Terms of Trade (“terms”)
1. Application of Terms of Trade
a. These Terms shall be included in all contracts for the supply of goods and services (including advice) by Synergy Design to the Customer.
b. If there is any conflict between these Terms and any put forward by the Customer, these Terms shall prevail.
c. Reference in these Terms to goods and services includes:
i. Goods and services whether supplied separately or together; and
ii. Advice of any type whatever given by Synergy Design to the Customer, even if the customer has not paid for that advice.
2. Contract and Price
a. The price is shown on Synergy Design’s order, invoice, packing note, despatch docket or any other like document in New Zealand dollars (NZ$).
b. Unless otherwise stated, prices are expressed exclusive of GST . The Customer must pay all goods and services tax charged on the supply of goods and services to the Customer
c. Unless otherwise stated the price excludes the cost of delivery by the normal transportation used by Synergy Design.
d. Synergy Design reserves the right to increase the price to recover any increase in cost of labour, materials, taxes and charges after the date of the Seller’s order.
e. Any quoted price may be subject to change as influenced by exchange rate fluctuations.
f. An order placed by the Customer shall be deemed to constitute an offer by the Customer to enter a contract on these Terms and may be accepted by Synergy Design in writing (email, fax or letter) or verbally.
g. Synergy Design may refuse to accept or delay acceptance of any order for any reason.
h. This agreement takes effect, when accepted by Synergy Design.
i. Unless otherwise stated in writing, any quotation by Synergy Design shall be open for acceptance for 14 days and then withdrawn.
j. Payments shall be made in NZ Dollars to Synergy Design.
k. Unless agreed to otherwise (before delivery) full payment is due 7 days following date of invoice.
l. Penalty interest is payable from the due date, calculated on a daily basis at the rate of 6% per annum above the (ASB Bank) base rate from time to time. This interest will be payable both before and after judgement entered against the Customer in favour of Synergy Design.
m. In the event of the Customer failing to make payments on the due dates as set out in this agreement, Synergy Design will be entitled to suspend all services to the Customer and the Customer will still be liable for all monies due as per the terms and conditions.
n. No payment may be withheld.
o. Receipt of a cheque by Synergy Design does not constitute payment and the Customer remains liable for the full contract price until such cheque is cleared.
p. Payments received may be accepted and applied by Synergy Design in respect of any indebtedness of the Customer as Synergy Design shall think fit and Synergy Design shall not be bound by any conditions or qualifications attaching to such payments.
q. The Customer will pay all Synergy Design’s legal and other expenses incurred by it in respect of the recovery of any overdue payment or the recovery of any of the goods. These legal and other expenses will be payable on a solicitor and own client basis (that is, Synergy Design will be fully reimbursed for legal costs and expenses which it incurs).
r. In the event of the Customer or Synergy Design canceling this agreement for any reason whatsoever, Synergy Design will be entitled to, but not obliged to, full payment of the amounts due in terms of this agreement and any associated invoice or cost estimate. Synergy Design agrees to provide the Customer with reasonable notice via e-mail, fax or letter, of any such intent to discontinue or impose conditions, unless it is determined that such notice will cause harm to Synergy Design.
s. Synergy Design will be entitled to Invoice the Customer for work-to-date on all progress of work produced on a month by month basis.
3. Artwork Files and Proofs
a. All artwork files presented by the customer or by a third party on behalf of the customer are taken to be correct and Synergy Design takes no responsibility and Synergy Design makes no warranties whatsoever for the quality of these files or the resulting goods that are produced from these files.
b. The Customer herewith undertakes to signoff on all proofs printed, digital or otherwise and by doing so takes full responsibility for any errors resulting on any goods produced in the likeness of this proof. Synergy Design takes no responsibility and Synergy Design makes no warranties whatsoever for the resulting goods that are produced in the likeness of this proof.
