Terms & Conditions of Trade

 

1. Preamble

1.1 All Services of Ladybug Design 2015 Ltd, whether gratuitous or not, are supplied subject to these terms and conditions of trade.

 

2. Definitions

2.1 “Company” shall mean Ladybug Design 2015 Ltd and its successors and assigns.

2.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by the Company to the Client.

2.3 “Guarantor” means that person (or persons), or entity who agrees to be liable for the debts of the Client on a principal debtor basis.

2.4 “Materials” shall mean all data, graphics, pictures, trade marks, software and other materials to be incorporated in the Services.

2.5 “Goods” shall mean Goods supplied by the Company to the Client (and where the context so permits shall include any supply of Services) and are as described on any documents provided by the Company to the Client.

2.6 “Services” shall mean design work and other services supplied by the Company to the Client and include any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).

2.8 “Price” shall mean the cost of the Goods as agreed between the Company and the Client subject to clause 4 of this contract.

 

3. Acceptance

3.1 Any instructions received by the Company from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by the Company shall constitute acceptance of the terms and conditions contained herein.

3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.

3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of the Company.

3.4 The Client undertakes to give the Company at least fourteen (14) days’ notice of any change in the Client’s name, address and/or any other change in the Client’s details.

 

4. Price and Payment

4.1 At the Company’s sole discretion the Price shall be either:

(a) as indicated on invoices provided by the Company to the Client in respect of Goods supplied; or

(b) the Company’s quoted Price (subject to clause 4.2 and 19) which shall be binding upon the Company provided that the Client shall accept the Company’s quotation in writing within thirty (30) days.

4.2 The Company reserves the right to change the Price in the event of a variation to the Company’s quotation.

4.3 At the Company’s sole discretion payment for fifty percent (50%) of the quoted Price shall be due upon acceptance of the Company’s quotation.

4.4 Unless otherwise mutually agreed prior to the completion date of the project, the balance of payment shall be invoiced to the Client two (2) weeks from the mutually agreed project competition date whether or not the Goods have been delivered and/or Services have been completed, if it is agreed that the Client has delayed the project completion date by way of not delivering information, content or not making timely decisions critical to the project time frame.

4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due fourteen (14) days following the date of the invoice.

4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Client and the Company.

4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

4.8 Unless otherwise agreed, the Client shall bear the cost of fonts, or colour proofs, or artwork, specially bought at the Client’s request for the job.

4.9 When quotations are based on specifications, roughs, layouts, samples or dummies or printed, typewritten or other good copy, any extra work or cost caused by any variation by the Client of its original instructions or by the manuscript copy being, in the Company’s opinion, poorly prepared or by the Client’s requirements being different from those originally submitted or described may be charged to the Client and shown as extras on the invoice.

4.10 All work carried out whether experimentally or otherwise at the Client’s request will be charged to the Client.

 

5. Delivery of Goods

5.1 At the Company’s sole discretion delivery of the Goods shall take place when:

(a) the Client takes possession of the Goods at the Company’s address; or

(b) the Client takes possession of the Goods at the Client’s address (in the event that the Goods are delivered by the Company)..

5.2 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then the Company shall be entitled to charge a reasonable fee for redelivery.

5.3 The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.

5.4 The failure of the Company to deliver shall not entitle either party to treat this contract as repudiated.

 

6. Risk

6.1 If the Company retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.

6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, the Company is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Company is sufficient evidence of the Company’s rights to receive the insurance proceeds without the need for any person dealing with the Company to make further enquiries.

6.3 The Company shall be under no liability whatsoever to the Client for any variation (beyond the reasonable control of the Company) in colours between the approved prototype and the finished Goods.

6.4 Whilst every care is taken by the Company to carry out the instructions of the Client, it is the Client’s responsibility to undertake a final proof reading of the Goods. The Company shall be under no liability whatever for any errors not corrected by the Client in the final proof reading. Should the Clients alterations require additional proofs this shall be invoiced as an extra.

6.5 When style, type or layout is left to the Company’s judgement, then the Client makes further alterations to the copy this will be invoiced as an extra.

 

7. Client’s Property and Material Supplied by Client

7.1 In the case of property and materials left with the Company without specific instructions, the Company shall be free to dispose of them at the end of twelve months after it receiving them and to accept and retain the proceeds, if any, to cover its own costs in holding and handling them.

7.2 Where materials or equipment are supplied by the Client the Company accepts no responsibility for imperfect work caused by defects in or unsuitability of such materials or equipment.

7.3 Any change or correction to any film, bromides, artwork and/or any printing surface supplied by the Client deemed necessary by the Company to ensure correctly finished work shall be invoiced as an extra.

 

8. Title

8.1 The Company and Client agree that ownership of the Goods shall not pass until:

(a) the Client has paid the Company all amounts owing for the particular Goods; and

(b) the Client has met all other obligations due by the Client to the Company in respect of all contracts between the Company and the Client.

8.2 Receipt by the Company 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 the Company’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 the Company shall have received payment and all other obligations of the Client are met; and

(b) until such time as ownership of the Goods shall pass from the Company to the Client the Company may give notice in writing to the Client to return the Goods or any of them to the Company. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and

(c) the Company shall have the right of stopping the Goods in transit whether or not delivery has been made; and

(d) if the Client fails to return the Goods to the Company then the Company or the Company’s agent may (as the invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Goods are situated and take possession of the Goods; and

(e) the Client is only a bailee of the Goods and until such time as the Company has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods on trust for the Company; and

(f) the Client shall not deal with the money of the Company in any way which may be adverse to the Company;

and

(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Company; and

(h) the Company can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and

(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that the Company will be the owner of the end products.

