Terms & Conditions of Trade
1. Definitions
1.1 “Contract” means the terms and conditions contained herein,
together with any Quotation, order, invoice or other document or
amendments expressed to be supplemental to this Contract.
1.2 “SDL” means Soni Design Limited T/A Soni Design or
realestatedesigner.co.nz, its successors and assigns or any
person acting on behalf of and with the authority of Soni Design
Limited T/A Soni Design or realestatedesigner.co.nz.
1.3 “Customer” means the person/s, entities or any person acting on
behalf of and with the authority of the Customer requesting SDL to
provide the Services as specified in any proposal, quotation, order,
invoice or other documentation, and:
(a) if there is more than one Customer, is a reference to each
Customer jointly and severally; and
(b) if the Customer is a partnership, it shall bind each partner
jointly and severally; and
(c) if the Customer is a part of a Trust, shall be bound in their
capacity as a trustee; and
(d) includes the Customer’s executors, administrators,
successors and permitted assigns.
1.4 “Goods” means all Goods or Services supplied by SDL to the
Customer at the Customer’s request from time to time (where the
context so permits the terms ‘Goods’ or ‘Services’ shall be
interchangeable for the other).
1.5 “Confidential Information” means information of a confidential
nature whether oral, written or in electronic form including, but not
limited to, this Contract, either party’s intellectual property,
operational information, know-how, trade secrets, financial and
commercial affairs, contracts, client information (including but not
limited to, “Personal Information” such as: name, address,
D.O.B, occupation, driver’s license details, electronic contact
(email, Facebook or Twitter details), medical insurance details or
next of kin and other contact information (where applicable),
previous credit applications, credit history) and pricing details.
1.6 “Cookies” means small files which are stored on a user’s
computer. They are designed to hold a modest amount of data
(including personal information) specific to a particular client and
website, and can be accessed either by the web server or the
client’s computer. If the Customer does not wish to allow
Cookies to operate in the background when ordering from the
website, then the Customer shall have the right to enable /
disable the Cookies first by selecting the option to enable /
disable provided on the website, prior to ordering Goods via
the website.
1.7 “Price” means the Price payable (plus any Goods and Services
Tax (“GST”) where applicable) for the Goods as agreed between
SDL and the Customer in accordance with clause 5 below.
2. Acceptance
2.1 The Customer is taken to have exclusively accepted and is
immediately bound, jointly and severally, by these terms and
conditions if the Customer places an order for or accepts Delivery
of the Goods.
2.2 In the event of any inconsistency between the terms and
conditions of this Contract and any other prior document or
schedule that the parties have entered into, the terms of this
Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this
Contract may only be amended in writing by the consent of both
parties.
2.4 The Customer acknowledges and accepts that:
(a) the supply of Goods on credit shall not take effect until the
Customer has completed a credit application with SDL and it
has been approved with a credit limit established for the
account; and
(b) in the event that the supply of Goods request exceeds the
Customers credit limit and/or the account exceeds the
payment terms, SDL reserves the right to refuse Delivery; and
(c) the supply of Goods for accepted orders may be subject to
availability and if, for any reason, Goods are not or cease to
be available, SDL reserves the right to vary the Price with
alternative Goods as per clause 5.2, subject to prior
confirmation and agreement of both parties. SDL also
reserves the right to halt all Services until such time as SDL
and the Customer agree to such changes. SDL shall not be
liable to the Customer for any loss or damage the Customer
suffers due to SDL exercising its rights under this clause.
2.5 The Customer is strongly recommended to place an order in
writing. Orders should clearly state the Customer’s particular
requirements. SDL will not be responsible for errors or omissions
due to oversight or to misinterpretation of the Customer’s verbal
instructions.
2.6 SDL reserves the right not to undertake any work which in its
opinion is or may be unlawful, offensive, or otherwise
inappropriate.
