Blue Cat Graphics - Terms of Trade
Thank you for doing business with us. The above Agreement is made subject to the following terms. The clauses of this Agreement apply when we do anything for you, now or in the future. If you have any questions about them, call us on (04) 499 7553. We are always happy to help you.
1. DEFINITIONS
In this Agreement:
(a) ‘You’ means you, our client;
(b) ‘Blue Cat Graphics Limited’ or ‘Bluecat’ means us, our staff, representatives or agents together with any business we own or control in any way;
(c) ‘We’ or ‘Us’ means Blue Cat Graphics Limited;
(d) ‘Product’ covers all goods and services of any kind We agree to provide to You and anything else We do in the course of our relationship with You;
(e) ‘Interest’ means the base rate charged to Us by our bank on the date the payment is due or incurred plus a margin of 10%.
2. IMPORTANT: GENERAL CLAUSE
This clause 2 takes priority over all other clauses of this Agreement:
(a) Acquiring Products For Purposes Other Than The Purposes Of A Business
The Consumer Guarantees Act 1993 (“CGA”) may apply to Products We provide to You if You are acquiring our Products for other than Business purposes. If the CGA applies, all rights You have under it apply in addition to the rights set out in this Agreement and will not be reduced by it.
(b) Acquiring Products For The Purposes Of A Business
If You are acquiring our Products for the purposes of a Business as defined above You agree that Your general rights at law in connection with the Products will to the extent permitted by law be determined by the terms of this Agreement only. In particular, You agree that the provisions of the CGA will not apply to the Products We provide under this Agreement.
(c) If You purchase any Products from Us for re-supply, or incorporate any of Our Products into goods ordinarily acquired for personal household or domestic use or consumption ("Consumer Products") You warrant that:
(i) If You supply the Consumer Products directly to an end user/consumer You will do so using terms and conditions of supply which exclude liability for any claims under the CGA; and
(ii) If Your customer acquires the goods for re-supply, Your customer and each person in the distribution chain will exclude liability in its contract for supply for any claims under the CGA.
But in each case only, where the end user/consumer acquires the Consumer Products for business purposes.
You agree to indemnify Us against any costs or loss or damage caused by failure by You, Your customers or any person in Your distribution chain to properly contract out of liability to business and end users/consumers under the CGA.
3. LIABILITY
(a) We are not liable for any damage, harm or loss suffered by You arising from the Products or our provision of the Products. This includes without limitation liability for misrepresentation, consequential loss, loss of profits, reparations, costs or loss of business, harm to third parties, Your vehicles, property or equipment.
(b) We shall not be liable for failure to perform obligations if the failure results from force majeure, third party failure to perform, natural disaster, act of God, fire, explosion, industrial dispute, illness, act of government such as a change in legislation, regulation, or order made under legislative authority, or anything beyond our control.
(c) In the event that We are found liable for any damage or loss such liability is limited to the monies actually paid to us.
(d) Our agreements with you are not enforceable by or intended to confer a benefit upon any third party.
4. YOUR DUTIES TO US
(a) You and everyone You are responsible for agree to:
(i) Make sure that all information You give Us is accurate and complete;
(ii) If You are purchasing our Products for a business that You have the authority of the business to purchase the Products;
(iii) Follow the instructions We provide about using our Products and only use them for lawful functions;
(iv) Let Us enter the Your premises to provide our Products or anything connected with them.
(v) Pay Us our fees including any sums We have to pay to third parties to provide the Products;
(vi) Pay for repairing or replacing any of our Products which are lost or damaged by anyone except Us; and
(vii) Keep Us protected against any action taken against Us because of Your use of our Products. This includes payment of any costs, reparations, damages or cost of other award against Us.
5. ORDERING & INSTALLING THE PRODUCTS
(a) We will install the Products for You. Before our Products will be installed, You must:
(i) Provide access and suitable places for it to be installed;
(ii) Meet any requirements We tell You about;
(iii) Get any consents We need to install the Products;
(iv) Provide safe conditions for Us to install the Products;
(v) Pay Us any third party costs We will incur to install the Products and such other fees as We have agreed with You as a deposit.
(b) We can refuse to accept any order or any part order for any reason whatsoever, and to deliver Products by instalments, in which case each instalment will comprise a separate contract and shall be paid for as if it were a separate order.