 

9. Personal Property Securities Act 1999 (“PPSA”)

9.1 Upon assenting to these terms and conditions in writing the Client 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 the Company to the Client (if any) and all Goods that will be supplied in the future by the Company to the Client.

9.2 The Client 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 the Company may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;

(b) indemnify, and upon demand reimburse, the Company 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 the Company; and

(d) immediately advise the Company 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 The Company and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.

9.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.

9.5 Unless otherwise agreed to in writing by the Company, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.

9.6 The Client shall unconditionally ratify any actions taken by the Company under clauses 9.1 to 9.5.

 

10. Defects

10.1 The Client shall inspect the Goods on delivery and shall within fourteen (14) days of delivery (time being of the essence) notify the Company of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford the Company an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Company has agreed in writing that the Client is entitled to reject, the Company’s liability is limited to either (at the Company’s discretion) replacing the Goods or repairing the Goods.

10.2 Goods will not be accepted for return other than in accordance with 10.1 above.

 

11. Warranty

11.1 To the extent permitted by statute, no warranty is given by the Company as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. The Company shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.

11.2 Once accepted by the Client, the Company’s written quotation shall be deemed to interpret correctly the Client’s instructions, whether written or verbal. Where verbal instructions only are received from the Client, the Company shall not be responsible for errors or omissions due to oversight or misinterpretation of those instructions.

 

12. Copyright and Intellectual Property

12.1. Unless otherwise agreed, the Company shall retain copyright and intellectual property rights in all documents, reports, records, media, electronic files, drawings and designs prepared for and on the Client’s behalf.

12.2. The Client will be entitled to use the documents and any copies for the purposes for which they were intended however they are not permitted to make use of, or modify any such document for any other purpose without the Company’s agreement in writing. Concepts not chosen will remain the property of the Company.

12.3. On completion and full payment of branding projects the intellectual property rights of the Client’s logo design will transfer to the Client.

12.4. Trademarking and company incorporation (where applicable) is the sole responsibility of the Client.

 

13. Default and Consequences of Default

13.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of two and one half percent (2.5%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgement.

13.2 If the Client defaults in payment of any invoice when due, the Client shall indemnify the Company from and against all costs and disbursements incurred by the Company in pursuing the debt including legal costs on a solicitor and own Client basis and the Company’s collection agency costs.

13.3 Without prejudice to any other remedies the Company may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Company may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. The Company will not be liable to the Client for any loss or damage the Client suffers because the Company has exercised its rights under this clause.

13.4 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.

13.5 Without prejudice to the Company’s other remedies at law the Company shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Company shall, whether or not due for payment, become immediately payable in the event that:

(a) any money payable to the Company becomes overdue, or in the Company’s opinion the Client will be unable to meet its payments as they fall due; or

(b) the Client 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 Client or any asset of the Client.

 

14. Cancellation

14.1 The Company 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 Client. On giving such notice the Company shall repay to the Client any sums paid in respect of the Price. The Company shall not be liable for any loss or damage whatever arising from such cancellation.

14.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by the Company (including, but not limited to, any loss of profits) up to the time of cancellation.

14.3 Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.

 

15. Privacy Act 1993

15.1 The Client and the Guarantor/s (if separate to the Client) authorises the Company to:

(a) collect, retain and use any information about the Client and/or Guarantors, for the purpose of assessing the Client’s and/or Guarantors creditworthiness or marketing products and services to the Client and/or Guarantors;

and

(b) disclose information about the Client and/or Guarantors, whether collected by the Company from the Client and/or Guarantors directly or obtained by the Company 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 Client and/or Guarantors.

15.2 Where the Client and/or Guarantors are an individual the authorities under clause 18.1 are authorities or consents for the purposes of the Privacy Act 1993.

15.3 The Client and/or Guarantors shall have the right to request the Company for a copy of the information about the Client and/or Guarantors retained by the Company and the right to request the Company to correct any incorrect information about the Client and/or Guarantors held by the Company.

 

16. Unpaid Company’s Rights

16.1 Where the Client has left any item with the Company for repair, modification, exchange or for the Company to perform any other Service in relation to the item and the Company has not received or been tendered the whole of the Price, or the payment has been dishonoured, the Company shall have:

(a) a lien on the item;

(b) the right to retain the item for the Price while the Company is in possession of the item;

(c) a right to sell the item.

16.2 The lien of the Company shall continue despite the commencement of proceedings, or judgement for the Price having been obtained.

 

17. General

17.1 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.

17.2 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 courts of Napier.

17.3 The Company shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Company of these terms and conditions.

17.4 In the event of any breach of this contract by the Company the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.

17.5 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by the Company nor to withhold payment of any invoice because part of that invoice is in dispute.

17.6 The Company may license or sub-contract all or any part of its rights and obligations without the Client’s consent.

17.7 The Company reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Company notifies the Client of such change.

17.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.

17.9 The failure by the Company to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Company’s right to subsequently enforce that provision.