Whatever Marketing & Advertising Limited – Terms & Conditions of Trade
© Copyright – EC Credit Control Ltd – 2011
1.1 “Whatever” shall mean Whatever Marketing & Advertising Limited its successors and assigns or any person acting on behalf of and with the authority of Whatever Marketing & Advertising Limited. 1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by Whatever to the Client. 1.3 “Guarantor” shall mean that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor basis. 1.4 “Goods” means all Goods or Services supplied by Whatever to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other) and includes any advice or recommendations given by Whatever. 1.5 “Web Site” means a location which is accessible on the Internet through the World Wide Web and which provides multimedia content via a graphical User Interface. 1.6 “Price” shall mean the price payable for the Goods as agreed between Whatever and the Client in accordance with clause 4 of this contract.
2.1 Any instructions received by Whatever from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by Whatever shall constitute acceptance of the terms and conditions contained herein. 2.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price. 2.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of Whatever. 2.4 The Client shall give Whatever not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by Whatever as a result of the Client’s failure to comply with this clause. 2.5 Goods are supplied by Whatever only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade. 2.6 The Client acknowledges and agrees that any expected or estimated outcomes concerning increased sales or market share or penetration achieved by the Client derived from marketing activities undertaking by Whatever, expressed in consultation or quotations, are speculative and in no way constitute a guarantee.
3. Cooling off Period
3.1 The Client shall be able to terminate this contract (subject to clause 17.2) within seven (7) clear business days following receipt from Whatever of a signed copy of this agreement. 3.2 To terminate this contract the Client must notify Whatever in writing, which clearly states that the Client rescinds the contact, within the timeframe specified in clause 3.1 above, and:(a) gives it to Whatever personally; or (b) leaves it at Whatever’s address in this contract; or (c) sends it by registered post to Whatever’s address in the contract. 3.3 Once the withdrawal notice is given to Whatever then:(a) the contract is taken to be rescinded from the time it was signed; and(b) Whatever may retain out of any money already paid to Whatever the amount of any reasonable out of pocket expenses that Whatever incurred before the contract was rescinded; and(c) Whatever shall be entitled to be paid a reasonable price for any Works undertaken prior to the date the contract was rescinded.
4. Price And Payment
4.1 At Whatever’s sole discretion the Price shall be either:(a) as indicated on invoices provided by Whatever to the Client in respect of Goods supplied; or (b) Whatever’s quoted Price (subject to clause 4.2) which shall be binding upon Whatever provided that the Client shall accept Whatever’s quotation in writing within thirty (30) days. 4.2 Whatever reserves the right to change the Price in the event of a variation to Whatever’s quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation due to unforeseen circumstances, or as a result of increases to Whatever in the cost of materials and labour, or due to changes in the advertising rates charged by the advertising medium provider for print, television, website and radio) will be charged for on the basis of Whatever’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion. 4.3 A non-refundable deposit will be required upon agreement of the proposed marketing programme. .4 Payment for the Goods/Services shall be due as per the payment schedule agreed to in the proposal of the marketing programme. If no payment schedule has been stated in the proposal, then equal monthly installments shall be due twentieth (20th) of each month for a twelve (12) month period. 4.5 In the event any additional Goods/Services are requested once the marketing programme has been agreed to, then these additional Goods/Services shall be charged at Whatever’s current hourly rate, or current Goods Price. 4.6 At Whatever’s sole discretion a discount may be offered on accounts settled within the above payment terms. 4.7 Payment will be made by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Client and Whatever. 4.8 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5. Delivery Of Goods
5.1 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement. 5.2 Whatever may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions. 5.3 The failure of Whatever to deliver shall not entitle either party to treat this contract as repudiated. 5.4 Whatever shall not be liable for any loss or damage whatsoever due to failure by Whatever to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Whatever.
6.1 If Whatever retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery. 6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Whatever is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Whatever is sufficient evidence of Whatever’s rights to receive the insurance proceeds without the need for any person dealing with Whatever to make further enquiries. 6.3 The Client acknowledges that Goods supplied may exhibit variations in shade, colour, texture, surface and finish, and may vary to colour specifications supplied by the Client. Whatever will make every effort to match colour specifications, and to match batches of product supplied, in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur.