2.7 Electronic signatures shall be deemed to be accepted by either
party providing that the parties have complied with Section 226 of
the Contract and Commercial Law Act 2017 or any other
applicable provisions of that Act or any Regulations referred to in
that Act.
3. Errors and Omissions
3.1 The Customer acknowledges and accepts that SDL shall, without
prejudice, accept no liability in respect of any alleged or actual
error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by SDL in the
formation and/or administration of this Contract; and/or
(b) contained in/omitted from any literature (hard copy and/or
electronic) supplied by SDL in respect of the Services.
3.2 In the event such an error and/or omission occurs in accordance
with clause 3.1, and is not attributable to the negligence and/or
wilful misconduct of SDL; the Customer shall not be entitled to
treat this Contract as repudiated nor render it invalid.
4. Change in Control
4.1 The Customer shall give SDL not less than fourteen (14) days prior
written notice of any proposed change of ownership of the
Customer and/or any other change in the Customer’s details
(including but not limited to, changes in the Customer’s name,
address and contact phone or fax number/s, change of trustees or
business practice). The Customer shall be liable for any loss
incurred by SDL as a result of the Customer’s failure to comply
with this clause.
5. Price and Payment
5.1 At SDL’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by SDL to the Customer;
or
(b) the Price as at the date of Delivery of the Goods according to
SDL’s current price list; or
(c) SDL’s quoted price (subject to clause 5.2) which will be valid
for the period stated in the quotation or otherwise for a period
of thirty (30) days.
5.2 SDL reserves the right to change the Price:
(a) if a variation to the Goods which are to be supplied is
requested; or
(b) if a variation to the Services originally scheduled (including
any applicable plans or specifications) is requested; or
(c) if during the course of the Services, the Goods are not or
cease to be available from SDL’s third party suppliers, then
SDL reserves the right to provide alternative Goods; or
(d) in the event of increases to SDL in the cost of labour or
Goods which are beyond SDL’s control.
5.3 Variations will be charged for on the basis of SDL’s quotation, and
will be detailed in writing, and shown as variations on SDL’s
invoice. The Customer shall be required to respond to any
variation submitted by SDL within ten (10) working days. Failure to
do so will entitle SDL to add the cost of the variation to the Price.
Payment for all variations must be made in full at the time of their
completion.
5.4 At SDL’s sole discretion a non-refundable deposit may be
required.
5.5 Time for payment for the Goods being of the essence, the Price
will be payable by the Customer on the date/s determined by SDL,
which may be:
(a) on Delivery of the Goods;
(b) before Delivery of the Goods;
(c) by way of instalments/progress payments in accordance with
SDL’s payment schedule;
(d) for certain approved Customers, due twenty (20) days
following the end of the month in which a statement is posted
to the Customer’s address or address for notices;
(e) the date specified on any invoice or other form as being the
date for payment; or
(f) failing any notice to the contrary, the date which is seven (7)
days following the date of any invoice given to the Customer
by SDL.
5.6 Payment may be made by electronic/on-line banking, credit card (a
surcharge per transaction may apply), or by any other method as
agreed to between the Customer and SDL.
5.7 SDL may in its discretion allocate any payment received from the
Customer towards any invoice that SDL determines and may do so
at the time of receipt or at any time afterwards. On any default by
the Customer SDL may re-allocate any payments previously
received and allocated. In the absence of any payment allocation
by SDL, payment will be deemed to be allocated in such manner
as preserves the maximum value of SDL’s Purchase Money
Security Interest (as defined in the PPSA) in the Goods.
5.8 The Customer shall not be entitled to set off against, or deduct
from the Price, any sums owed or claimed to be owed to the
Customer by SDL nor to withhold payment of any invoice because
part of that invoice is in dispute.
5.9 Unless otherwise stated the Price does not include GST. In
addition to the Price, the Customer must pay to SDL an amount
equal to any GST SDL must pay for any supply by SDL under this
or any other contract for the sale of the Goods. The Customer
must pay GST, without deduction or set off of any other amounts,
at the same time and on the same basis as the Customer pays the
Price. In addition, the Customer must pay any other taxes and
duties that may be applicable in addition to the Price except where
they are expressly included in the Price.