(c) We will work with You to ensure the appropriate requirements are met.
6. FEES, INVOICES, AND PAYMENT
(a) All prices quoted in writing are valid for the period specified on the quotation or until earlier acceptance by You. Oral quotations given by Us or on Our behalf and where no period is specified are only valid to the end of the business day upon which they are given.
(b) You must pay the purchase price of the Products as described in this Agreement.
(c) You agree to pay not only Our fees but also:
(i) Any taxes or duties which We must collect or pay for the Products (such as GST);
(ii). Storage and insurance costs, if we hold the Products before they are delivered to you;
(iii) Any increase in the price of the Products caused by a fluctuation in the exchange rate of the New Zealand dollar; and
(iv) The actual cost of any and all expenses reasonably incurred in the delivery of the Products to You.
(d) We will send You invoices for our fees unless Your Agreement with Us specifies details of the payment required:
(i) You must pay each invoice by the due date for payment set out on it;
(ii) Please let Us know before the due date for payment if You think there is an invoicing error. If We agree, We will adjust the invoice. If We find there is no error, and the due date for payment has already passed, You must pay the unsettled amount immediately plus Interest.
(e) If You do not pay an invoice by the due date for payment, We may:
(i) Send You notice asking You to pay it. If no payment is made within 10 days of the notice, We may end the Agreement;
(ii) Stop supplying any Product We provide to You;
(iii) Require You to pay any charges we incur to recommence the provision of Products to You; and
(iv) Charge You Interest on the unpaid amount from the due date until You pay it irrespective of whether demand for payment or Interest has been made;
(v) Charge You for any costs We have to pay in collecting any money You owe Us. This includes the full cost to Us of exercising our legal rights and which includes costs as between solicitor and client plus Interest on these costs.
(f) We may alter our charges from time to time. We will give You reasonable notice of any alterations;
(g) You agree that in the event the agreement for the provision of Our Products constitutes a construction contract then pursuant to S14 of the of the Construction Contracts Act 2002:
(i) Payment of Our invoice for third party costs and such other fees as We have agreed with You before we provide our Products constitutes a deposit and not a progress payment; and
That in the absence of Our written agreement to the contrary, a progress payment of 100% of the unpaid balance of the work will be invoiced to you and
(ii) payable according to its terms before the Products are provided to you.
(h) All Product described in this Agreement or subsequently purchased from us capable of forming collateral under the Personal Property Securities Act 1999 is Collateral for the purposes of the Personal Property Securities Act 1999:
(i) You agree that until We have received payment in full for any Collateral provided by Us to You, You give to Us a Purchase Money Security Interest in the Collateral;
(ii) You shall cooperate to the extent required by Us to enable the registration of a Financing Statement on the Personal Property Security Register;
(iii) You agree that We are entitled to take possession of any of the Collateral for which payment has not been made as in clause 9(i) below and You grant Us a right of entry for the purpose of removing such Collateral;
(iv) The provisions of s114, 116, and 120 of the Personal Property Securities Act shall not apply to this Agreement.
(i) Although ownership of the Collateral remains with Us until the purchase price and installation fees are paid, You acknowledge that risk in the Collateral passes to You as soon as it is delivered to You;
(j) You must obtain any consents We need and allow Us to enter the premises where the Products are situated, so that We can remove such Products if in Our sole discretion we consider it appropriate;
(k) You must pay any costs We may incur to remove any of our Products including Interest;
(l) Where We end this Agreement and You have not paid for the Products, You must pay Us:
(i) The purchase price and all other fees payable under this Agreement;
(ii) Less the payments You have already made;
(iii) Less any money We receive from selling the Products;
(iv) Plus Interest, our removal and resale expenses and all costs We incur in collecting any payment from You including all legal costs (including costs as between solicitor and client), debt collection costs and Interest on these costs.
(m) We may temporarily stop supplying any Product. In most cases, usual fees will continue to apply during the stopping of any Product.
7. TERMINATION/CANCELLATION
(a) Either You or We may cancel this Agreement by sending one month’s written notice.
(b) We may cancel this Agreement at any time if You do not pay our fees or meet Your duties to Us.
(c) A cancellation fee will apply if You:
(i) Surrender a Product; or
(ii) Cancel this Agreement
during the minimum term (if any).
