4. Payment Terms
5. Default & Consequences of Default
6. Specifications, Delivery and Installation
1.1 These Terms and Conditions of Sale apply to all Goods and Services from time to time provided by your EmbroidMe New Zealand Store ("EmbroidMe") to the purchaser of those goods ("the Buyer").
1.2 In the event that other terms and conditions are imported into any contractual documentation between EmbroidMe and the Buyer then, unless specifically authorised in writing by a director of EmbroidMe, these Terms and Conditions of Sale shall prevail.
2.1 Buyers are strongly recommended to place orders in writing. Orders should clearly state the Buyer's particular requirements. EmbroidMe will not be responsible for errors or omissions due to oversight or to misinterpretation of the Buyer's verbal instructions.
2.2 Quotations are only for work according to original specifications. If through the Buyer's error, or omission, work has to be redone or alterations or additions to specifications are required, then EmbroidMe may make an additional charge. In the event that an order is cancelled or suspended by the Buyer, then EmbroidMe may immediately require the Buyer to pay for work done to the date of cancellation or suspension.
2.3 A quotation, unless previously withdrawn, is valid only for 30 days from the date it is given, unless otherwise specifically stated in the quotation form. Following this a new quotation will be required for any goods or services ordered.
2.4 EmbroidMe reserves the right not to undertake any work which in its opinion is or may be unlawful, offensive, or otherwise inappropriate.
2.5 Every endeavour will be made to supply the correct quantity ordered, but quotations are conditional upon a margin of 10% being allowed for overs or unders, these to be charged or deducted on a pro rata basis. Should EmbroidMe be required to match any shade or colour, then a tolerance will be allowed to such extent as shall reasonably achieve a match.
2.6 Where expedited delivery is requested by the Buyer, then an extra charge may be added to the quoted price.
3.1 The prices of goods or services supplied are as shown on EmbroidMe’s quotation, acceptance order, invoice, or other document. EmbroidMe reserves the right to charge for delivery, in addition to the amount shown in the quotation, acceptance of order, or other document.
3.2 Goods and Services Tax and any other tax duty or impost necessarily incurred (other than EmbroidMe’s own income tax) in the course of completing the work, shall be payable by the Buyer in addition to the quoted price, payable upon demand.
3.3 Quoted prices are based on the cost of materials, labour, and services as at the date of the quotation. Should there be any increase in these costs, as are necessarily incurred by EmbroidMe in completing the order, then such increases may, at EmbroidMe sole discretion, be added to the quoted price, payable at the same time, and in the same manner as the balance of the quoted price.
4.1 All accounts are payable by the 20th day of the month following the date of the invoice.
4.2 The Buyer agrees that the terms of trade are strictly settlement on or before the 20th of the month following the month of delivery.
4.3 Progress payments may be required where work is completed over an extended period of time. After work has been in hand for one month or more, a progress payment of up to 75% of the value of the work completed may be requested. Further progress payments calculated on the same basis may be required to be paid on a monthly basis, until completion of the work.
4.4 EmbroidMe may allocate any payment received from the Buyer against any debt owed by the Buyer, in any manner that EmbroidMe may decide, notwithstanding any purported allegation by the Buyer.
5.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of one and a half percent (1.5%) per calendar month (and at EmbroidMe’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
5.2 In the event that the Buyer’s payment is dishonoured for any reason the Buyer shall be liable for any dishonour fees incurred by EmbroidMe.
5.3 If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify EmbroidMe from and against all costs and disbursements incurred by EmbroidMe in pursuing the debt including legal costs on a solicitor and own client basis and EmbroidMe’s collection agency costs.
5.4 Without prejudice to any other remedies EmbroidMe may have, if at any time the Buyer is in breach of any obligation (including those relating to payment) EmbroidMe may suspend or terminate the supply of goods to the Buyer and any of its other obligations under the terms and conditions. EmbroidMe will not be liable to the Buyer for any loss or damage the Buyer suffers because EmbroidMe has exercised its rights under this clause.