6. Delivery of Goods
6.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that
SDL (or SDL’s nominated carrier) delivers the Goods to the
Customer’s nominated address even if the Customer is not present
at the address.
6.2 At SDL’s sole discretion the cost of Delivery is in addition to the
Price.
6.3 Any time specified by SDL for Delivery of the Goods is an estimate
only. The Customer must take Delivery by receipt or collection of
the Goods whenever they are tendered for Delivery. SDL will not
be liable for any loss or damage incurred by the Customer as a
result of Delivery being late. In the event that the Customer is
unable to take Delivery of the Goods as arranged then SDL shall
be entitled to charge a reasonable fee for redelivery and/or
storage.
6.4 SDL may deliver the Goods in separate instalments. Each
separate instalment shall be invoiced and paid in accordance with
the provisions in these terms and conditions.
7. Risk
7.1 Risk of damage to or loss of the Goods passes to the Customer on
Delivery and the Customer must insure the Goods on or before
Delivery.
7.2 If any of the Goods are damaged or destroyed following Delivery
but prior to ownership passing to the Customer, SDL is entitled to
receive all insurance proceeds payable for the Goods. The
production of these terms and conditions by SDL is sufficient
evidence of SDL’s rights to receive the insurance proceeds without
the need for any person dealing with SDL to make further
enquiries.
7.3 If the Customer requests SDL to leave Goods outside SDL’s
premises for collection or to deliver the Goods to an unattended
location then such Goods shall be left at the Customer’s sole risk.
7.4 SDL shall be entitled to rely on the accuracy of any instructions
and other information provided by the Customer. The Customer
acknowledges and agrees that in the event that any of this
information provided by the Customer is inaccurate, SDL accepts
no responsibility for any loss, damages, or costs however resulting
from these inaccurate instructions or other information.
7.5 SDL is under no obligation to provide samples of Goods ordered
other than by virtual (computerised) sample. Whilst every effort will
be taken by SDL to match virtual colours with physical colours,
SDL will take no responsibility for any variation between virtual
sale samples and either the virtual sale sample displayed on the
Customer’s computer and/or the final product. In the event that a
physical sample is required this will be provided on request by the
Customer and will be charged for as an extra including return
freight.
7.6 Where SDL is requested to design or commission sign writing or
printing services using measurements or dimensions supplied by
the Customer or their representatives, and these measurements
are found to be incorrect the Customer is liable for the costs for the
re-creation of the sign writing or printing as well as the original
production costs.
7.7 All work carried out whether experimentally or otherwise at the
Customer’s request will be charged to the Customer.
7.8 Any tabulated work and/or foreign language included in the job but
not contained in the manuscript originally submitted for the
purpose of estimating may be charged to the Customer and shown
as a variation according to clause 5.2.
7.9 While every effort will be taken by SDL to match PMS colours,
SDL 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.
7.10 SDL shall not be held liable for inks wearing off through general
wear and tear.
7.11 Unless otherwise agreed, the Customer shall bear the cost of
fonts, or colour proofs, or artwork, specially bought at its request
for the Services.
7.12 Any change or correction to any film, bromides, artwork and/or any
printing surface supplied by the Customer which is deemed
necessary by SDL to ensure correctly finished work shall be
invoiced as an extra.
7.13 When style, type or layout is left to SDL’s judgment, then the
Customer makes further alterations to the copy this will be shown
as a variation in accordance with clause 5.2.
7.14 Whilst every care is taken by SDL to carry out the instructions of
the Customer, it is the Customer’s responsibility to undertake a
final proof reading of the Goods. SDL shall be under no liability
whatsoever for any errors not corrected by the Customer in the
final proof reading. Should the Customer’s alterations require
additional proofs this shall be shown as a variation in accordance
with clause 5.2.