7. Proof Reading
7.1 Where Whatever is requested to design or commission sign writing or printing services using measurements or dimensions supplied by the Client or their representatives, and these measurements are found to be incorrect the Client is liable for the costs of the re-creation of the sign writing or printing as well as the original production costs. 7.2 Whilst every care is taken by Whatever to carry out the instructions of the Client, it is the Clients responsibility to undertake a final proof reading of the Goods. Whatever shall be under no liability whatever for any errors not corrected by the Client in the final proof reading. Should the Clients alterations require additional proofs this shall be invoiced as an extra. 7.3 When style, type or layout is left to Whatever’s judgement, then the Client makes further alterations to the copy this will be invoiced as an extra. 7.4 While every effort will be taken by Whatever to match colours, Whatever will take no responsibility for any variation due to substrates, half tones and/or detailed graphics between sale samples (including but not limited to virtual or physical samples) and the final product.
8.1 Whatever and Client agree that ownership of the Goods shall not pass until:(a) the Client has paid Whatever all amounts owing for the particular Goods; and(b) the Client has met all other obligations due by the Client to Whatever in respect of all contracts between Whatever and the Client. 8.2 Receipt by Whatever 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 then Whatever’s ownership or rights in respect of the Goods shall continue. 8.3 It is further agreed that: (a) where practicable the Goods shall be kept separate and identifiable until Whatever shall have received payment and all other obligations of the Client are met; and (b) until such time as ownership of the Goods shall pass from Whatever to the Client Whatever may give notice in writing to the Client to return the Goods or any of them to Whatever. Upon such notice being given the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and (c) the Client is only a bailee of the Goods and until such time as Whatever has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to Whatever for the Goods, on trust for Whatever; and (d) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that Whatever will be the owner of the end products; and(e) if the Client fails to return the Goods to Whatever then Whatever or Whatever’s agent may (as the invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Goods are situated and take possession of the Goods, and Whatever will not be liable for any reasonable loss or damage suffered as a result of any action by Whatever under this clause.
9. Personal Property Securities Act 1999 (“PPSA”)
9.1 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and(b) a security interest is taken in all Goods previously supplied by Whatever to the Client (if any) and all Goods that will be supplied in the future by Whatever to the Client. 9.2 The Client undertakes to:(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Whatever may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;(b) indemnify, and upon demand reimburse, Whatever for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;(c) not register a financing change statement or a change demand without the prior written consent of Whatever; and(d) immediately advise Whatever of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales. 9.3 Whatever and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions. 9.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA. 9.5 Unless otherwise agreed to in writing by Whatever, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.9.6 The Client shall unconditionally ratify any actions taken by Whatever under clauses 9.1 to 9.5.
10. Security And Charge
10.1 Despite anything to the contrary contained herein or any other rights which Whatever may have howsoever: (a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client 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 Whatever or Whatever’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that Whatever (or Whatever’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. (b) should Whatever elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify Whatever from and against all Whatever’s costs and disbursements including legal costs on a solicitor and own client basis. (c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Whatever or Whatever’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 10.1.
11. Client’s Disclaimer
11.1 The Client hereby disclaims any right to rescind, or cancel any contract with Whatever or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by Whatever and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgment.
12. Error and Omissions
12.1 The Client shall inspect the Services on delivery and shall within forty-eight (48) hours of delivery notify Whatever of any alleged defect, shortage in quantity, errors, omissions or failure to comply with the description or quote. The Client shall afford Whatever an opportunity to inspect the Services within a reasonable time following delivery if the Client believes the Services are defective in any way. If the Client shall fail to comply with these provisions, the Services shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage. 12.2 For defective Services, which Whatever has agreed in writing that the Client is entitled to reject, Whatever’s liability is limited to either (at Whatever’s discretion) replacing the Services or rectifying the Services provided that the Client has complied with the provisions of clause 12.1.