4. Fulfilment of Orders and Delivery
a. Synergy Design will use its best endeavours to fulfil the orders specified in the Customer’s order and reserves the right to cancel any order relating to any item or items of goods or services which in the opinion of Synergy Design is impractical or uneconomic to supply.
b. Synergy Design will use its best endeavours to make delivery at the time specified in the Customer’s order ( if a time is specified ) but shall not be in default by reason of any failure to deliver or delay in delivery caused by any event beyond Synergy Design ’s control. Any delivery dates are estimated dates only and Synergy Design shall not be responsible for any loss or damage sustained by the Customer or any other person, by reason of any delay howsoever caused.
c. Delivery is deemed to be effected upon the goods arriving at the nearest N Z Post Mail Service Centre or at the location specified by the Customer, or, in the case of goods purchased directly from the premises or sales representative of Synergy Design, upon the Customer taking physical possession of such goods.
e. The customer agrees that no recourse can be taken after 7 days of delivery.
5. Representations, Warranties and Limitations of Liability
a. Synergy Design will utilize its best efforts to maintain acceptable performance of services contracted for.
a. Synergy Design acknowledges its statutory obligations under the Consumer Guarantees Act
b. Nothing in the Consumer Guarantees Act will apply where the Customer acquires, or holds himself out as acquiring, the goods or services for the purposes of a business.
c. Where the Consumer Guarantee Act does not apply:
i. Synergy Design gives no warranties in respect of any goods or components except where the manufacturer or supplier of Synergy Design provides a warranty in which case, to the extent that it is able to do so, Synergy Design will make such warranty available to the Customer; and
ii. Synergy Design gives no warranties in respect of any services supplied including advice to the Customer as to the use of any goods and services; and
iii. No order once accepted by Synergy Design may be cancelled or varied except by written agreement of Synergy Design and no returns will be accepted except pursuant to any such agreement.
d. Where the Consumer Guarantees Act does not apply and if:
i. there is defective workmanship or materials in respect of goods and services supplied pursuant to the contract; or
ii. the goods and services do not conform to the specification; or
iii. there is default by Synergy Design in any other respect Synergy Design will at its option repair or replace defective goods, or repeat the services, or pay damages not exceeding an amount equal to the purchase price for the goods and services in respect of which there has been default.
iv. in regards to i, ii and iii Synergy Design will, at it’s option repair.
e. Except where stated in this Clause 5, Synergy Design shall not be liable to the Customer (or any third party with notice of these terms ) in relation to any goods and ser vices provided to the Customer whether pursuant to contract, gratuitously or otherwise. The limitation applies to all:
i. liability whatever and howsoever a rising, whether pursuant to statute, contract, tort including negligence, or otherwise.
ii. loss and damage including consequential loss and loss of income and profit.
d. Synergy Designs liability to the Customer and/or any end-user of Synergy Design services is limited to the amount paid to and received by Synergy Design for services not accepted. In no event will Synergy Design be liable to the Customer, or any end-user or any other entity for any special, consequential or other damages, however caused, whether for breach of contract, negligence or otherwise, even if Synergy Design has been advised of the possibility of such damage.
6. Risk and Owner ship of Goods
a. Risk in the goods supplied by Synergy Design to the Customer will pass to the Customer upon delivery but the ownership of the goods will not pass to the Customer until payment in full of:
i. the purchase price of the goods; and
ii. all other amounts owing by the Customer to Synergy Design, including interest and expenses payable pursuant to Clause 2.
b. Until ownership passes to the Customer, the Customer acknowledges and agrees that:
i. the Customer shall if directed by Synergy Design store the goods separately in a way which enables them to be identified and cross-referenced to particular invoices; and
ii. following default in payment by the Customer, Synergy Design shall be entitled to enter into any premises occupied by the Customer at any time and do all things necessary to take possession of the goods without in any way being liable to the Customer or any person claiming through the Customer; and
iii. the Customer shall hold the goods as fiduciary, bailee and agent for the Seller; and
vi. This clause is intended to protect Synergy Design in the event of the insolvency of or default in payment by the Customer.
7. Privacy Act
a. The Customer authorises Synergy Design always to collect, use and retain personal information about the Customer for the purposes of credit assessment and for marketing Synergy Design’s goods and services to the Customer. Such information can be collected from parties other than the Customer.
8. Personal Property Securities Act
a. The Customer acknowledges that these conditions constitute a security agreement for the purposes of section 36 of the Personal Property Securities Act 1999 (“PPSA”) and that a security interest exists in all goods (and their proceeds) supplied by Synergy Design to the Customer (if any) and in all future goods (and their proceeds).
b. The Customer is to execute documents and do such further acts as may be required by Synergy Design to register the security interest granted to Synergy Design under these conditions under PPSA.