TERMS OF TRADE
Wave Design Consultants Limited (“WAVE”)
1. Terms: These terms are the terms on which goods are supplied and services are provided notwithstanding anything to the contrary in any other specification, tender, quotation, contract or acceptance document. No form of acceptance contrary to the below terms will be effective to alter the terms on which we have agreed to provide goods and/or services.
2. Quotation/Work Specifications: All requests for goods and/or services must be in writing. We will not be liable for errors or omission arising from an oversight or a misinterpretation of a verbal instruction from you. Quotations shall be based on specifications supplied by you at the time of quoting. Any changes to the specifications and/or content of the project must be requested in writing and may result in increased costs. We will endeavour to keep you advised of any such altered charges.
3. Price: The prices specified for the goods or services are based on your request for quotation or order. All prices are quoted in $NZ and are exclusive of delivery and insurance costs (if any). Insurance and delivery costs (if any) will be added to the price. Any quotation we give may be withdrawn at any time, and will become null and void if not accepted by you in writing within 30 days of the date of quotation. Prices quoted are based on rates applicable on the date of quotation. We reserve the right to pass on any increase in rates incurred by us between the date of quotation and time of delivery. Generally, we will quote prices exclusive of GST. Unless the price specifies that GST is included, you must pay GST in addition to the price. You may not withhold the price or deduct or set-off any amount against the price.
4. Property Supplied by you: All quotations are based on copy, photographs, images and illustrations being supplied in hard copy or digital format in a quality suitable for the required use as specified in the quotation. Any additional work required to obtain photographs, images and illustrations in a suitable condition shall be carried out at your expense. Your property and all property supplied to us by or on behalf of you shall be held by us at your sole risk. We shall not be liable for sub-standard work caused by defects or unsuitability of such materials or equipment supplied by you.
5. Payment: Generally, the price shall be payable in full on or before the 20th of the month following invoice. However, we may in our absolute discretion require payment of a deposit or that the price be paid wholly or partly in advance Where a project requires input from us over more than 1 month, we may part charge the work completed during each month. All payments must be made in full without any set-off or deduction. We may suspend any credit and require you to pay all outstanding amounts in full. We may elect not to sell or deliver goods to you or not to provide services to you if payment is not received in accordance with our requirements. Should you default in your payment obligations we may elect to cancel this contract by giving you three days written notice of cancellation.
6. Default: In the event that your account is overdue, default interest will be payable at our discretion at the rate of 2% per month (or part month) on any amount due and unpaid. You acknowledge that payment of default interest is without prejudice to our other rights and remedies. If we take action to recover any amount due from you, or to otherwise protect our interests in relation to money owed to us, you agree to pay our costs (including solicitor/client and debt collection costs). Such costs and expenses shall bear interest at the rate specified in this clause, from the date 7 days after we provide details of the costs and expenses to you up to the date of full reimbursement.
7. Proofs: We shall not be liable for errors in the finished work where a proof has been submitted to and approved by you. All proofs, including proofs subsequent to amendments or alterations shall be charged to you. We do not guarantee that final production (printed or otherwise) will exactly match colour proofs because of variations in proof preparation methods and substrates. All quotes include up to two laser/pdf proofs as part of our service. Any additional proofs required will be charged in addition to the quote.
8. Electronic Data Storage – Digital Artwork/Scanned Images: Unless otherwise specified in writing, in all cases where you have been separately invoiced for and paid for such work, the ownership of material remains with you. You will be responsible for costs of any necessary alterations, duplicating corrections or downloads of the above mentioned material. Unless notified in writing within 12 months of the invoice date, we may dispose of any such material.
9. Illegal or Libellous Matter: We shall not be required to print any matter which (in our opinion) is or may be illegal or libellous in nature or in breach of any copyright, patent or design or the Fair Trading Act 1986 or any other statute. You fully indemnify us in respect of any claims, costs and/or expenses arising from or out of any illegal or libellous matter or any breach of the Fair Trading Act 1986 or any other statute or any infringement of copyright, patent or design.
10. Suspension or Cancellation of Work: The suspension of any work on your instructions for a period of 30 days or more shall entitle us to payment in full for all work in progress at time of suspension. We may revise the quotation for the uncompleted portion of the order before proceeding. Orders shall not be cancelled without our consent and upon terms which compensate us for all expenses and disbursements incurred and otherwise protect us against loss.
11. Excusable delay: We shall not be responsible for any delay, default, loss or damage due to any industrial disputes, accidents, acts of God, equipment failure, mischievous damage or other causes beyond our reasonable control.
