Terms of Trade
Soar Communications Group Ltd agrees to supply Goods and Services to the Buyer upon the following Terms and Conditions:
1.1 The following words shall have the meanings specified:
Buyer – the company, person, business or entity named as the Buyer on the Order Form, or any agent or licensee of the Buyer.
Contract – the agreement between the Company and the Buyer as set out on the Order Form (including these Terms and Conditions). This Contract overrides any other agreement between the Company and the Buyer, and applies to all orders made after these Conditions have been sent,
or otherwise brought to the notice
of the Buyer.
Goods – print graphics and design in hard copy and digital form, preliminary, experimental and creative work, and all instructions, manuals, or other materials supplied to the Buyer or any third party at the request of the Buyer.
Guarantor – the company, person, business or entity, if any, that has undertaken to guarantee the performance of the Buyer of its obligations pursuant to these Terms of Trade.
The Company – the relevant member of the Soar Communications Group Ltd from whom the Buyer has placed an order for Goods or Services.
Order Form – the Company’s application or order form, or if there is no such form, the Company’s invoice.
Services – printing, web hosting, consulting and design services or other services supplied to the Buyer or any third party at the request of the Buyer.
Soar Communications Group Ltd – the group comprising Soar Communications Group Ltd and all of its subsidiaries
2.1 Every quotation or estimate by the Company:
(a) Must be checked by the Buyer to determine whether its instructions have been correctly interpreted and the Company shall not be liable for any misinterpretation of those instructions;
(b) Lapses if not accepted by the Buyer within 30 days of being given; is subject to withdrawal or amendment at any time by the Company prior to its acceptance by the Buyer;
(c) Relates to the particular specifications required by the Buyer and the Buyer will be charged for any additional work resulting from any alteration in those specifications;
(d) Is conditional on an over or undersupply margin of 10%.
2.2 Printing quotations or estimates are based on printed, typewritten, common electronic format or other good copy. The Buyer will be charged for any additional work required to produce copy in this condition.
2.3 Unless otherwise specified each quotation or estimate for single colour work is based on black ink and the Buyer will be charged for any changes to inks used. Any margin will be treated on a pro-rata basis for the purposes of additional charges or deductions.
3.1 Any experimental work ordered by the Buyer will be considered an order and charged for by the Company.
3.2 Unless otherwise specified in writing, typesetting, colour separations, artwork and other intermediary material specifically required to complete an order will constitute an additional charge.
3.3 Designs, sketches and dummies submitted by the Company to the Buyer on a speculative basis shall remain the property of the Company. Unless otherwise agreed by the Company in writing, the Buyer shall not make any use of those materials or any idea obtained from those materials.
3.4 If the Company is required to hold any presses while awaiting the Buyer’s instructions, the Buyer will be charged for such holding time.
3.5 Unless otherwise specified in this Contract or by the Company in writing, all intellectual property in the Goods or Services (other than generic reuseable components) vests in the Buyer upon full payment of the purchase price for those Goods or Services.
4.1 The Company will provide proofs of Goods and Services for the Buyer’s approval if requested. The Buyer is deemed to have accepted the final format of Goods and Services supplied by the Company once the Buyer has approved the proof (if any) provided by the Company. The Buyer will be charged for any author’s corrections after the first proof.
4.2 The Buyer agrees that a print production may not match a colour proof due to variances in substrates and proof preparation methods but the Company will use reasonable endeavours in this regard.
5.0 Supply by Buyer
5.1 The Buyer agrees that any film, plates, discs, tapes or other items supplied by it to the Company must be of a quality and quantity acceptable to the Company. the Company will not be liable for any deviation from a quotation or sub-standard work resulting from the Buyer’s provision of unacceptable items. The Buyer will be charged for any additional work required to supply commercially acceptable Goods or Services.
5.2 All paper supplied by the Buyer in relation to its work will be subject to a handling, profit and storage charge.
5.3 Unless otherwise specified in writing, where the Buyer is separately invoiced for the cost of any platemaking positive or negative film, plates, blocks, origination etc., such materials will become the property of the Buyer on payment of that invoice.
5.4 All items supplied by the Buyer to the Company shall: (a) Subject to clause 5.5, remain the property of the Buyer; be sufficient to cover any spoilage (as agreed with the Company); (b) Be held at the risk of the Buyer and the Company will not responsible for any insurance cover for such items.
5.5 The Company will be entitled to dispose of any items which are not collected by the Buyer within 12 months of delivery of the relevant Goods or the supply of the relevant Services. the Company may offset any proceeds arising from the disposal against the cost of storage and will not be liable to the Buyer for any loss relating to such disposal.