7.15 Where the performance of any contract with the Customer requires
SDL to obtain Goods or Services from a third party, the contract
between SDL and the Customer shall incorporate and shall be
subject to the conditions of supply of such Goods and Services to
SDL, and the Customer shall be liable for the cost in full including
SDL’s margin of such Goods or Services.
7.16 Where materials are supplied by the Customer for the provision of
Services, SDL shall accept no liability for imperfect work caused by
defects in, or the unsuitability of, such materials for the Services.
7.17 In the case of property and materials left with SDL without specific
instructions, SDL shall be free to dispose of them at the end of
three (3) months after the receiving of them and to accept and
retain any proceeds gained from such disposal to cover SDL’s
costs in holding and handling such items.
7.18 It shall be the Customer’s responsibility to retain a copy of the
image or file.
7.19 The Customer acknowledges and accepts that Goods supplied
may exhibit variations in shade, colour, texture, surface and finish,
and may fade or change colour over time. SDL will make every
effort to match batches of product supplied in order to minimise
such variations but shall not be liable for any loss, damages or
costs howsoever arising resulting from any variation in colour,
shading or grain between batches of product or sale samples and
the final product supplied.
8. Title
8.1 SDL and the Customer agree that ownership of the Goods shall
not pass until:
(a) the Customer has paid SDL all amounts owing to SDL; and
(b) the Customer has met all of its other obligations to SDL.
8.2 Receipt by SDL 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.
8.3 It is further agreed that until ownership of the Goods passes to the
Customer in accordance with clause 8.1:
(a) the Customer is only a bailee of the Goods and must return
the Goods to SDL on request;
(b) the Customer holds the benefit of the Customer’s insurance of
the Goods on trust for SDL and must pay to SDL the
proceeds of any insurance in the event of the Goods being
lost, damaged or destroyed;
(c) the Customer must not sell, dispose, or otherwise part with
possession of the Goods other than in the ordinary course of
business and for market value. If the Customer sells, disposes
or parts with possession of the Goods then the Customer
must hold the proceeds of any such act on trust for SDL and
must pay or deliver the proceeds to SDL on demand;
(d) the Customer should not convert or process the Goods or
intermix them with other goods but if the Customer does so
then the Customer holds the resulting product on trust for the
benefit of SDL and must sell, dispose of or return the resulting
product to SDL as it so directs;
(e) the Customer irrevocably authorises SDL to enter any
premises where SDL believes the Goods are kept and
recover possession of the Goods;
(f) SDL may recover possession of any Goods in transit whether
or not Delivery has occurred;
(g) the Customer shall not charge or grant an encumbrance over
the Goods nor grant nor otherwise give away any interest in
the Goods while they remain the property of SDL;
(h) SDL may commence proceedings to recover the Price of the
Goods sold notwithstanding that ownership of the Goods has
not passed to the Customer.
9. Personal Property Securities Act 1999 (“PPSA”)
9.1 Upon assenting to these terms and conditions in writing the
Customer 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 and/or collateral
(account) – being a monetary obligation of the Customer to
SDL for Services – that have previously been supplied and
that will be supplied in the future by SDL to the Customer.
9.2 The Customer 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 SDL may reasonably require
to register a financing statement or financing change
statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, SDL 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, or permit to be registered, a financing statement
or a financing change statement in relation to the Goods
and/or collateral (account) in favour of a third party without the
prior written consent of SDL; and
(d) immediately advise SDL 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 SDL and the Customer agree that nothing in sections 114(1)(a),
133 and 134 of the PPSA shall apply to these terms and
conditions.
9.4 The Customer waives its rights as a debtor under sections 116,
120(2), 121, 125, 126, 127, 129 and 131 of the PPSA.
9.5 Unless otherwise agreed to in writing by SDL, the Customer
waives its right to receive a verification statement in accordance
with section 148 of the PPSA.
