1. General
1.1 The following terms and conditions apply to all orders placed with and goods and services supplied by Silver & Ballard ("the Supplier").
1.2 Notwithstanding clause 1.1, the Supplier may by written notice to the Customer alter or replace these terms and conditions from time to time. All orders placed subsequently by the Customer shall be upon the altered or replaced terms and conditions.
2. Prices and Orders
2.1 The Supplier's prices are subject to alteration without notice. Prices are based on current rates for labour, freight, exchange, material cost and landing charges but the price payable by the Customer shall be the price ruling at the time the goods are made available or the services performed, adjusted to take account of changes in such rates and charges.
2.2 All prices are quoted in New Zealand dollars and are inclusive of GST and exclusive of any other taxes or duties, insurance, freight and handling charges in relation to the sale and delivery of the goods and services unless otherwise stated. The Customer shall pay any other taxes and duties, insurance, freight and handling charges in addition to the price quoted unless otherwise agreed.
2.3 Quotes are valid for 30 days or such lesser period as the Supplier shall stipulate.
2.4 Except as otherwise permitted by the supplier all orders must be in writing and on the Supplier's standard purchase order or production form (if any). Orders may be faxed or emailed. The Supplier will not be liable for any errors in receiving and recording the terms of any order not in writing. No order shall be binding on the Supplier until accepted in writing by the Supplier.
2.5 The Supplier will not be bound by clerical errors or omissions whether in computation or otherwise in any quotation, acknowledgment or invoice and the same shall be subject to correction.
3. Payment
3.1 Payment is due on the 20th of the month following the date of invoice unless otherwise stipulated. Payment is to be made without deduction or set off in New Zealand dollars in cash or in such other manner as the Supplier shall stipulate from time to time.
3.2 Where any payment is not made on the due date, then without prejudice to any other rights or remedies available to the Supplier under these terms and conditions or at law or in equity or otherwise the Supplier may:
3.2.1 Require immediate payment of any or all amounts payable by the Customer to the Supplier (whether or not the same is due for payment);
3.2.2 Withdraw any discounts offered in respect of any existing and/or future orders;
3.2.3 Charge interest, by way of liquidated damages, on all overdue accounts at the rate of 2.5% per month calculated on a daily basis from the date on which payment was due until payment is made;
3.2.4 Withhold deliveries or cancel undelivered orders or portions of such orders, retain as liquidated damages any moneys paid by the Customer and sue the Customer for damages; and/or
3.2.5 Cancel any other order or contract or arrangement between the Supplier and the Customer or suspend the performance of such order, contract or arrangement pending payment without being liable to the Customer for any losses of any kind that it might suffer.
3.3 The Customer shall upon demand reimburse the Supplier for all costs (including legal costs on a solicitor/client basis), expenses or other sums incurred by the Supplier in the recovery of the moneys due and/or the goods, which sum shall also carry interest at the rate specified in clause 3.2.3 if unpaid within one calendar month of demand having been made.
3.4 The Supplier shall be entitled to apply or appropriate any payments to any account of the Customer. Should the Customer have a number of accounts the Supplier may combine any accounts and offset any amount between accounts.
3.5 The Supplier reserves the right to impose a credit limit at any time, which may be altered or withdrawn at the Supplier' discretion with effect from the date that the Supplier notifies the Customer of such change.
3.6 If at any time it deems the credit of the Customer to be unsatisfactory the Supplier may require security for payment and may suspend performance of its obligations under this contract until the provision of sufficient security. All costs and expenses of, or incurred by, the Supplier as a result of such suspension and any recommencement shall be payable by the Customer upon demand.
4. Delivery and Returns
4.1 The Supplier will use its best endeavours to deliver the goods and services at the time requested by the Customer but will not be responsible for any loss or damage (in either case, of any kind and whether direct, indirect or consequential) arising from any delay in the delivery of the goods and services from any cause whatsoever nor shall any such delay entitle the Customer to cancel any order or refuse to accept delivery at any time or refuse or delay payment for the goods and services.
4.2 The Supplier's delivery obligations shall be limited to making the goods available at the Supplier's premises unless otherwise agreed.
4.3 Where the Supplier has agreed to deliver the goods to the Customer's premises the Customer shall ensure that the Supplier has uninterrupted access to the Customer's premises to enable the goods to be delivered by the Supplier.
4.4 Where the goods are not collected by the Customer within seven days of the Customer being notified by the Supplier that the goods are available for collection or, where the goods are to be delivered to the Customer's premises, access is not provided to the Supplier, the Customer shall pay the Supplier upon demand such amount calculated by the Supplier as will compensate the Supplier for wasted time and expenditure and any storage or other charges.
