1.1 “SDL” shall mean Souness Developments Limited trading as SounessDevelopments Limited Australasia 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 products and services from SDL.
1.3 “Goods” shall mean:
1.3.1 all Goods of the general description specified or described on this website by SDL to the Customer; and
1.3.2 all Goods supplied by SDL to the Customer; and
1.3.3 all inventory of the Customer that is supplied by SDL; and
1.3.4 all Goods supplied by SDL and further identified in any invoice issued by SDL to the Customer, which invoices are deemed to be incorporated into and form part of this agreement; and
1.3.5 all Goods that are marked as having been supplied by SDL or that are stored by the Customer in a manner that enables them to be identified as having been supplied by SDL; and
1.3.6 all of the Customer’s present and after-acquired Goods that SDL has performed work on or to or in which goods or materials supplied or financed by SDL have been attached or incorporated.
1.3.7 The above descriptions may overlap but each is independent of and does not limit the others.
1.4 “Goods and Services” shall mean all goods, products, services and advice provided by SDL to the Customer and shall include without limitation the design and supply of flag and banner display products and all associated goods and services and all charges for labour, hire charges, insurance charges, or any fee or charge associated with the supply of Goods and Services by SDL to the Customer.
1.5 “Price” shall mean the cost of the Goods and Services as agreed between SDL and the Customer and includes all disbursements (including freight) e.g. charges SDL pay to others on the Customer’s behalf subject to clause 4 of this contract.
2.1 Any instructions received by SDL from the Customer for the supply of Goods and Services shall constitute a binding contract and acceptance of the terms and conditions contained herein.
3. COLLECTION AND USE OF INFORMATION
3.1 The Customer authorises SDL to collect, retain and use any information about the Customer, for the purpose of assessing the Customer’s credit worthiness, enforcing any rights under this contract, or marketing any Goods and Services provided by SDL to any other party.
3.2 The Customer authorises SDL 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 clauses 3.1 and 3.2 are authorities or consents for the purposes of the Privacy Act 1993.
4.1 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 SDL at the time of the contract.
4.2 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 SDL between the date of the contract and delivery of the Goods and Services.
5.1 Unless otherwise agreed payment for the Goods and Services to be supplied by SDL shall be made in full prior to delivery.
5.1.1 Credit facilities will be made available to qualifying Customers subject to their completion of an account application form provided by SDL, and the authorisation of the application by SDL.
5.1.2 Where such credit facilities have been authorised, unless otherwise agreed payment for the Goods and Services supplied by SDL shall be made in full on or before the 20th day of the month following the date of the invoice (“the due date”).
5.1.3 In special circumstances where at SDL’ discretion credit facilities have been made available in advance of formal application and, or authorisation procedures, these Terms and Conditions shall apply, and unless otherwise agreed payment for the Goods and Services supplied by SDL shall be made in full on or before the 20th day of the month following the date of the invoice (“the due date”).
5.2 Interest may be charged on any amount owing after the due date at the rate of 2.5% per month or part month.
5.3 Any expenses, disbursements and legal costs incurred by SDL 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.
5.4 Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
6.1 Where a quotation is given by SDL for Goods and Services:
6.1.1 Unless otherwise stated the quotation shall be valid for sixty (60) days from the date of issue; and
6.1.2 The quotation shall be exclusive of goods and services tax unless specifically stated to the contrary;
6.2 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.
6.3 Unless otherwise stated packaging, despatch and freight costs will be additional unless specifically stated to the contrary;
7.1 The Customer authorises SDL to contract either as principal or agent for the provision of Goods and Services that are the matter of this contract.
7.2 Where SDL enters into a contract of the type referred to in clause 7.1 it shall be read with and form part of this agreement and the Customer agrees to pay any amounts due under that contract.
8.1 The goods and services remain at SDL’s risk until delivery to the Customer.
8.2 Delivery of goods and services shall be deemed complete when SDL gives possession of the goods and services directly to the Customer or possession of the goods and services is given to a carrier, courier, or other bailee for purposes of transmission to the Customer.
8.3 The time agreed for delivery shall not be an essential term of this contract.
9. TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999)
9.1 Title in any Goods and Services supplied by SDL passes to the Customer only when the Customer has made payment in full for all Goods and Services provided by SDL and of all other sums due to SDL by the Customer on any account whatsoever. Until all sums due to SDL by the Customer have been paid in full, SDL has a security interest in all Goods and Services.