9.6 The Customer shall unconditionally ratify any actions taken by SDL
under clauses 9.1 to 9.5.
9.7 Subject to any express provisions to the contrary (including those
contained in this clause 9), nothing in these terms and conditions
is intended to have the effect of contracting out of any of the
provisions of the PPSA.
10. Security and Charge
10.1 In consideration of SDL agreeing to supply the Goods, the
Customer charges all of its rights, title and interest (whether joint or
several) in any land, realty or other assets capable of being
charged, owned by the Customer either now or in the future, to
secure the performance by the Customer of its obligations under
these terms and conditions (including, but not limited to, the
payment of any money).
10.2 The Customer indemnifies SDL from and against all SDL’s costs
and disbursements including legal costs on a solicitor and own
client basis incurred in exercising SDL’s rights under this clause.
10.3 The Customer irrevocably appoints SDL and each director of SDL
as the Customer’s true and lawful attorney/s to perform all
necessary acts to give effect to the provisions of this clause 10
including, but not limited to, signing any document on the
Customer’s behalf.
11. Defects
11.1 The Customer shall inspect the Goods on Delivery and shall within
forty-eight (48) hours of Delivery (time being of the essence) notify
SDL of any alleged defect, shortage in quantity, damage or failure
to comply with the description or quote. The Customer shall afford
SDL an opportunity to inspect the Goods within a reasonable time
following Delivery if the Customer believes the Goods are
defective in any way. If the Customer shall fail to comply with these
provisions the Goods shall be presumed to be free from any defect
or damage. For defective Goods, which SDL has agreed in writing
that the Customer is entitled to reject, SDL’s liability is limited to
either (at SDL’s discretion) replacing the Goods or repairing the
Goods.
11.2 Goods will not be accepted for return other than in accordance
with 11.1 above, and provided that:
(a) SDL has agreed in writing to accept the return of the Goods;
and
(b) the Goods are returned at the Customer’s cost within seven
(7) days of the Delivery date; and
(c) SDL will not be liable for Goods which have not been stored
or used in a proper manner; and
(d) the Goods are returned in the condition in which they were
delivered and with all packaging material, brochures and
instruction material in as new condition as is reasonably
possible in the circumstances.
11.3 SDL will not accept the return of non-defective Goods for credit.
11.4 Subject to clause 11.1, non-stocklist items or Goods made to the
Customer’s specifications are not acceptable for credit or return.
12. Consumer Guarantees Act 1993
12.1 If the Customer is acquiring Goods for the purposes of a trade or
business, the Customer acknowledges that the provisions of the
Consumer Guarantees Act 1993 do not apply to the supply of
Goods by SDL to the Customer.
13. Intellectual Property
13.1 Where SDL has designed, drawn or developed Goods for the
Customer, then the copyright in any designs and drawings and
documents shall remain the property of SDL. Under no
circumstances may such designs, drawings and documents be
used without the express written approval of SDL.
13.2 The Customer warrants that all designs, specifications or
instructions given to SDL will not cause SDL to infringe any patent,
registered design or trademark in the execution of the Customer’s
order and the Customer agrees to indemnify SDL against any
action taken by a third party against SDL in respect of any such
infringement.
13.3 The Customer agrees that SDL may (at no cost) use for the
purposes of marketing or entry into any competition, any
documents, designs, drawings or Goods which SDL has created
for the Customer.
14. Default and Consequences of Default
14.1 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 SDL’s sole
discretion such interest shall compound monthly at such a rate)
after as well as before any judgment.
14.2 If the Customer owes SDL any money the Customer shall
indemnify SDL from and against all costs and disbursements
incurred by SDL in recovering the debt (including but not limited to
internal administration fees, legal costs on a solicitor and own
client basis, SDL’s collection agency costs, and bank dishonour
fees).