6.0 Electronic Storage
6.1 Subject to clause 3.5 or unless otherwise specified by the Company in writing, the Buyer shall have no right or title to any material stored by the Company by electronic means, including on disc or tape. the Company may agree, however, to duplicate or transfer electronic material stored by it to the Buyer at the Buyer’s cost.
6.2 Unless otherwise specified by the Buyer in writing, the Company shall be entitled to assume that all discs, tapes and other forms of electronic storage supplied to the Company by the Buyer are copies of the originals.
7.1 Subject to clause 7.2 every amount invoiced shall be paid in cleared funds to the Company, without any set-off or deduction, by the 20th of the following month. 2% Interest rate per month may be charged if not paid by the Due date. In addition to invoicing the Buyer on completion, the Company may submit invoices for progress payments for any work carried out during periods of more than one month.
7.2 Where any Goods or Services are to be supplied to a licensee of the Buyer which is resident outside New Zealand, such licensee must forward the amount invoiced by the Company to the Company by direct credit and in cleared funds to the Company’s New Zealand bank account (as notified to the licensee from time to time) before the Company will be obliged to supply the relevant Goods or Services to the licensee.
7.3 GST and any other taxes or levies are not included in the Contract price and are payable by the Buyer to the Company in addition to the Contract price.
8.0 Action on Breach
8.1 If the Buyer breaches its Contract with the Company, then the Company may, without notice and without prejudice to other rights it may have at law or under this Contract, take all or any of the following steps:
(a) Retain moneys paid and demand payment of all amounts due to the Company even if the time of payment has not fallen;
(b) Require security for such obligations before further supplies are made to the Buyer, including requiring the Buyer to procure the personal guarantees of its directors and shareholders;
(c) Withhold deliveries of Goods or supply of Services ordered by the Buyer, or sell the Goods to a third party;
(d) Complete and have registered a mortgage over any and all property owned by the either alone or in conjunction with other people, and either in his her or its capacity as trustee of a trust or otherwise to secure monies owed by the Client and the Company shall also have the right at its discretion to caveat any such property to protect its interest in such property created by this provision and the Client and/or Guarantor hereby irrevocably appoints the Company as the attorney of the Client and/or Guarantor (as the case may be) for the purpose of executing such mortgage.
(e) Charge interest for late payment on the amount invoiced at 2% per month calculated on a daily basis from the date payment is due until full payment is actually made, compounding annually;
(f) Require the Buyer to pay all expenses and legal costs incurred or suffered by the Company in the collection of the overdue account (the charging of this sum does not imply the granting of an extension of credit);
(g) Terminate this Contract.
9.1 The Buyer is liable for all freight and delivery costs, and transit insurances.
9.2 If the Buyer does not, or indicates that it will not, take delivery of the Goods or the supply of the Services, then the Goods and Services are deemed to have been delivered when the Company was willing to deliver them. All excess handling, storage, insurance and other charges directly or indirectly incurred by the Company, as a result, are payable by the Buyer in accordance with this Contract.
10.0 Risk and Insurance
10.1 Despite the granting of credit, passing of risk, giving of possession, or delivery to the Buyer, both legal and equitable title in the Goods shall be retained by the Company until the full purchase price of any Goods or Services has been paid.
10.2 Risk in the Goods passes from the Company to the Buyer when the Goods are delivered, or deemed to have been delivered, to the Buyer or its agent pursuant to this Contract. Until property in the Goods passes to the Buyer, the Buyer shall keep the Goods insured in the name of the Company and the Buyer for their respective rights and interest, and the Company shall be entitled to receive all insurance proceeds which are payable in respect of the Goods.
11.0 Right to Repossess and Enter Premises
11.1 Where the Buyer owes the Company any money, the Buyer grants to the Company’s employees or agents an irrevocable right to enter any premises controlled by the Buyer or where the Goods are located and repossess the Goods. the Company may resell any repossessed Goods and retain the proceeds of that sale. Any shortfall in the overdue amounts of money is to be a debt owed by the Buyer to the Company.
11.2 The Company shall incur no liability as a result of any loss resulting from the exercise of any power of re-entry. The Buyer shall indemnify the Company, its servants and agents, for any liability arising as a result of the repossession, and the Buyer shall pay all costs incurred by the Company.
