Terms of Trade
Terms and conditions
1.1 DR shall mean Display Resources Ltd, or any Agents or employees thereof.
1.2 ‘Customer’ shall mean the customer, any person acting on behalf of and with the authority of the customer, or any person purchasing or hiring goods and services from DR.
1.3 ‘Guarantor’ shall mean that person (or persons), or entity, who agrees to be liable for the debts of the client on a principal debtor basis.
1.4 ‘Goods and Services’ shall mean all goods, services and consultation provided by DR to the customer including without limitation the hire of all goods, delivery and installation the manufacture, design and building of displays, project management, contracting, consultation, advice or recommendations and all charges for labour, insurance charges, or any fee or charge associated with the supply of goods and services by DR to the customer as described on any invoices or quotation from DR or any work authorisation given in writing by the customer.
1.5 ‘Price’ shall mean the cost of the goods and services as agreed between DR and the customer subject to Clause 4 of this contract.
2.1 Any instructions received by DR from the Customer for the supply of Goods and Services shall constitute a binding contract and acceptance of the terms and conditions contained herein, whether or not the reservation or confirmation documents are signed by the customer.
2.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
2.3 The Customer shall give DR not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, change in the Customer’s address, phone number, or business practice). The Customer shall be liable for any loss incurred by DR as a result of the Customer’s failure to comply with this clause.
2.4 Goods and Services are supplied by DR only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
3 COLLECTION AND USE OF INFORMATION
3.1 The customer authorizes DR to collect, retain and use any information about the customer, for the purpose of assessing the customer’s credit worthiness, enforcing any rights under the contract and services provided by DR to any other party.
3.2 The customer authorizes DR to disclose any information obtained to any person for the purposes set out in Clause 3.1.
3.3 Where the customer is a natural person, the authorities under Clause 3.1 and 3.2 are authorities or consents for the purposes of the Privacy Act 1993.
4.1 Where a quotation is given by DR for Goods and Services:
4.1.1 The quotation shall be valid for thirty (30) days from the date of issue, and
4.1.2 The quotation shall be exclusive of Goods and Services Tax and any other taxes and duties that may be applicable unless specifically stated to the contrary.
4.2 Where Goods and Services are required in addition to the quotation, the Customer agrees to pay for the additional cost of such Goods and Services.
5.1 Where no price is stated in writing or agreed to orally, the goods and services shall be deemed to be sold at the current amount as such goods and services are sold by DR at the time of the contract.
5.2 The price may be increased by the amount of any reasonable increase in the cost of supply of the goods and services that is beyond the control of DR between the date of the contract and the delivery of the goods and services.
5.3 All Prices are subject to GST and other taxes and duties that may be applicable and shall be added to the Price except when they are expressly included in the Price.
6.1 HIRE Goods including and delivery, collection and installation must be paid for in full prior to the hire commencement date.
6.2 At DR’s sole discretion a deposit may be required on acceptance for all Goods and Services not specified in clause 6.3 with a second deposit required at least fifteen (15) day prior to delivery of the Goods and Services. Any balance must be paid in full within seven (7) days following the date of the invoice, unless otherwise agreed in writing.
6.6 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Customer and DR.
6.7 Any payment received from overseas bank accounts shall incur an additional $25.00+GST charge to cover exchange conversion fees from the bank.
7 DELIVERY OF GOODS AND SERVICES
7.1 At DR’s sole discretion delivery of the Goods and Services shall take place when the Customer takes possession of the Goods and Services at the Customer’s nominated address (in event that the Goods and Services are delivered by DR or DR’s nominated carrier).
7.2 Delivery of the Goods and Services to a third party nominated by the Customer is deemed to be delivery to the Customer for the purpose of this agreement.
7.3 The failure of DR to deliver shall not entitle either party to treat this contract as repudiated.
8 OWNERSHIP OF PURCHASED GOODS AND SERVICES
8.1 DR and Customer agree that ownership of the Goods and Services shall not pass until:
8.1.1 the Customer has paid DR all amounts owing for the particular Goods and Services; and
8.1.2 the Customer has met all other obligations due by the Customer to DR in respect of all contracts between DR and the Customer.
8.2 Receipt by DR 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 the DR’s ownership or rights in respect of the Goods and Services shall continue.
8.3 Until such time as ownership of the Goods and Services shall pass from DR to the Customer DR may give notice in writing to the Customer to return the Goods and Services or any part of them to DR. Upon such notice being given the rights of the Customer to obtain ownership or any other interest in the Goods and Services shall cease; and
8.3.1 the Customer is only a Bailee of the Goods and Services and until such time as DR has received payment in full for the Goods and Services then the Customer shall hold any proceeds from the sale or disposal of the Goods and Services, up to and including the amount the Customer owes to DR for the Goods and Services, on trust for DR; and
8.3.2 until such time that ownership in the Goods and Services passes to the Customer, if the Goods and Services are converted into other products, the parties agree that DR will be the owner of the end products; and
8.3.3 if the Customer fails to return the Goods and Services to DR the DR or DR’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Goods and Services are situated as the invitee of the Customer and take possession of the Goods and Services, and DR will not be liable for any reasonable loss or damage suffered as a result of any action by DR under this clause.