14.3 Further to any other rights or remedies SDL may have under this
Contract, if a Customer has made payment to SDL, and the
transaction is subsequently reversed, the Customer shall be liable
for the amount of the reversed transaction, in addition to any
further costs incurred by SDL under this clause 14 where it can be
proven that such reversal is found to be illegal, fraudulent or in
contravention to the Customer’s obligations under this Contract.
14.4 Without prejudice to SDL’s other remedies at law SDL shall be
entitled to cancel all or any part of any order of the Customer
which remains unfulfilled and all amounts owing to SDL shall,
whether or not due for payment, become immediately payable if:
(a) any money payable to SDL becomes overdue, or in SDL’s
opinion the Customer will be unable to make a payment when
it falls due;
(b) the Customer has exceeded any applicable credit limit
provided by SDL;
(c) the Customer 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
(d) a receiver, manager, liquidator (provisional or otherwise) or
similar person is appointed in respect of the Customer or any
asset of the Customer.
15. Cancellation
15.1 Without prejudice to any other remedies SDL may have, if at any
time the Customer is in breach of any obligation (including those
relating to payment) under these terms and conditions SDL may
suspend or terminate the supply of Goods to the Customer. SDL
will not be liable to the Customer for any loss or damage the
Customer suffers because SDL has exercised its rights under this
clause.
15.2 SDL 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 Customer. On giving
such notice SDL shall repay to the Customer any money paid by
the Customer for the Goods. SDL shall not be liable for any loss or
damage whatsoever arising from such cancellation.
15.3 In the event that the Customer cancels Delivery of Goods the
Customer shall be liable for any and all loss incurred (whether
direct or indirect) by SDL as a direct result of the cancellation
(including, but not limited to, any loss of profits).
15.4 Cancellation of orders for Goods made to the Customer’s
specifications, or for non-stocklist items, will definitely not be
accepted once production has commenced, or an order has been
placed.
16. Privacy Policy
16.1 All emails, documents, images or other recorded information held
or used by SDL is Personal Information as defined and referred to
in clause 16.3 and therefore considered confidential. SDL
acknowledges its obligation in relation to the handling, use,
disclosure and processing of Personal Information pursuant to
the Privacy Act 1993 (“the Act”) including Part II of the OECD
Guidelines and as set out in Schedule 5A of the Act and any
statutory requirements where relevant in a European Economic
Area “EEA” then the EU Data Privacy Laws (including the General
Data Protection Regulation “GDPR”) (collectively, “EU Data
Privacy Laws”). SDL acknowledges that in the event it becomes
aware of any data breaches and/or disclosure of the Customers
Personal Information, held by SDL that may result in serious harm
to the Customer, SDL will notify the Customer in accordance with
the Act and/or the GDPR. Any release of such personal
information must be in accordance with the Act and the GDPR
(where relevant) and must be approved by the Customer by written
consent, unless subject to an operation of law.
16.2 Notwithstanding clause 16.1, privacy limitations will extend to SDL
in respect of Cookies where transactions for purchases/orders
transpire directly from SDL’s website. SDL agrees to display
reference to such Cookies and/or similar tracking technologies,
such as pixels and web beacons (if applicable), such technology
allows the collection of Personal Information such as the
Customer’s:
(a) IP address, browser, email client type and other similar
details;
(b) tracking website usage and traffic; and
(c) reports are available to SDL when SDL sends an email to the
Customer, so SDL may collect and review that information
(“collectively Personal Information”)
In order to enable / disable the collection of Personal Information
by way of Cookies, the Customer shall have the right to enable /
disable the Cookies first by selecting the option to enable / disable,
provided on the website prior to proceeding with a purchase/order
via SDL’s website.
16.3 The Customer authorises SDL or SDL’s agent to:
(a) access, collect, retain and use any information about the
Customer;
(i) (including, name, address, D.O.B, occupation, driver’s
license details, electronic contact (email, Facebook or
Twitter details), medical insurance details or next of kin
and other contact information (where applicable),
previous credit applications, credit history or any overdue
fines balance information held by the Ministry of Justice)
for the purpose of assessing the Customer’s
creditworthiness; or
(ii) for the purpose of marketing products and services to the
Customer.