12.0 Warranty from the Company
12.1 For a term of 30 days from the date of delivery or deemed delivery of the Goods or Services (Warranty Period), the Company warrants that it will make good any defects in the Goods if the defect is discovered and a written claim received by the Company during the Warranty Period. To the extent that the Contractual Remedies Act 1979 applies to this Contract, sections 6-10 inclusive of the Contractual Remedies Act 1979 are expressly excluded.
12.2 The warranty in clause 13.1 shall not apply in the following circumstances:
(a) While the Buyer is in breach of the Contract;
(b) Where the Company is not given reasonable opportunity and facilities to investigate the claim (the Company may, at the Buyer’s cost, require the Buyer to return the relevant Goods to it for examination or, where the Goods have been incorporated into another item, inspect the Goods on site);
(c) Where the defects result from fair wear and tear, accident, or improper use, storage, maintenance, installation or operation by the Buyer or the Buyer’s agent, of the Goods or any items in relation to which any Services have been supplied;
(d) Where the defects result from any attempt to repair any of the Goods by persons not authorised by the Company to effect those repairs.
12.3 Subject to clause 13.1, to the maximum extent permitted by law, all warranties, descriptions, representations or conditions as to fitness, suitability for a purpose, merchantability or otherwise, whether expressed or implied by law, trade custom or otherwise,
13.0 Personal Property Securities Act 1999
13.1 The Buyer grants to the Company
a security interest in:
(a) All the Goods;
(b) All the Buyer’s present and future rights in relation to any Goods; and
(c) All the Buyer’s present and after acquired personal property ((a), (b), and (c) to be collectively referred to as “the Collateral”); as continuing security for the payment of any amount invoiced and the performance of all obligations contained in this Contract.
13.2 The Buyer shall do all things and provide all information as the Company may require for the purpose of more satisfactorily securing to the Company the Collateral, the payment of any amount invoiced and all obligations contained in this Contract and ensuring that the Company has a perfected first ranking security interest in the Collateral and any proceeds.
13.3 The Buyer warrants that all information provided by or on behalf of the Buyer was true and accurate as at the date of this Contract and there are no facts or circumstances which have not been disclosed to the Company which would make that information untrue, inaccurate or misleading.
13.4 The Company shall, at all times that the Buyer has any outstanding obligations to the Company, have the right to enter the premises where the Goods or any Collateral is stored and remove them without being responsible for any damage caused, whether directly or indirectly, in doing so.
13.5 The Buyer:
(a) agrees that nothing in sections 114(1)(a), 116, 117(1) (c), 119, 120(2), 133 and 134 of the Personal Property Securities Act 1999 shall apply to this Contract or the security under this Contract;
(b) waives all its rights under sections 121, 125, 129, 121, 132 of the Personal Property Securities Act 1999; and
(c) waives its right to receive a copy of the verification statement confirming the registration of a financing statement or financing change statement relating to the security interest under this Contract.
14.0 Consumer Guarantees Act/Fair Trading Act
14.1 The Buyer confirms that it is not a consumer for the purposes of the Consumer Guarantees Act 1993 and is acquiring the Goods and Services for business purposes. The Buyer shall not do anything, or omit to do anything, the result of which may give rise to liability for the Company under the Consumer Guarantees Act 1993, the Fair Trading Act 1986 or otherwise, and shall indemnify the Company for any such liability and all costs and expenses in respect of any claim.
15.0 Privacy Act 1993
15.1 The Buyer authorises the Company to collect at any time and from any person or body personal information concerning the Buyer (Personal Information). Personal Information will be collected by the Company for processing the Buyer’s application for a credit account and operating that account, including, without limitation, determining the creditworthiness of the Buyer, conducting the Company’s business, responding to any requests the Company may receive about the Buyer’s creditworthiness, and notifying any credit agency of the Buyer’s application for a credit account or any default by the Buyer on that account, and enabling the credit agency to maintain its accounting records.
15.2 The Buyer acknowledges and agrees that Personal Information may be held or used by the Company, or disclosed by the Company to any person or body, for any of the above purposes. Under the Privacy Act 1993, the Buyer may have access to, and request the correction of, Personal Information.
16.1 Without limiting the generality of any other clause in this Contract, the Company may, without notice and without prejudice to other rights the Company may have at law or under this Contract, terminate this Contract if the Buyer:
(a) Becomes, threatens or resolves to become, or is in jeopardy of becoming, subject to any form of insolvency administration;
(b) Being a partnership, is dissolved, threatens or resolves to dissolve, or is in jeopardy of dissolving;
(c) Being a natural person, dies; ceases, or threatens to cease, to conduct its business in a normal manner.
