Z3D LIMITED Terms of Trade
In these Terms of Trade we have used “we”, “us”, and “our” to refer to Z3D Limited and “you” to refer to our Customer. By ordering Work from us, you agree to these Terms of Trade to the exclusion of your terms (if any).
1. DEFINITIONS
1.1 In these Terms of Trade: “Customer” means the person or company who purchases the Goods and/or Services from us. “Goods” shall have the meaning given to it in the Personal Property Securities Act 1999. “Intellectual Property” includes all intellectual property rights (including without limitation copyright, patent and design rights, drawings, documents, data, ideas, procedures and calculations). “Services” means the services, supplied by us to the you as set out in the Service Specifications. “Service Specifications” the description or specification of the services provided in writing by us to you. “Work” means our performance of Services for you, and the production or supply of any Goods by us as part of or related to such Services.
1.2 The rule of construction known as the contra proferentem rule does not apply to these Terms of Trade.
1.3 Words importing the singular include the plural and vice versa.
1.4 Headings are for convenience only and do not form part of, or affect the interpretation of, these Terms of Trade.
1.5 References to a party include that party's successors, personal representatives, executors, administrators and permitted assigns.
1.6 References to a statute include references to: (a) regulations, orders, rules or notices made pursuant to that statute; (b) all amendments to that statute and those regulations, orders, rules or notices, whether by subsequent statute or otherwise; and (c) any statue passed in substitution of that statue.
1.7 Reference to “us” include our employees, contractors and agents.
2. OWNERSHIP
2.1 Ownership of Goods supplied under these Terms of Trade remains with us until payment for the Goods is made in full.
3. RISK AND DELIVERY OF GOODS
3.1 Delivery occurs at the time possession of the Goods passes to you (or a person nominated by you) from us. The risk in Goods supplied passes to you on delivery.
4. ESTIMATES
4.1 Unless stated otherwise, any price we give you for Work is an estimate (“the Estimate”) on a plus GST basis of the anticipated cost for us to complete that Work. The Estimate is subject to clause 5 below.
4.2 The Estimate is open for acceptance for 30 days after it is dated unless withdrawn by us prior to acceptance.
4.3 We will not commence the Work until you have accepted the Estimate in writing.
4.4 We will advise you when 75% of the Estimate has been exceeded and when the Estimate has been reached.
5. PRICE
5.1 Notwithstanding any Estimate given, unless we have agreed in writing to be bound by a set price for the Work, you shall pay to us our actual cost of completing the Work (“the Actual Cost”) which will be calculated by totaling the following: (a) the number of hours of service multiplied by the hourly rates for the workers involved on the date which the Work is undertaken or if the supply occurs over more than one day, the relevant hourly rates on the last day on which services are rendered; (b) any disbursements (including without limitation delivery costs) incurred by us on your behalf; (c) the cost of any Goods supplied by us as part of the Work.
5.2 The Actual Cost and all prices are plus GST and other taxes which are payable by you in New Zealand dollars. 5.3 In the event these Terms of Trade are terminated in accordance with clause 11.2(c) or by you under clause 20 prior to completion of the Work, you must immediately pay us the Actual Cost at the termination date .
6. TERMS OF PAYMENT
6.1 We may require you to pay a deposit, being an advanced payment for the Work, before we commence the Work.
6.2 Payment for the Work (and any associated expenses and disbursements) is due 14 days following the date of our invoice except where we have agreed in writing that other terms shall apply (“the Due Date”).
6.3 If you do not make payment on the Due Date, you are in default and must pay default interest at the rate of 15% per annum, which shall accrue on a daily basis on the total amount outstanding from the Due Date to the date of payment in full.
6.4 Notwithstanding clause 6.3, if payment is outstanding for 7 days from the Due Date, we may suspend performing the Work on credit until the date of payment in full (subject always to clause 6.5). You must pay in cash for any Work done by us until payment is made in full (together with any accrued interest).
6.5 We may notify you at any time that we have ceased to carry out the Work on credit. This cessation does not relieve you for amounts owing up to the date on which the contract is terminated.
6.6 Payment of all money shall be without set-off or deduction of any kind.
6.7 We will apportion payments to outstanding accounts as we think fit.
7. PERFORMANCE OF WORK
7.1 We will: (a) perform the Work with reasonable skill, care and diligence in a professional manner; (b) endeavour to ensure that the Work is performed in accordance with any time frames agreed in writing with you; (c) liaise with you during the course of performing the Work in accordance with your reasonable requirements.
7.2 You will give reasonable assistance to enable us to perform the Work by: (a) giving clear instructions; (b) promptly providing any information or content required from you for us to complete the Work; (c) provide us, our consultants, agents and subcontractors with access to your premises if necessary; (d) ensuring that the Work and products derived from the Work are fit for the purpose you intend to use them for and meet any appropriate statutory, regulatory, governmental and industry and environmental controls, standards or practices.
