives any right to:
Receive a copy of the verification statement, pursuant to s 148 of the New Zealand Personal Property Securities Act 1999; and
Reinstate this Agreement, pursuant to s 133 of the New Zealand Personal Property Securities Act 1999.
RECALL OF GOODS
In the event NZSIGNCO recalls or is required by Government or any other authority to recall any or all of the Goods, NZSIGNCO shall notify the Customer in writing as soon as reasonably practicable. NZSIGNCO may in such circumstances:
Replace the Goods where replacement Goods are available;
Pay reasonable costs incurred in the return of the Goods to NZSIGNCO or destruction of the Goods by the Customer; and/or
Pay reasonable third-party service fees associated with the removal from and/or replacement of the recalled Goods in animals up to a maximum amount determined by NZSIGNCO at that time.
The Customer agrees to co-operate with NZSIGNCO as is reasonably required in respect of any Goods subject to a recall.
If products used by NZSIGNCO have a manufacturer’s warranty, this manufacturer’s warranty will be passed onto the customer. No further warranty will be provided by NZSIGNCO.
NZSIGNCO does not give any warranty or representation of any sort as to the results, outcomes or performance to be achieved or expected from use of the Goods and/or the Services.
The Customer agrees and acknowledges that NZSIGNCO products are customised, and once the product is approved by the Customer, in writing, NZSIGNCO will not accept any returns.
Where the Customer acquires the Goods and/or Services, or holds themselves out to NZSIGNCO as acquiring the Goods and/or Services, for the purposes of a “business” (as defined in the CGA) then to the extent permissible under law, the parties agree that the CGA does not apply to this Agreement. The Customer indemnifies NZSIGNCO from any liability or costs arising from the Customer on-selling the Goods and/or Services for a business purpose where the Customer fails to exclude the application of the CGA (if applicable) to such transaction. If the provisions of the CGA apply to the supply of Goods to the Customer by NZSIGNCO the clause limiting NZSIGNCO‘s liability under this Agreement shall not apply.
To the maximum extent permissible under law, the parties agree that sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 do not apply to this Agreement and that the provisions of the Sale of Goods Act 1908 also do not apply to this Agreement.
The Customer agrees to indemnify NZSIGNCO against all liabilities, costs (including full costs between solicitor and Customer), losses, claims, expenses and demands incurred by NZSIGNCO or any third party arising out of or incidental to the supply of Goods and/or Services, or the Customer’s non-compliance with this Agreement, and from any third party claims arising out of or incidental to the supply of and/or use of the Goods and/or Services, and/or the Customer’s incorrect storage, handling and use of the Goods and/or Services, except where such liabilities, costs, claims and demands are the result of the gross negligence of NZSIGNCO.
LIMITATION OF LIABILITY
Except as otherwise provided in this Agreement, NZSIGNCO will be under no liability whatsoever to the Customer for any indirect loss, consequential loss, fines, loss of profit, loss of bargain, loss of business opportunity or exemplary damages suffered by the Customer or any other person, arising out of or flowing from this Agreement, whether contemplated by this Agreement or not, and whether actionable in contract, tort (including negligence), equity or otherwise. To avoid doubt and in addition to the above, NZSIGNCO shall not be liable to the Customer or any third party to the extent that any loss or damage was caused or contributed to by the Customer’s negligence, or that of the Customer’s employees, representatives, agents or third parties.
In the event that, despite the above paragraph, NZSIGNCO is found liable for any loss or damages, including the loss or damages set out above, such liability will be limited to the Price paid or to be paid by the Customer for the Goods under this Agreement to which the liability relates and is inclusive of all claims made against NZSIGNCO under this Agreement by the Customer.
INDIVIDUAL LIABILITY AND GUARANTEES
Where the Customer comprises more than one person carrying on business in partnership, each and every individual partner will be jointly and severally liable to NZSIGNCO in respect of all indebtedness or liability of the Customer arising out of this agreement. Where the Customer is a limited liability company or other corporation, the directors of the Customer company shall bind themselves as sureties and co-principal debtors with the Customer, jointly and severally, for the due and principal payment of all monies and performance of all obligations due by the Customer arising out of these Terms and Conditions and as a separate and further obligation, do each fully and continuously indemnify NZSIGNCO for any loss of profit, loss of bargain, loss of business opportunity or exemplary damages or losses suffered by NZSIGNCO arising out of or flowing from any default by the Customer.
The Customer agrees and acknowledges that NZSIGNCO is the owner or licensee of all intellectual property rights in the Goods. The Customer shall not, except as expressly provided for under this Agreement or on receipt of NZSIGNCO’s prior written permission:
Use, sell, distribute, duplicate, modify or otherwise alter the intellectual property of NZSIGNCO or a third party in respect of the Goods;
Tamper with or remove any markings, trademarks patent numbers, registration numbers or other indication of the source of origin of any Goods or descriptions required by law which are placed by NZSIGNCO on the Goods;
Claim any rights, title or interests in or to the intellectual property in the Goods unless and to the limited extent expressly provided for under this Agreement;
Damage or otherwise endanger NZSIGNCO’s intellectual property rights in the Goods; and
Use the intellectual property and/or the Goods otherwise than as intended.
Unless and to the extent expressly provided for in this Agreement, or in a separate agreement between the parties, the Customer shall not directly or indirectly re-sell the Goods to any third party by any means, including but not limited to selling the Goods via the Internet or other computer network.