9.2 If the Goods and Services are attached, fixed, or incorporated into any property of the Customer, by way of any manufacturing or assembly process by the Customer or any third party, title in the Goods and Services shall remain with SDL until the Customer has made payment for all Goods and Services, and where those Goods and Services are mixed with other property so as to be part of or a constituent of any new Goods and Services, title to these new Goods and Services shall deemed to be assigned to SDL as security for the full satisfaction by the Customer of the full amount owing between SDL and Customer.
9.3 The Customer gives irrevocable authority to SDL to enter any premises occupied by the Customer or on which Goods and Services are situated at any reasonable time after default by the Customer or before default if SDL believes a default is likely and to remove and repossess any Goods and Services and any other property to which Goods and Services are attached or in which Goods and Services are incorporated. SDL shall not be liable for any costs, damages, expenses or losses incurred by the Customer or any third party as a result of this action, nor liable in contract or in tort or otherwise in any way whatsoever unless by statute such liability cannot be excluded. SDL may either resell any repossessed Goods and Services and credit the Customer’s account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs) or may retain any repossessed Goods and Services and credit the Customer’s account with the invoice value thereof less such sum as SDL reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.
9.4 Where Goods and Services are retained by SDL pursuant to clause 9.3 the Customer waives the right to receive notice under s.120 of the Personal Property Securities Act 1999 (“PPSA”) and to object under s.121 of the PPSA.
9.5 The following shall constitute defaults by the Customer:
9.5.1 Non-payment of any sum by the due date.
9.5.2 The Customer intimates that it will not pay any sum by the due date.
9.5.3 Any Goods and Services are seized by any other creditor of the Customer or any other creditor intimates that it intends to seize Goods and Services.
9.5.4 Any Goods and Services in the possession of the Customer are materially damaged while any sum due from the Customer to SDL remains unpaid.
9.5.5 The Customer is bankrupted or put into liquidation or a receiver is appointed to any of the Customer’s assets or a landlord disdains against any of the Customer’s assets.
9.5.6 A Court judgement is entered against the Customer and remains unsatisfied for seven (7) days.
9.5.7 Any material adverse change in the financial position of the Customer.
9.6 If the Credit Repossession Act applies to any transaction between the Customer and SDL, the Customer has the rights provided in that Act despite anything contained in these terms and conditions of trade.
10. PAYMENT ALLOCATION
10.1 SDL may in its discretion allocate any payment received from the Customer towards any invoice that SDL determines and may do so at the time of receipt or at any time afterwards and on default by the Customer may reallocate any payments previously received and allocated. In the absence of any payment allocation by SDL, payment shall be deemed to be allocated in such manner as preserves the maximum value of SDL purchase money security interest in the Goods and Services.
11.1 No claim relating to Goods and Services will be considered.
12.1 The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon SDL 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 SDL, SDL’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.
12.2 Except as otherwise provided by clause 13.1 SDL shall not be liable for:
12.2.1 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 (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Goods and Services provided by SDL to the Customer; and
12.2.2 The Customer shall indemnify SDL against all claims and loss of any kind whatsoever however 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 SDL or otherwise, brought by any person in connection with any matter, act, omission, or error by SDL its agents or employees in connection with the Goods and Services.
13. CONSUMER GUARANTEES ACT
13.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Goods and Services from SDL for the purposes of a business in terms of section 2 and 43 of that Act.
14. COPYRIGHT AND INTELLECTUAL PROPERTY
14.1 SDL, owns and has copyright in or is licensed to utilise the intellectual property in all designs, data, products, specifications and software produced by SDL in connection with the goods and services provided pursuant to this contract and the Customer may use the goods and services only if authorised by SDL and, or paid for in full and for the purpose for which they were intended and supplied by SDL
15.1 Failure by SDL to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations SDL has under this contract
15.2 If any provision of this contract shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
15.3 Where these terms and conditions of trade are at variance with the order or instructions from the Customer these terms and conditions of trade shall prevail.
15.4 SDL shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
15.5 The Law of New Zealand applies to this contract.
16.1 The terms and conditions of any contract evidenced by this document shall not be modified or varied except in writing signed by the seller. Unless so modified or varied, these terms and conditions override or negate any contrary term condition or intention contained in any of the Buyer’s conditions of purchase, conditions of contract, or other forms.