7.3 You acknowledge that any scan provided to you as a result of the Work is a representation of the design, specification, product or good you have provided to us and may differ in form and colour.
7.4 If we have given you a time frame for completion of the Work, unless agreed in writing to the contrary such time frame is approximate only and is not deemed to be of the essence of the contract.
8. PERSONAL PROPERTY SECURITIES ACT 1999 (“PPSA”)
8.1 All terms in this clause 8 have the meaning given in the PPSA and section references shall be to sections of the PPSA.
8.2 Clause 2.1 creates a security interest in Goods we supply to you as part of the Work.
8.3 You shall not grant any other security interest or any lien over Goods that we have a security interest in.
8.4 At our request you shall promptly sign any documents and do anything else required by us to ensure that our security interest constitutes a first ranking perfected security interest in the Goods.
8.5 If Goods that we have a security interest in are processed, included or dealt with in any way causing them to become accessions, processed or commingled goods, our security interest will continue in the whole in which they are included. You shall not grant any other security interest or any lien in either the Goods or in the whole.
8.6 You waive any rights you may have under sections 114(1)(a), 116, 120(2), 121, 125, 129, 131, and 133 of the PPSA.
8.7 You waive your right to receive a copy of any verification statement (as that term is defined in the PPSA).
8.8 You will give us prior written notice of a proposed change of your name or address.
9. WARRANTIES
9.1 The Consumer Guarantees Act 1993, the Fair Trading Act 1986, and other statutes may impose warranties, conditions or obligations upon us which cannot by law (or which can only to a limited extent by law) be excluded. We exclude all such imposed warranties, conditions or obligations to the extent permitted by law and exclude any warranty, condition or obligation imposed or implied under common law, equity or otherwise.
9.2 Where you acquire Goods and/or Services from us for the purposes of a business: (a) the parties acknowledge and agree that: (i) you are acquiring the Goods and/or Services covered by these Terms for the purposes of a business in terms of sections 2 and 43(2) of the Consumer Guarantees Act 1993; (ii) the Goods and/or Services are both supplied and acquired in trade from the purposes of the Fair Trading Act 1986 and the parties agree to contract out of sections 9 (Misleading and deceptive conduct generally), 12A (Unsubstantiated representations), and 13 (False or misleading representations); and (b) you agree that all warranties, conditions, and other terms implied by the Consumer Guarantees Act 1993 or sections 9, 12A, and 13 of the Fair Trading Act 1986 are excluded from these Terms to the fullest extent permitted by law and the parties further acknowledge and agree that it is fair and reasonable that the parties are bound by this clause.
10. LIMITATION OF LIABILITY
10.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where you acquire Work and/or Goods from us for the purposes of a business in terms of sections 2 and 43 of that Act.
10.2 We have obtained insurance cover in respect to our own statutory liability for individual claims not exceeding $500,000 and our own technology liability for claims not exceeding $1,000,000.
10.3 Except to the extent that the law prevents us from excluding liability and as expressly provided for in clause 10.4, we shall not be liable for any loss or damage or liability of any kind whatsoever (including consequential loss or lost profit or business) whether suffered or incurred by you or another person and whether in contract, or tort (including in negligence), or otherwise and whether such loss or damage arises directly or indirectly from Work or Goods provided by us to you.
10.4 To the extent that we are liable for any reason for any loss suffered or liability incurred by you arising from any breach of these Terms of Trade or for any other reason, such liability is limited to the amount of the Actual Cost. If Goods are returned by you, or if you make a claim in writing to us in relation to the Goods or Services provided under the Work, we may, in our discretion, amend or replace the Goods or re-perform the Services, or refund the amount of those Goods or Services to you, provided that: (a) the Goods must be returned or the claim must be made in writing to us within fourteen (14) days of the Goods or Services being provided; and (b) you must supply the date and number of any invoice relating to the Work; and (c) we must have a reasonable opportunity to inspect the Work.
11. DEFAULT
11.1 The security interests created by these Terms of Trade become enforceable if any of the following events occur: (a) you fail to pay any money owing on the Due Date; (b) you sell, part with possession or dispose of any Goods or do anything inconsistent with our ownership of the Goods prior to making payment in full to us; (c) we believe you have committed or will commit an act of bankruptcy, have had or are about to have a receiver or liquidator appointed, or are declared insolvent; (d) the Goods are at risk, as that term is defined in the PPSA; (e) you neglect or fail to carry on your business to our reasonable satisfaction, or if there is a significant deterioration in your trading or asset position; (f) you are otherwise in breach of your obligations under these Terms of Trade.