All intellectual property and other information belonging to a party which by designation or by its nature is intended to be treated as confidential will be confidential information for the purposes of this Agreement. Except as otherwise specified in this Agreement, or as otherwise required under law, neither party will without prior written consent of the other disclose any confidential information to any third party. To avoid doubt, confidential information includes but is not limited to NZSIGNCO’s Prices, profit margins, the identity of NZSIGNCO’s suppliers and the identity of the Goods supplied. The confidentiality obligations under this provision survive termination of this Agreement.
The Customer agrees that NZSIGNCO may collect, use and disclose the Customer’s personal information for purposes related to the Customer’s dealings with NZSIGNCO including but not limited to the supply of the Goods, direct marketing, provision of information about the Goods, the recall of Goods, debt collection and credit reporting or assessment. If the Customer is an individual, the Customer has rights under the Privacy Act 1993 (or its successor legislation) to access personal information that NZSIGNCO holds and to request the correction of such personal information.
The parties shall endeavour to resolve any disputes in relation to this Agreement and/or the supply of Goods between them cooperatively in the first instance, prior to seeking resolution through the Courts. However, nothing in this clause prevents either party from seeking interlocutory or injunctive relief.
NZSIGNCO may suspend the operation of this Agreement at any time in the event that the Customer has, or is likely to, in NZSIGNCO’s reasonable opinion, breach any term or condition set out in this Agreement.
NZSIGNCO may terminate this Agreement at any time by providing the Customer with seven (7) working days’ notice in writing.
The Customer may terminate this Agreement by providing NZSIGNCO with thirty (30) days’ notice in writing.
If the Customer fails to pay any monies owing, become insolvent, bankrupt, call a meeting of creditors, go into liquidation, voluntary administration or otherwise are in breach of this Agreement, NZSIGNCO may (without prejudice to any other remedies available to it) within ten (10) working days of notifying the Customer to remedy the breach, and the Customer failing to remedy the breach, suspend deliveries, refuse to fill any Orders, suspend or cancel the Customer’s account, or terminate this Agreement immediately and all outstanding monies owing under this Agreement to NZSIGNCO (if any), will immediately fall due and payable.
Any Orders placed by the Customer prior to NZSIGNCO’s receipt of notice of termination shall be filled unless the parties agree otherwise.
The termination of this Agreement will deem any accounts the Customer holds with NZSIGNCO terminated.
Any Goods held by the Customer in respect of which NZSIGNCO holds title as at the date of termination shall be immediately returned to NZSIGNCO, subject to any prior agreement with NZSIGNCO as to the sale of those Goods by the Customer post-termination for a period to be agreed between the parties.
No failure or omission by a party to carry out or observe any of the terms of this Agreement will give rise to any claim against that party or be deemed a breach of this Agreement, if such failure or omission arises from any cause reasonably beyond the control of that party. The party unable to fulfil its obligations will as soon as reasonably practicable notify the other in writing of the reasons for its failure to fulfil its obligations and the effect of such failure. Should the delay or failure in the performance exceed 3 months, either party may terminate the Agreement by providing a written notice to the other party.
Entire Agreement: This Agreement constitutes the entire Agreement and supersedes and extinguishes all prior agreements and understandings (written or oral), between the Customer and NZSIGNCO. In the event of any conflict or inconsistency between this Agreement and the provisions of any document used by the Customer or any other arrangement between the parties, this Agreement prevails unless otherwise agreed in writing and signed by both parties.
Notices: Notices under this Agreement will be sufficiently given if posted or successfully transmitted by email to the intended recipient at their last known address. The Customer will notify NZSIGNCO in writing of any changes to the Customer’s postal, physical, and email addresses.
Variation: NZSIGNCO may amend this Agreement at any time. The amended terms and conditions will be posted on its Website. The Customer’s continued ordering of Goods will deem the Customer’s acceptance of the amended terms. If the Customer does not accept the amended terms, the Customer may terminate this Agreement and the version of the terms and conditions immediately previous to the amended terms shall continue to apply to Goods ordered prior to termination by the Customer.
Assignability: NZSIGNCO can at any time assign, novate or otherwise transfer, encumber or subcontract any of its rights and obligations under this Agreement to a third party.
Waiver: A party will not have waived or be deemed to have waived any provision of this Agreement unless the waiver is in writing and signed by that party.
Survivorship: Termination of this Agreement for any reason will not affect the rights and obligations of the parties that are intended to survive the termination, including but not limited to provisions in this Agreement relating to payment, failure to comply, risk and ownership, intellectual property, use, confidentiality, indemnification and limitation of liability.
Severability: If any part or provision of this Agreement is found to be illegal, invalid or unenforceable, that part or provision shall be modified to the extent necessary and reasonable in all circumstances to remedy the illegality, invalidity or unenforceability. If it cannot be modified, that part or provision will be void and severable and the remainder of this Agreement will not in any way be affected or impaired.
Non-Circumvent: The parties will not circumvent or attempt to circumvent the provisions and/or intent of this Agreement.
No relationship: This Agreement does not create any relationship of partnership, employment, agency or joint venture between the Customer and NZSIGNCO..
Governing Law: This Agreement is to be interpreted in accordance with and governed by the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the New Zealand Courts.
Counterparts: This Agreement may be executed in counterparts (which may be electronic or facsimile copies) and all of which, when taken together constitute the one document.