9 HIRE ITEMS
9.1 All Hire Items shall at all times remain the property of DR and are returnable on demand by DR. In the event that all the Hire Items are not returned to DR in the condition in which it was delivered or collected DR retains the right to charge the cost to repair or replacement of the Hire Item.
9.2 The Customer acknowledges and agrees that they loan the Hire Items at their own risk and the Customer is responsible for safeguarding the Hire Item/s until such Hire Item/s are returned to, or collected by, DR.
10.1 Storage will be charged at the quoted rate or at $12.50per square meter or $25.00 per month whichever is the greater.
10.2 Where the Customer agrees (or by default does not collect goods as agreed with DR) to have DR store any Goods and Services at DR’s premises they agree to employees of DR taking all care with the Goods and Services with DR not being responsible or liable for any damage caused while being stored.
11.1 The customer authorizes DR to contact either as principal or Agent for the provision of goods and services that are the matter of this contract.
11.2 Where DR enters into a contract of the type referred to in Clause 11.1, it shall be read with and form part of this agreement and the customer agrees to pay any amounts due under the contract.
12 RISK AND DEFAULT CONSEQUENCES
12.1 If DR retains ownership of the Goods and Services nonetheless, all risk for the Goods and Services passes to the Customer on delivery.
12.2 If any of the Goods and Services are damaged or destroyed following delivery but prior to ownership passing to the Customer, DR is entitled to receive all insurance proceeds payable for the Goods and Services. The production of these terms and conditions by DR is sufficient evidence of DR’s rights to receive the insurance proceeds without the need for any person dealing with DR to make further enquiries.
12.3 Without prejudice to any other remedies DR may have, if at any time the Customer is in breach of any obligation (including those relating to payment) DR may suspend or terminate the supply of Goods and Services to the Customer and any of its other obligations under the terms and conditions. DR will not be liable to the Customer for any loss or damage the Customer suffers because DR has exercised its rights under this clause.
12.4 Where payment is not made by the due date, DR reserves the right to charge additional default interest of 3% per month to the account. The charging of interest does not imply the granting of any extension of any credit terms.
12.5 In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by DR.
12.6 Any expenses, disbursements and legal costs incurred by DR in the enforcement of any rights contained in this contract shall be paid by the customer, including any reasonable Solicitor’s fees or debt collection agency fees.
12.7 If any account remains overdue after thirty (30) days then an amount of the greater of fifteen dollars ($15.00) or ten percent (10%) of the amount overdue (up to a maximum of one hundred and fifty dollars ($150.00)) shall be levied for administration fees which sum shall become immediately due and payable.
12.8 Without prejudice to DR’s other remedies at law DR shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to DR shall, whether or not due for payment, become immediately payable in the event that:
12.8.1 any money payable to DR becomes overdue, or in DR’s opinion the Customer will be unable to meet its payments as they fall due; or
12.8.2 the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an agreement with creditors, or makes an assignment for the benefit of its creditors; or
12.8.3 a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
13.1 No claim relating to Goods and Services will be considered unless made within seven (7) days of completion of the Goods and Services.
14.1 The Consumer Guarantees Act 1993, the Commerce Act 1996, the Fair Trading Act 1987 and other statues may imply warranties or conditions or impose obligations upon DR which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on DR, DR’s liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.
14.1.1 The guarantee contained in the Consumer Guarantees Act 1993 are excluded where the customer acquires goods and services from DR for the purposes of a business in terms of Section 2 and 43 of that Act.
14.2 Except as otherwise provided by Clause 14.1, DR shall not be liable for:
14.2.1 Any loss or damage of any kind whatsoever including consequential loss whether suffered or incurred by the customer or another person, and whether in contract, or tort, or otherwise and whether such loss or damage arises directly or indirectly from goods and services provided by DR to the customer, and
14.2.2 The customer shall indemnify DR against all claims and loss of any kind whatsoever caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of DR or otherwise, brought by any person in connection with any matter, act, omission, or error by DR, its Agents or employees in connection with the goods and services.
15 PRIVACY ACT 1993
15.1 The Customer and the Guarantor/s (if separate to the Customer) authorises DR to:
15.1.1 collect, retain and use any information about the Customer and/or Guarantors, for the purpose of assessing the Customer’s and/or Guarantors creditworthiness or marketing products and services to the Customer and/or Guarantors; and
15.1.2 disclose information about the Customer and/or Guarantors, whether collected by DR from the Customer and/or Guarantors directly or obtained by DR 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 Customer and/or Guarantors.