16.2 Upon termination of this Contract, clause 8.1 applies.
17.1 The Company shall not be liable for any loss or damage, including any loss of profits or any consequential, indirect or special loss, damage or injury of any kind, suffered by the Buyer or anyone else arising directly or indirectly from any breach of any of the Company’s obligations resulting from, or in connection with, any Contract, or from any cancellation of any Contract or from any negligence on the part the Company, or the Company’s servants, agents or contractors.
17.2 If for any reason the Company does have liability to the Buyer or any third party, the maximum extent of that liability is not to exceed the amount paid by the Buyer to the Company for the Goods or Services the subject of that claim and any further liability shall be met by the Buyer.
18.0 Warranty from Buyer
18.1 The Buyer warrants that:
(a) It has not relied upon any representation made by the Company which is not expressly stated in this Contract or upon any descriptions, illustrations or specifications contained in any document, including publicity material, produced by the Company;
(b) In manufacturing or dealing with any Goods or supplying any Services according to the specifications of the Buyer the Company shall not infringe any patent, registered or unregistered trademark, design, copyright or other intellectual property rights (IP Rights) of any third party, and the Company will not be required to print any material which is defamatory or illegal in any respect.
19.1 The Buyer agrees to indemnify, and keep indemnified, the Company against any action, claim, demand, liability, damages, costs (including legal costs) or expenses arising out of or in connection with:
(a) Any alleged infringement of any IP Rights of any third party, or any alleged production of illegal or defamatory material, resulting from the Company manufacturing or dealing with any Goods, or supplying any Services, according to the specifications of the Buyer;
(b) Any claims by the Buyer’s customers, agents, servants or contractors or any other person whatsoever in respect of any damage, injury or loss;
(c) Any breach by the Buyer of its obligations under this Contract;
(d) Any wilful, unlawful or negligent act or omission by the Buyer;
(e) Loss or corruption of data or damage (whether of the Company or any third party) caused by any computer virus supplied (knowingly or unknowingly) by or on behalf of the Buyer.
20.1 In consideration of the Company agreeing to supply Goods and Services to the Buyer, the Guarantor unconditionally and irrevocably guarantees to the Buyer the due and punctual performance and observance by the Buyer of all its obligations under the Contract (including the due and punctual payment by the Buyer of all moneys from time to time payable by the Buyer under this Contract to the Company).
20.2 The liability of the Guarantor under this guarantee shall constitute a principal obligation of the Guarantor and such liability shall not be relieved or in any way affected in a manner prejudicial to the Company by any granting of time, waiver or forbearance to sue by the Company, or by any other act, omission, matter, circumstance or law whereby the Guarantor as a surety only would, but for the provisions of this clause have been released from liability hereunder. For the avoidance of doubt, this guarantee extends to the due and punctual performance of all obligations of the Buyer under an Order Form, regardless of whether the Guarantor has signed that Order Form or has agreed to the transaction evidenced by that form.
20.3 This guarantee shall be a continuing guarantee and will remain in force and effect until all the obligations now or at any time hereafter liable to be satisfied by the Buyer to the Company under the Contract have been fully satisfied, including obligations, the satisfaction of which are subsequently avoided or affected in any way, whether under any statutory provision or otherwise, so as to deprive the Company of the full benefit of such satisfaction.
21.1 The Company will not be responsible for any loss or corruption of data stored in, or used with, the Goods, damage or loss (including consequential loss) caused by any computer virus however contracted, or damage, loss of data or errors occurring when files are converted to bromide or film.
21.2 Any dispute or difference between the Company and the Buyer regarding this Contract or its termination which cannot be settled amicably and in good faith shall, at the instance of either party, be referred for mediation to an accredited mediator appointed by the Chairman for the time being of the New Zealand branch of LEADR (Lawyers Engaged in Alternative Dispute Resolution). Each party agrees to diligently and in good faith co-operate and participate in the mediation process. The costs of the mediator shall be shared equally between the Company and the Buyer or as the mediator sees fit.
21.3 Failure or delay to exercise a right under this Contract shall not operate as a waiver of that right. Waiver of any default or breach of this Contract shall not be interpreted as a waiver of any subsequent breach. No waiver by the Company is effective unless it is in writing signed by the Company.
21.4 No variation to the Contract shall be valid unless signed by an authorised officer of the Company.
21.5 The Buyer may not assign this Contract without the Company’s prior written consent.
21.6 This Contract is governed by New Zealand law. The parties submit to the exclusive jurisdiction of the Courts of New Zealand.
21.7 The Company shall not be liable for any errors or omissions resulting from a misinterpretation of any verbal instructions given by the Buyer at any time.