(d) The cancellation fee constitutes agreed liquidated damages and is the amount of fees payable to Us to the end of any minimum term;
(e)We may decide to stop providing a particular Product. If We do this We will give You one months’ notice.
(g) Whether You or We give up Products the Agreement You have with Us will continue.
8. INFORMATION ABOUT YOU
(a) You agree that We may collect information about You. You may decide whether to provide any of the information. However, if You do not provide it, We may not be able to provide Products to You.
(b) You may ask to see information We hold about You and ask for any details that are wrong to be corrected.
(c) We may hold the information and share it with any other person whom We consider it necessary to share it with in order to provide our Products to You.
(d) Information obtained about You will be held throughout the relationship with Us and for seven years following the date of Your last transaction with Us or as may otherwise be required by law.
9. INTELLECTUAL PROPERTY
Unless otherwise agreed in writing:
(a) Notwithstanding that You may have commissioned Us to design or otherwise create Products for You, We retain the right to use, alter, sell or license any and all copyright, brand, idea, expression of an idea or other form of intellectual property that might exist in the Products for all purposes in all jurisdictions (“IP”).
(b) Upon payment of Our charges in full You are granted a non exclusive perpetual right to the use, sale and license of the IP.
(c) If you alter the Products in which We have IP You must distinguish such alterations from the Products produced by Us.
10 AGREEMENT APPLIES AT ALL TIMES
(a) This Agreement continues to apply until the Agreement is cancelled except to the extent clause 10(b) applies.
(b) The cancelling of any Agreement that You have with Us does not affect any rights and responsibilities which are intended to continue or come in to force afterwards. These include the rights and duties under clauses 2, 3, 4, 6- 9, this clause 10, 13, 15, 16 and any other clause which impliedly or expressly is to survive termination of this Agreement.
11. ALTERING THESE CLAUSES
(a) We may at our sole discretion alter or remove existing clauses of this Agreement or add new ones.
(b) We will tell You about any alterations by sending You at least one months’ notice before they come into effect. We will never alter this stipulation.
12. SERVICE OF NOTICES
(a) We will send bills and other notices to the last street address, e-mail address or fax number You have given Us. We will assume any:
(i) Invoice or notice has been delivered 5 days after We send it;
(ii) E-mail has been received when it has been sent to the e-mail address We sent it to even if it has not been downloaded from the internet service provider hosting the e-mail address;
(iii) Fax has been received when We receive confirmation of transmission.
(b) You may send any notice to Us by:
(i) Posting it in a pre-paid letter to PO Box 13 108, Johnsonville, Wellington; or
(ii) Delivering it personally to 62 Kaiwharawhara Rd, Ngaio, Wellington; or
(iii) Sending it by fax to 04 499 7199.
(c) Please tell Us if You change Your street address, e-mail address, telephone number or fax number by calling Us free on 04 499 7553.
13. MEETING OUR DUTIES THROUGH AGENTS
We may have an agent perform any of the obligations We have to You. Each of those People and their officers, employees, contractors or agents shall have the benefit of any terms that confer benefits on Us.
14. TRANSFERRING RESPONSIBILITIES
(a) We may transfer our side of this Agreement to someone else. We will tell You if We do this.
(b) You may not transfer this Agreement or any benefit or obligation of it to anybody. If You are a Business and Your management or control is altered, then this will be treated by Us as a transfer of this Agreement entitling Us to end it.
15. EACH CLAUSE SEPARATELY BINDING
Each clause of every Agreement You have with Us is separately binding. If for any reason We, You or any officer, employee, contractor, agent or other person We are responsible for cannot rely on any clause, all other clauses are binding.
16. NON-WAIVER
Any failure by Us to enforce at any time or for any period any one or more of the terms of this Agreement is not a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this Agreement.
17. DISPUTES
The parties both submit to the jurisdiction of the Courts in Wellington.
18 INDEPENDENT ADVICE
You acknowledge that prior to completing this Agreement You have had the opportunity to obtain such advice, including independent legal advice, as You require regarding this Agreement and its effects.
19. THESE TERMS ARE PARAMOUNT
The terms and conditions of this Agreement govern our relationship and supersede all prior representations or agreements whether oral or in writing. You agree that notwithstanding any other Agreements or communications between You and Us the terms of this Agreement are paramount and take precedence in the event of any conflict.