12. On-sale/subcontractors: If you on-sell the goods to any person, you must not make any representation inconsistent with these terms. We have no responsibilities to persons other than you.
13. Copyright: Where we produce original artwork, photography, advertisements, internet websites or printed material, any copyright in the final work shall be owned by us until such time as payment for such work has been made in full at which time the copyright in the final work shall vest jointly in you and us. Copyright in all rejected or superseded designs shall be owned by us.
14. Ownership of Goods supplied: Prior to you paying in full for all goods supplied by us to you, ownership in any such goods will remain with us. If you fail to pay on the due date, or breach these terms, you authorise us to enter any premises to recover goods owned by us. You indemnify us for any losses or costs we incur in recovering such goods. If the premises are those of a third party, we may enter and recover the goods as your agent. We will be entitled to sell any goods held by us and apply the proceeds towards amounts owed by you if you have failed to pay any amount owing. If you on-sell any goods (supplied by us) before ownership has passed to you, the proceeds of such sale shall be received and held by you in trust for both you and us. Our interest as beneficiary under that trust shall be that portion of the proceeds equalling the amount of your debt to us. You must keep goods insured against fire, accident, theft and other risks as we may require in the names of you and us for our respective rights and interests and providing for payment of policy proceeds to us as unpaid or partly unpaid vendor until such time as payment in full is made for the goods and title has passed to you.
15. Suitability of Goods: No guarantee shall be given or implied that the goods or services supplied at your instructions or designed by us to those instructions are suitable for specific market requirements.
16. Security Interest: You agree that, for the purposes of the Personal Property Securities Act 1999 (“the PPSA”), we have a purchase money security interest in the goods supplied by us to you (as detailed in each invoice supplied to you) as well as the proceeds of such goods until such time as we have been paid in full for such goods. You also agree that we have a general security interest in all present and after acquired goods for any indebtedness you have to us. We may allocate payment of indebtedness for any debt to any installment of goods provided to you as we see fit. You agree to sign any documents required for us to perfect our security interest under the PPSA and authorise us to sign any such documents as your attorney.
17. Contracting out of the PPSA: To the extent permitted under the PPSA you agree to waive your rights as debtor. In particular, but without limitation, you agree to waive your right to receive a copy of the verification statement confirming registration of a financing statement or a financing change statement relating to any security interest we may have in goods supplied to you from time to time.
18. Extent of liability: All warranties implied by customary practice, at law or under statute are excluded to the extent legally permitted. Our liability in relation to goods supplied or services provided is limited to direct loss caused by our breach of these terms up to a maximum of 20% of the contract value of the goods supplied or services provided. We shall not otherwise be responsible for any cost, loss, damage or claim arising directly or indirectly in relation to goods supplied or services provided by us, whether arising in contract, tort (including negligence) or otherwise. Without limiting the foregoing, we will not be responsible for any indirect, consequential or special loss, loss of profits or economic loss. No warranty shall be given or responsibility accepted by us to ensure that goods produced or services provided comply with the requirements of any legislation relating to design and/or marketing and/or labelling and/or packaging of goods. Compliance with the requirements of any such legislation shall be your sole responsibility.
19. Consumer Guarantees Act: You are a commercial customer if you acquire goods or services from us: (a) that are goods or services not ordinarily acquired for personal, domestic or household use; (b) for use in a business; or (c) for resale or supply to other persons in trade. If you are a commercial customer and you on-sell goods supplied by us to any customer who is not a “consumer” you agree to: (a) contract out of the Consumer Guarantees Act in respect of the sale of the goods; and (b) require your customer to contract out of the Consumer Guarantees Act in respect of any further sales of the goods (other than for sale to a consumer) and to require any sub- sellers to do the same. You indemnify us for any damage or costs suffered as a result of your failure to comply with this clause. You are a consumer if you are not a commercial customer as defined above. If you are consumer, nothing in this document limits or excludes any right you have under the Consumer Guarantees Act 1993.
20. Privacy Act 1993: You authorise us to disclose any information provided in the credit application to any person or company for the purpose of assessing your credit worthiness and to use or disclose any of the information for the purpose of assisting us to carry out our usual business function. You further authorise us to provide credit references relating to you when requested by third parties. The Privacy Act may entitle you to have access to, and if necessary, to request the correction of personal information that we hold about you.
21. Definition of “Goods”: The term “goods”, as used in these terms and conditions, means all photographs, images and illustrations being supplied in hard copy or digital format, including proofs and associated goods supplied by us to you from time to time, together with the proceeds of such goods.
22. New Zealand Laws: The parties acknowledge and agree New Zealand law governs these terms of trade and any dispute arising out of these terms of trade.