5.5 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 be payable each month that the debt remains overdue and become immediately due and payable.
5.6 Without prejudice to EmbroidMe’s other remedies at law EmbroidMe shall be entitled to cancel all or any part of any order of the Buyer which remains unfulfilled and all amounts owing to EmbroidMe shall, whether or not due for payment, become immediately payable in the event that:
a) any money payable to EmbroidMe becomes overdue, or in EmbroidMe’s opinion the Buyer will be unable to meet its payments as they fall due; or
b) the Buyer 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 Buyer or any asset of the Buyer.
6.1 EmbroidMe will use every reasonable endeavour to deliver every order within the time specified (if any) by the Buyer, but EmbroidMe will not be liable for any loss or damage sustained, as a consequence of inability to do so, or any delay.
6.2 On delivery of goods the Buyer must immediately inspect them to satisfy itself that they meet the order, and are in good condition. If at such time the Buyer is not satisfied, then it must immediately notify EmbroidMe in writing. Unless notification is made within 5 working days of delivery, then irrespective of the nature or extent of the alleged defect or deficiency, EmbroidMe will not be liable in any way in respect of it.
6.3 Unless specifically stated in the body of a quotation, no retentions will be recognised, nor will any other special conditions of contract affect the quotation unless stated.
6.4 If EmbroidMe do not receive forwarding instructions sufficient to enable delivery within 14 days after notification that the goods are ready for despatch, the Buyer will as from the 15th day be deemed to have taken delivery of goods, and payment will become due as if delivery had then occurred. In such circumstances EmbroidMe will only be obliged to store such goods for so long as it is considered reasonably practicable, having regard to available storage space. During such time goods will be stored solely at the Buyer’s risk, and any costs of storage will be chargeable to the Buyer, in addition to the quoted price.
7.1 Risk in goods will pass to the Buyer immediately upon delivery. EmbroidMe will not be responsible for loss or damage to goods in transit, and the Buyer is required to insure goods against loss or other risks immediately following despatch.
7.2 Where the Buyer supplies plans, specifications, plant, goods or materials of any kind these shall be held by EmbroidMe at the Buyer’s risk. Whilst all care will be taken by EmbroidMe, no responsibility is accepted for any damage to materials during such time, and EmbroidMe reserves the right to dispose of materials if they are not collected by the Buyer within one calendar month after the work is completed.
8.1 EmbroidMe and Buyer agree that ownership of goods supplied shall not pass until the Buyer has paid EmbroidMe all amounts owing for the particular goods and EmbroidMe’s other rights and remedies in respect of this security interest are as specified in Clause 11.10 herein.
8.2 Receipt by EmbroidMe 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 EmbroidMe’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 EmbroidMe shall have received payment and all other obligations of the Buyer are met; and
b) until such time as ownership of the goods shall pass from EmbroidMe to the Buyer EmbroidMe may give notice in writing to the Buyer to return the goods or any of them to EmbroidMe. Upon such notice being given the rights of the Buyer to obtain ownership or any other interest in the goods shall cease; and
c) the Buyer is only a bailee of the goods and until such time as EmbroidMe has received payment in full for the goods then the Buyer shall hold any proceeds from the sale or disposal of the goods, up to and including the amount the Buyer owes to EmbroidMe for the goods, on trust for EmbroidMe; and
d) until such time that ownership in the goods passes to the Buyer, if the goods are converted into other products, the parties agree that EmbroidMe will be the owner of the end products; and
e) where any amount owed between the Buyer and EmbroidMe is overdue, then EmbroidMe may enter any premises at which if believes its goods are located, to seize those goods, and to dispose of them as EmbroidMe thinks fit, to apply such proceeds towards the amount then outstanding to EmbroidMe. The Buyer hereby irrevocably authorises EmbroidMe, and any of its agents or servants, to enter such premises, to locate, inspect, and/or seize such goods.