11.2 If any of the events described in clause 11.1 occur, in addition to any remedies we may have at law, we may do one or more of the following: (a) suspend the Work in accordance with clause 6.4; (b) charge default interest in accordance with clause 6.3; (c) immediately terminate these Terms of Trade by notice in writing to you.
12. INTELLECTUAL PROPERTY
12.1 In respect of Intellectual Property used in or arising from the production of the Goods or the performance of the Work: (a) all pre-existing Intellectual Property the subject of an Intellectual Property right resides with you as at the date of these Terms of Trade ; (b) any new Intellectual Property will be dealt with in accordance with clause 13.
12.2 You grant us a fully paid-up, non-exclusive, royalty-free nontransferable licence to copy and modify any materials provided by you to us for the purposes of performing the Work.
12.3 If any Work is to be undertaken based on designs, specifications, products or the use of any goods you have provided to us, you warrant that the undertaking of the Work by us will not infringe any third party's Intellectual Property rights and you indemnify us against any loss, liability, costs and expenses arising out of or in connection with any claim being made that the Work infringes any patent, copyright or other rights of any other person.
13. INTELLECTUAL PROPERTY OWNERSHIP
13.1 Subject to clauses 12.1(a), 12.2 and 13.4 we are and will remain the exclusive owner everywhere in the world of all Intellectual Property rights and interests (including copyright and all other statutory and common law rights and interests) in the Work, and any other work performed by us for you, as first owner of those Intellectual Property rights and interests.
13.2 We shall retain exclusive worldwide ownership at all times of our artistic styles, methods of working, techniques, ideas, skills and know-how.
13.3 You must not attribute the Work to anyone other than us or remove any of our trade marks, signatures, logos or similar from our Work.
13.4 Upon payment of all amounts owing to us in accordance with these Terms of Trade, we assign to you the copyright in the final form of any Work which we have specifically created for you for the countries and for the purposes as specified in the description of the Work, or if not specified, for the countries and for the purposes which would be reasonably expected in light of the nature of your request for the Work.
14. PRIVACY OF INFORMATION
14.1 You authorise us: (a) to collect, retain and use information about you from any person for the purpose of assessing your creditworthiness; (b) to disclose information about you: (i) to any person who guarantees, or who provides insurance, or who provides any other credit support, in relation to your obligations to us; (ii) to such persons as may be necessary or desirable to enable us to exercise any power or enforce or attempt to enforce any of our rights, remedies and powers under these Terms of Trade.
15. NOTICES
15.1 Any notice may be given by phone, in person, posted, or sent by fax or email to you (or where you are a company, to any of your directors).
16. VARIATION
16.1 We shall be entitled at any time by notice in writing to you to vary any provision of these Terms of Trade and you shall be bound by such variation.
17. CONFIDENTIALITY
17.1 You shall at all times treat as confidential all non-public information and material received from us and shall not publish, release, or disclose the same without our prior written consent. For clarity, confidential information includes any new Intellectual Property and prices.
18. COSTS
18.1 You must pay our costs (including legal costs, as between solicitor and client) of and incidental to the enforcement or attempted enforcement of our rights, remedies and powers under these Terms of Trade
19. CREDIT INFORMATION
19.1 You consent to us and any financier or credit-rating agency making enquiries of and obtaining any information about your financial standing and creditworthiness.
20. TERMINATION
20.1 Either party may terminate these Terms of Trade by giving one month's written notice to the other party.
21. JURISDICTION
21.1 These Terms of Trade are governed by and construed in accordance with the current laws of New Zealand and the parties agree subject to clause 23 to submit to the nonexclusive jurisdiction of the Courts of New Zealand for any disputes or proceedings arising out of or in connection with these Terms of Trade.
22. ASSIGNMENT
22.1 You must not subcontract or assign any of your rights, powers or obligations under these Terms of Trade.
23. DISPUTES
23.1 Any claim or dispute arising under these Terms of Trade shall be determined by arbitration under the Arbitration Act 1996 if the parties are unable to resolve such dispute themselves within one (1) month of the dispute arising. However, nothing in this clause prevents either party from taking immediate steps to seek any equitable relief before the New Zealand Courts. 24.
FORCE MAJEURE
24.1 We shall not be liable for delay or failure to perform the Work if the cause of delay or failure is beyond our control.
25. SURVIVAL
25.1 The provisions of this clause 25 and of clauses 1, 2 3, 6, 9, 10, 11, 12, 13, 15, 17, 18, 21 and 23 of these Terms of Trade and any other provision which by its nature is intended to survive the termination or expiration of these Terms of Trade will survive the termination or expiration of these Terms of Trade or completion of the Work.
LRR-679940-1-8-1-LRR