(b) disclose information about the Customer, whether collected
by SDL from the Customer directly or obtained by SDL 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
Customer.
16.4 Where the Customer is an individual the authorities under clause
16.3 are authorities or consents for the purposes of the Privacy Act
1993.
16.5 The Customer shall have the right to request SDL for a copy of the
Personal Information about the Customer retained by SDL and the
right to request SDL to correct any incorrect Personal Information
about the Customer held by SDL.
17. Dispute Resolution
17.1 All disputes and differences between the Customer and SDL
touching and concerning this agreement shall be referred to
arbitration under a single arbitrator agreed upon by both parties, or
failing agreement, by two arbitrators (one to be appointed by each
party) and their umpire (appointed by them prior to arbitration),
such arbitration to be carried out in accordance with provisions of
the Arbitration Act 1996.
18. Service of Notices
18.1 Any written notice given under this Contract shall be deemed to
have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this
Contract;
(c) by sending it by registered post to the address of the other
party as stated in this Contract;
(d) if sent by facsimile transmission to the fax number of the other
party as stated in this Contract (if any), on receipt of
confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
18.2 Any notice that is posted shall be deemed to have been served,
unless the contrary is shown, at the time when by the ordinary
course of post, the notice would have been delivered.
19. Trusts
19.1 If the Customer at any time upon or subsequent to entering in to
the Contract is acting in the capacity of trustee of any trust (“Trust”)
then whether or not SDL may have notice of the Trust, the
Customer covenants with SDL as follows:
(a) the Contract extends to all rights of indemnity which the
Customer now or subsequently may have against the Trust
and the trust fund;
(b) the Customer has full and complete power and authority
under the Trust to enter into the Contract and the provisions
of the Trust do not purport to exclude or take away the right of
indemnity of the Customer against the Trust or the trust fund.
The Customer will not release the right of indemnity or commit
any breach of trust or be a party to any other action which
might prejudice that right of indemnity;
(c) the Customer will not without consent in writing of SDL (SDL
will not unreasonably withhold consent), cause, permit, or
suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Customer
as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
20. General
20.1 The failure by either party to enforce any provision of these terms
and conditions shall not be treated as a waiver of that provision,
nor shall it affect that party’s right to subsequently enforce that
provision. 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.
20.2 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 Auckland Courts of New Zealand.
20.3 SDL shall be under no liability whatsoever to the Customer for any
indirect and/or consequential loss and/or expense (including loss
of profit) suffered by the Customer arising out of a breach by SDL
of these terms and conditions (alternatively SDL’s liability shall be
limited to damages which under no circumstances shall exceed the
Price of the Goods).
20.4 SDL may licence and/or assign all or any part of its rights and/or
obligations under this Contract without the Customer’s consent.
20.5 The Customer cannot licence or assign without the written
approval of SDL.
20.6 SDL may elect to subcontract out any part of the Services but shall
not be relieved from any liability or obligation under this Contract
by so doing. Furthermore, the Customer agrees and understands
that they have no authority to give any instruction to any of SDL’s
sub-contractors without the authority of SDL.
20.7 The Customer agrees that SDL may amend their general terms
and conditions for subsequent future contracts with the Customer
by disclosing such to the Customer in writing. These changes shall
be deemed to take effect from the date on which the Customer
accepts such changes, or otherwise at such time as the Customer
makes a further request for SDL to provide Goods to the
Customer.
20.8 Neither party shall be liable for any default due to any act of God,
war, terrorism, strike, lock-out, industrial action, fire, flood, storm or
other event beyond the reasonable control of either party.
20.9 Both parties warrant that they have the power to enter into this
Contract and have obtained all necessary authorisations to allow
them to do so, they are not insolvent and that this Contract creates
binding and valid legal obligations on them.