9.1 Whilst all care and attention is undertaken by EmbroidMe to deliver and/or install goods of the highest quality, and to ensure that all components (including vinyl, inks, media, paints and other materials) are purchased from reputable manufacturers, EmbroidMe does not guarantee the manufacture of such items. Where any defect or alleged defect is beyond the ability of EmbroidMe to control quality, EmbroidMe has no liability. Any defects due to faulty workmanship must be notified within 7 days after delivery. Any such defects will, at the discretion of EmbroidMe, be repaired or replaced free of charge.
9.2 Other than as provided in Subclause 9.1 hereof all warranties, representations or promises howsoever made, whether express, or implied by law are excluded and negated. In particular, where the Buyer acquires or holds itself out as acquiring, the goods for the purposes of a business the Consumer Guarantees Act 1993 will not apply.
9.3 Notwithstanding any other provision herein the total liability of EmbroidMe will at all times be limited to replacing goods or materials or workmanship which is defective to the value received by EmbroidMe under the relevant contract. No claim for consequential losses or damages of any kind will apply.
9.4 The Buyer will indemnify and hold harmless EmbroidMe against any losses, liabilities, costs or actions suffered or incurred as a consequence of any third party claiming that work undertaken by EmbroidMe is offensive or illegal, in breach of any intellectual property right, or other right which such third party may have.
10.1 If the Buyer is at any time in default of any of its obligations, covenants or agreements under these Terms and Conditions of Sale, then EmbroidMe may, by notice in writing to the Buyer, terminate any contract.
10.2 In such event the Buyer shall be liable to pay for the cost of any work (including preliminary work) undertaken at that time. Such cost shall be payable as a debt due immediately upon demand.
11.1 Applicable Law/Unenforceability
11.1.1 The law applying to any contract arising between EmbroidMe and the Buyer shall be the law of New Zealand.
11.1.2 In the event that any provision contained in these Terms and Conditions, or in any other collateral agreement or document between EmbroidMe and the Buyer is deemed illegal or unenforceable, then such provision shall be deemed to be excluded therefrom, but only to the extent required to remedy the illegality or unenforceability, and these terms and conditions, and such collateral document shall in all other respects apply in accordance with their stated terms.
11.2.1 EmbroidMe is entitled at any time to assign to any other party all or any part of a debt which is owing to EmbroidMe.
11.2.2 EmbroidMe may also assign or sub-contract any part of the work which is to be performed under any contract
11.2.3 In respect of such assignment (in either case) the assignee shall be entitled to the full rights of EmbroidMe previously applying.
11.3.1 EmbroidMe (or any such assignee) shall be entitled to set off against any monies which may be or may be alleged to be owing to the Buyer, the amount of any debt incurred or payable by the Buyer to EmbroidMe, or to such assignee.
11.4.1 All rights, powers and entitlements of EmbroidMe at law in respect of any contract shall remain in full force, notwithstanding any neglect, forbearance, delay, or waiver by EmbroidMe in enforcing them.
11.4.2 In the event that EmbroidMe waives or is deemed to have waived any condition, then unless such waiver is in writing and signed by the director of EmbroidMe, no such waiver shall be accepted. If accepted, such waiver shall apply only to the extent that it is specifically given, and shall not be deemed to affect any other dealing or matter between the Buyer and EmbroidMe.
11.5 Authority to Sign
11.5.1 The person signing any quotation on behalf of the Buyer acknowledges that they have authority to bind the Buyer.
11.5.2 In the event that, due to alleged deficiency in such authority, the Buyer is not liable then the person signing will be personally liable for payment of the debt arising.
11.6 Intellectual Property Rights
11.6.1 Unless it is specifically agreed in writing to the contrary EmbroidMe retains all intellectual property rights, including copyright, patents, registered designs, or protection of confidential information in respect of any works undertaken by EmbroidMe for the Buyer.
11.6.2 The Buyer will at all times keep EmbroidMe advised of any infringement or potential infringement by a third party of EmbroidMe’s intellectual property rights.