4.5 The Customer will promptly check for correctness in deliveries made by the Supplier and will advise the Supplier of any shortages, breakages or defective goods within fourteen days of receipt of the goods by the Customer. Where the Supplier is satisfied, after carrying out its own investigation, that there has been short delivery or error in dispatch or breakage or any goods are defective in each case due to the fault of the Supplier, and subject to clause 4.6, the Supplier will provide, at its discretion, replacement goods or a credit, refund or discount equivalent to the price paid or payable in respect of the goods which have been short delivered, are broken or defective. To the extent permitted by law, this shall be the Customer's sole remedy.
4.6 Where up to 5% more or less than the quantity of the goods ordered by the Customer are delivered the quantity of goods over supplied or under supplied shall be accepted by the Customer and added to or deducted from the price payable for the goods accordingly.
4.7 Orders, once accepted by the Supplier may not be cancelled, except with the prior written approval of the Supplier (which may only be given where the supplier has not incurred or committed to incur any cost or expense in relation to the goods). Goods may not be returned for credit without the prior authorisation in writing of the Supplier and the issue of a return authorisation number and goods returned for credit will only be accepted where the goods are in their original condition and packaging, with all literature and accessories included. Returns may be subject to an administration fee. Unauthorised returns, if accepted, will be subject to an unscheduled return fee. No refunds will be given. Freight and insurance charges associated with returns are payable by the Customer.
5. Risk and Ownership
5.1 Risk in any goods supplied shall pass when the goods are delivered to the Customer or into the custody of the Customer's carrier and it shall be the Customer's obligation to insure the goods from that time.
5.2 Title to and ownership of the goods shall not pass to the Customer until all moneys payable to the Supplier (whether for the goods or otherwise) have been paid by the Customer in full. Until title in the goods passes to the Customer, the Customer must:
5.2.1 Keep the goods in a good and secure condition;
5.2.2 Not obliterate, damage or obscure any labels or other identifying marks applied to the goods by or on behalf of the Supplier;
5.2.3 Keep the goods fully insured to their full replacement value against all risks;
5.2.4 Not encumber the goods in any way; and
5.2.5 Hold and keep the goods separately from other property in the possession of the Customer (including goods already supplied by the Supplier) and in a manner which enables the goods to be easily identifiable as goods supplied by the Supplier.
5.3 The Customer shall be at liberty to resell the goods in the ordinary course of the Customer's business. If the Customer resells the goods or any of them before payment is made the Customer shall hold the proceeds of resale of the goods or any of them in trust for the Supplier and account to the Supplier for all moneys owed by the Customer to the Supplier. The Customer shall ensure that any proceeds are paid into a separate bank account so that the proceeds are at all times identifiable and traceable. If the Customer resells the goods or any of them so as to create a debt owed to the Customer, the Customer hereby assigns all legal and equitable title to that debt to the Supplier and the Customer hereby irrevocably appoints the Supplier as its attorney with all powers permitted by law for the purpose of effecting any such assignment and recovery of any such debt in the name of the Customer for the benefit of the Supplier.
5.4 The Customer's ability to resell the goods shall automatically cease if a receiver, receiver and manager, statutory manager or administrator is appointed over any of the assets or undertaking of the Customer or if a winding up order is made against the Customer or if the Customer goes into voluntary liquidation (otherwise than for the purposes of a reconstruction or amalgamation approved by the Supplier) or calls a meeting of or makes any arrangement or composition with creditors or commits any act of bankruptcy.
5.5 The Supplier shall be entitled to repossess all goods which it claims belongs to it at any time without notice and for such purpose it shall be lawful for the Supplier and/or its agent to enter any premises where such goods are or are believed to be and to remove such goods. The Customer hereby indemnifies and agrees to hold harmless the Supplier against any damage howsoever caused in relation to such entry and removal including consequential loss or damage to any third party or to the Customer.
6. Personal Property Securities Act 1999
6.1 The Customer acknowledges that the Supplier holds a "security interest" in the goods and any proceeds of the sale of the goods pursuant to Section 17 of the Personal Property Securities Act 1999 ("the PPSA") and that the Supplier may register a financing statement in respect of the goods and any sale proceeds in accordance with the provisions of the PPSA.
6.2 The Customer shall provide all information, execute or arrange for execution of all documents and do all other things that the Supplier may require to ensure that the Supplier has a perfected first ranking security interest in the goods under the PPSA. The Customer shall immediately upon request by the Supplier, procure from any person considered by the Supplier to be relevant to its security position such agreements and waivers as the Supplier may at any time require.