15.2 Where the Customer and/or Guarantors are an individual the authorities under clause 15.1 are authorities or consents for the purposes of the Privacy Act 1993.
15.3 The Customer and/or Guarantors shall have the right to request DR for a copy of the information about the Customer and/or Guarantors retained by DR and the right to request DR to correct any incorrect information about the Customer and/or Guarantors held by DR.
16 PERSONAL PROPERTY SECURITIES ACT 1999 (“PPSA”)
16.1 Upon assenting to these terms and conditions, as in clause 2, the Customer acknowledges and agrees that:
16.1.1 these terms and conditions constitute a security agreement for the purposes of the PPSA; and
16.1.2 a security interest is taken in all Goods and Services previously supplied by DR to the Customer (if any) and all Goods and Services that will be supplied in the future by DR to the Customer.
16.2 The Customer undertakes to:
16.2.1 sign any further documents and/or provide any further information (such information to be completed, accurate and up-to-date in all respects) which DR may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
16.2.2 indemnify, and upon demand reimburse DR for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods and Services charged thereby;
16.2.3 not register a financing change statement or a change demand without the prior written consent of DR; and
16.2.4 immediately advise DR of any material change in its business practices of selling the Goods and Services which would result in a change in the nature of proceeds derived from such sales.
16.3 DR and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
16.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
16.5 Unless otherwise agreed to in writing by DR, the Customer waives its rights to receive a verification statement in accordance with section 148 of the PPSA.
16.6 The Customer shall unconditionally ratify any actions taken by DR under clauses 16.1 to 16.5
17 SECURITY AND CHARGE
17.1 Despite anything to the contrary contained herein or any other rights which DR may have howsoever:
17.1.1 where the Customer and/or Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer 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 DR or DR’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that DR (or DR’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.
17.1.2 should DR elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify DR from and against all DR’s costs and disbursements including legal costs on a solicitor and own client basis.
17.1.3 the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint DR or DR’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause and its sub-clauses.
18.1 The Customer shall inspect the Goods and Services on delivery and shall within twenty four (24) hours of delivery (time being of the essence) notify DR of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford DR an opportunity to inspect the Goods and Services within reasonable time following delivery if the Customer believes the Goods and Services are defective in any way. If the Customer shall fail to comply with these provisions the Goods and Services shall be presumed to be free from any defect or damage, For defective Goods and Services, which DR has agreed in writing that the Customer is entitles to reject, DR’s liability is limited to either (at DR’s discretion) replacing the Goods and Services or repairing the Goods and Services.
18.2 Goods and Services will not be accepted for return other than in accordance with clause 18.1 above.
19 INTELLECTUAL PROPERTY
19.1 Where DR has designed, drawn or written Goods and Services for the Customer, then the copyright in those designs and drawings and documents shall remain vested in DR, and shall only be used by the Customer at DR’s discretion.
19.2 The Customer warrants that all designs or instructions to DR will not cause DR to infringe any patent, registered design or trademark in the execution of the Customers order and the Customer agrees to indemnify DR against any action taken by a third party against DR in respect of any such infringement.
20 CUSTOMER’S DISCLAIMER AND CANCELLATION
20.1 The Customer hereby disclaims any right to rescind, or cancel any contract with DR or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by DR and the Customer acknowledges that the Goods and Services are bought relying solely upon the Customers skill and judgment.
20.2 In the event of cancellation by the customer up to 21 days prior to Delivery, DR retains the right to charge whichever is the greater of a cancellation fee equivalent to 50% of the value of the contract as set against any non-discounted Price or, any loss incurred by DR (including but limited to, any loss of profits) up to the time of cancellation. Once inside the 21 days prior to Delivery the full amount of the contract will be due for payment by the Customer.
20.3 DR may cancel any contract to which these terms and conditions apply or cancel delivery of Goods and Services at any time before the Goods and Services are delivered by giving written notice to the Customer. On giving such notice DR shall repay to the Customer any sums paid in respect of the Price. DR shall not be liable for any loss or damage whatsoever arising from such cancellation.
21.1 The Customer shall not assign all or any of its rights or obligations under this contract without the written consent of DR.
21.2 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.
21.3 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.
21.4 DR shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expenses (including loss of profit) suffered by the Customer arising out of a breach by DR of these terms and conditions.
21.5 In the event of any breach of this contract by DR the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods and Services.
21.6 The Customer shall not be entitled to set off against, or deduct from the Price, and sums owed or claimed to be owed to the Customer by DR nor to withhold payment of any invoice because part of that invoice is in dispute.
21.7 DR may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
21.8 DR 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 DR notifies the Customer of such change.
21.9 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.
21.10 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.
21.11 The failure by DR to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect DR’s right to subsequently enforce that provision.