11.6.3 The Buyer will also immediately advise EmbroidMe of any alleged infringement by EmbroidMe of a third party’s intellectual property rights. The Buyer will indemnify and hold harmless EmbroidMe against any losses, costs, actions or liabilities suffered or incurred as a consequence of such infringement or alleged infringement.
11.7 Right of Variation
11.7.1 EmbroidMe reserves the right at any time to vary these Terms and Conditions of Sale, by notification to its customers.
11.8.1 In the event of any dispute arising between EmbroidMe and the Buyer, such dispute shall in the first instance be referred to mediation for resolution.
11.8.2 In the event that resolution by such manner is not achieved to the satisfaction of both parties within 30 days of referral to mediation, then either party may take legal action to resolve the dispute.
11.8.3 Nothing in this clause prevents EmbroidMe from taking legal action to enforce payment of any debt due, nor where required to seek interlocutory or injunctive relief.
11.9 Privacy Act
11.9.1 In relation to the Privacy Act 1993 the Buyer acknowledges that:
a) Personal information collected or held by EmbroidMe may be held, used or disclosed for any of the following purposes: administering (whether directly or indirectly) contracts or enforcing rights under contracts, marketing goods and services from time to time (including through EmbroidMe’s National Office or any other EmbroidMe Sign Centre), ascertaining at any time the Buyer’s creditworthiness, and obtaining credit reports, character references or credit statements, enabling EmbroidMe to notify any credit agency of any application for credit or default on any obligation of the Buyer to EmbroidMe, and enabling EmbroidMe to provide such personal information to any credit agency. Also enabling EmbroidMe to communicate with the Buyer for any purpose.
b) Such personal information (where applicable) is collected by and will be held by EmbroidMe whose address is specified in the quotation. The Buyer has the right under the Privacy Act to obtain access to, and request correction of, any personal information held by EmbroidMe.
c) The Buyer authorises EmbroidMe at any time to obtain from any person or entity any information which EmbroidMe requires to process and/or accept any application for credit.
d) The Buyer authorises any person to release to EmbroidMe for the purpose of establishing the Buyer’s creditworthiness any personal information that person holds concerning the Buyer.
e) If the Buyer fails to provide any information requested by EmbroidMe in respect of any application for credit, such credit may not be provided.
11.10 Personal Property Securities Act (“PPSA”)
11.10.1 In respect of the security interest created by Clause 8.1 herein and upon assenting to these terms and conditions in writing the Buyer 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 EmbroidMe to the Buyer (if any) and all goods that will be supplied in the future by EmbroidMe to the Buyer.
11.10.2 The Buyer 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 EmbroidMe may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, EmbroidMe 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 EmbroidMe; and
(d) immediately advise EmbroidMe 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.
11.10.3 EmbroidMe and the Buyer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
11.10.4 The Buyer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
11.10.5 Unless otherwise agreed to in writing by EmbroidMe, the Buyer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
11.10.6 If EmbroidMe at any time does not have priority over all secured parties in relation to any goods then, pursuant to Section 107(1) of the PPSA, for the purposes of dealing with those goods the Buyer and EmbroidMe specifically contract out of Sections 108 and 109 of the PPSA, to the extent of replacing the words “a secured party with priority over all other secured parties”, in each case, with “EmbroidMe”.
11.10.7 The Buyer shall unconditionally ratify any actions taken by EmbroidMe under clauses 11.10.1 to 11.10.6.
11.11 Security & Charge
11.11.1 Despite anything to the contrary contained herein or any other rights which EmbroidMe may have howsoever:
(a) where the Buyer is the owner of land, realty or any other asset capable of being charged, the Buyer agrees to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to EmbroidMe or EmbroidMe’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Buyer acknowledges and agrees that EmbroidMe (or EmbroidMe’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 EmbroidMe elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Buyer shall indemnify EmbroidMe from and against all EmbroidMe’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Buyer agrees to irrevocably nominate constitute and appoint EmbroidMe or EmbroidMe’s nominee as the Buyer’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 11.11.