6.3 The Customer waives its rights to receive a verification statement in respect of any financing statement or financing change statement registered by the Supplier under the PPSA and agrees that as between the Supplier and the Customer, the Customer shall have no rights under (or by reference to) sections 114(1)(a), 116, 117(1)(c), 119, 120(2), 121, 125, 129, 131, 132, 133 and 134 of the PPSA and where the Supplier has rights in addition to those in part 9 of the PPSA, those rights shall continue to apply.
6.4 The Customer shall immediately notify the Supplier of any change in the Customer's name, address details and any other information provided to the Supplier to enable the Supplier to register a financing change statement if required.
7. Warranties and Liabilities
7.1 Save for any manufacturers warranties provided or assigned to the Customer and any warranties and conditions conferred in writing by the Supplier on the Customer in relation to particular goods sold or services supplied by the Supplier to the Customer, the Supplier makes no representation and gives no assurance, condition or warranty of any kind to the Customer (including any assurance, condition or warranty implied by law to the extent that the assurance, condition or warranty can be excluded) in relation to the goods and services and accepts no liability for any assurance, condition, warranty, representation, statement or term not expressly set out in these terms and conditions. Where the Customer is acquiring the goods and services for business purposes the Customer specifically acknowledges that the provisions of the Consumer Guarantees Act 1993 are excluded.
7.2 The benefit of any warranties and conditions conferred by the Supplier on the Customer are personal to the Customer and are not assignable.
7.3 To the extent permitted by law, the Supplier shall not be liable to the Customer or any other person for any indirect or consequential loss or damage of any kind arising out of defective goods or any breach by the Supplier of its warranties or conditions or obligations under these terms and conditions or negligence or otherwise and regardless of the legal basis of any claim, the Supplier's maximum liability to the Customer under any circumstances is limited to a sum not exceeding the invoiced value of the goods and services in relation to which the claim relates.
8. Force Majeure
8.1 The Supplier shall not be responsible to the Customer for failure to perform any of its obligations due to causes beyond its control. In such circumstances the Supplier shall have the right at its discretion to delay the performance of its obligations until such causes cease or to cancel the whole or any part of any order without incurring any liability to the Customer.
9. Customer's Property
9.1 The Customer shall provide any masters and artwork required by the Supplier and shall be responsible for ensuring the suitability, fitness for purpose and correctness of the same.
9.2 The Customer shall obtain all necessary consents and approvals from third parties to enable the Supplier to use, copy, replicate or reproduce any masters and artwork for the purposes of manufacturing the goods and hereby indemnifies the Supplier from and against any liability, loss, damage, costs or expenses suffered or incurred by the Supplier arising from any breach or alleged breach of the intellectual property rights of any third party in any masters or artwork.
9.3 The Supplier shall take reasonable steps to keep any masters and artwork in a good and secure condition and, subject to clause 9.4, shall return the masters and artwork to the Customer once an order is filled.
9.4 In addition to any other lien to which the Supplier may by law be entitled, the Supplier shall be entitled to a general lien on any masters, artwork and other property of the Customer in the Supplier's possession (whether or not payment has been made partly or wholly for the goods) for all amounts due from the Customer and may sell (privately, by tender or by auction) all or any masters, artwork and other property of the Customer if after receiving 28 days prior written notice of intention to sell the Customer fails to pay such amounts to the Supplier. The Supplier shall apply the sale proceeds towards all amounts owed to the Supplier by the Customer and shall pay any surplus to the Customer.
10. Statutory Requirements
10.1 The Customer shall be responsible for ensuring that and goods are marked, labelled and packaged in accordance with applicable laws.
11. Waiver and Variation
11.1 The Supplier shall not be deemed to have waived or varied any provision of these terms and conditions or any right or remedy which it may have under these terms and conditions or at law or in equity or otherwise unless the waiver or variation is in writing signed by the Supplier. No wavier of a breach shall be deemed to be a wavier of any other breach or any further breach.
12. Conflict
12.1 In the event of any conflict between the terms of any quotation or order confirmation and these terms and conditions, the express provisions contained in the quotation or order confirmation, as the case may be, shall prevail. These terms and conditions shall prevail over the Customer's terms and conditions (if any).
13. Governing Law
13.1 These terms and conditions are governed by the laws of New Zealand and the parties agree to submit to the non-exclusive jurisdiction of the New Zealand Courts.