13. Consumer Guarantees Act 1993
13.1 If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by Whatever to the Client.
14. Intellectual Property
14.1 Where Whatever has designed, drawn or written Goods for the Client, then the copyright in those designs and drawings and documents shall remain vested in Whatever, and shall only be used by the Client at Whatever’s discretion. 14.2 The Client agrees that Whatever may use any documents, designs, drawings or Goods created by Whatever for the purposes of advertising, marketing, or entry into any competition. 14.3 Sketches and dummies submitted by Whatever on a speculative basis shall remain the property of Whatever. They shall not be used for any purpose other than that nominated by Whatever and no ideas obtained there from may be used without the consent of Whatever. Whatever shall be entitled to compensation from the Client for any unauthorised use of such sketches and dummies. 14.4 Disks, artwork and film supplied by the Client and/or other authorised persons remain the property of the Client. Unless otherwise indicated in writing Whatever shall assume these disks, artwork and film to be duplicate copies of the original. 14.5 Where Whatever has provided photographic (digital or otherwise) images for the Client, at Whatever’s sole discretion any such images may be subject to ongoing licence payments for use of such images. The period of any such licence is determined by Whatever from time to time. 14.6 The Client shall indemnify Whatever against any claims by third parties for patent, trademark, design or copyright infringement, directly or indirectly arising out of the design, workmanship, material, construction, or use of the Goods or any other deficiency therein. Where the Client has supplied drawings, sketches, files or logo’s to Whatever, the Client warrants that the drawings, sketches, files or logo’s do not breach any patent, trademark, design or copyright, and the Client agrees to indemnify Whatever against any action taken by a third party against Whatever.
15.1 Each party agrees to treat all information and ideas communicated to it by the other confidentially and agree not to divulge it to any third party, without the other party’s written consent. The parties will not copy any such information supplied, and will either return it or destroy it (together with any copies thereof) on request of the other party.
16. Default & Consequences Of Default
16.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Whatever’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment. 16.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by Whatever. 16.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Whatever from and against all costs and disbursements incurred by Whatever in pursuing the debt including legal costs on a solicitor and own client basis and Whatever’s collection agency costs. 16.4 Without prejudice to any other remedies Whatever may have, if at any time the Client is in breach of any obligation (including those relating to payment) Whatever may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. Whatever also reserves the right to remove anyWeb Site from online access that was provided to the Client. Whatever will not be liable to the Client for any loss or damage the Client suffers because Whatever has exercised its rights under this clause. 16.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable. 16.6 Without prejudice to any other remedies Whatever may have, if at any time the Client is in breach of any obligation (including those relating to payment), then any concessions outlined in any quotation, or documentation between Whatever and the Client, and/or any discount, markdown, reduction or special price which has been offered by Whatever to the Client may be withdrawn, or cancelled, and Whatever’s standard Terms and Conditions herein shall then apply. 16.7 Without prejudice to Whatever’s other remedies at law Whatever shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Whatever shall, whether or not due for payment, become immediately payable in the event that:(a) any money payable to Whatever becomes overdue, or in Whatever’s opinion the Client will be unable to meet its payments as they fall due; or(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
17.1 Whatever may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Whatever shall repay to the Client any sums paid in respect of the Price. Whatever shall not be liable for any loss or damage whatsoever arising from such cancellation. 17.2 In the event that the Client cancels delivery of the Goods/Services (and are still due to make payments as per the agreed payment schedule as per clause 4.4) and Goods/Services have been provided or performed, that are not covered by the payments made to that date, then the Client shall be responsible to make payments to satisfy the Price of the Goods/Services provided, and shall be liable for any loss incurred by Whatever (including, but not limited to, any loss of profits) up to the time of cancellation.
18. Privacy Act 1993
18.1 The Client and the Guarantor/s (if separate to the Client) authorises Whatever to:(a) collect, retain and use any information about the Client and/or Guarantors, for the purpose of assessing the Client’s and/or Guarantors creditworthiness or marketing products and services to the Client and/or Guarantors; and(b) disclose information about the Client and/or Guarantors, whether collected by Whatever from the Client and/or Guarantors directly or obtained by Whatever 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 Client and/or Guarantors. 18.2 Where the Client and/or Guarantors are an individual the authorities under clause 18.1 are authorities or consents for the purposes of the Privacy Act 1993.18.3 The Client and/or Guarantors shall have the right to request Whatever for a copy of the information about the Client and/or Guarantors retained by Whatever and the right to request Whatever to correct any incorrect information about the Client and/or Guarantors held by Whatever.
19.1 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. 19.2 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. 19.3 Whatever shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Whatever of these terms and conditions. 19.4 In the event of any breach of this contract by Whatever the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods. 19.5 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Whatever nor to withhold payment of any invoice because part of that invoice is in dispute. 19.6 Whatever may license or sub-contract all or any part of its rights and obligations without the Client’s consent. 19.7 Whatever 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 Whatever notifies the Client of such change. 19.8 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. 19.9 The failure by Whatever to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Whatever’s right to subsequently enforce that provision.