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Peek Display Corporation Ltd – Terms & Conditions of Trade

1. Definitions
1.1 “PDCL” shall mean Peek Display Corporation Ltd, its successors and assigns or any person acting on behalf of and with the authority of Peek Display Corporation Ltd.
1.2 “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 PDCL to the Client.
1.3 “Guarantor” shall mean that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 “Goods” shall mean all Goods supplied by PDCL to the Client (and where the context so permits shall include any supply of Equipment and/or Services as hereinafter defined) and includes Goods described on any invoices, quotation, work authorisation or any other forms as provided by PDCL to the Client.
1.5 “Equipment” shall mean all Equipment including any accessories supplied on hire by PDCL to the Client (and where the context so permits shall include any supply of Goods and/or Services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other order / authorisation form provided by PDCL to the Client.
1.6 “Services” shall mean all services supplied by PDCL to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods and/or Equipment as defined above).
1.7 “Price” shall mean the price payable for the Goods as agreed between PDCL and the Client in accordance with clause 3 of this contract.

2. Acceptance
2.1 Any instructions received by PDCL from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by PDCL shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
2.3 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 PDCL.
2.4 The Client shall give PDCL not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by PDCL as a result of the Client’s failure to comply with this clause.
2.5 Goods are supplied by PDCL only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.

3. Price and Payment
3.1 At PDCL’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by PDCL to the Client in respect of Goods supplied; or
(b) PDCL’s quoted Price (subject to clause 3.2) which shall be binding upon PDCL provided that the Client shall accept PDCL’s quotation in writing within fifteen (15) days.
3.2 PDCL reserves the right to change the Price in the event of a variation to PDCL’s quotation.
3.3 At PDCL’s sole discretion a deposit may be required at least fifteen (15) days prior to delivery of the Goods.
3.4 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 seven (7) days following the date of the invoice.
3.5 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card, or by direct credit, or by any other method as agreed to between the Client and PDCL.
3.6 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. Delivery of the Goods
4.1 At PDCL’s sole discretion delivery of the Goods shall take place when the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by PDCL or PDCL’s nominated carrier).
4.2 At PDCL’s sole discretion the costs of delivery are included in the Price.
4.3 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
4.4 The failure of PDCL to deliver shall not entitle either party to treat this contract as repudiated.
4.5 PDCL shall not be liable for any loss or damage whatsoever due to failure by PDCL to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of PDCL.

5. Risk
5.1 If PDCL retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
5.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, PDCL is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by PDCL is sufficient evidence of PDCL’s rights to receive the insurance proceeds without the need for any person dealing with PDCL to make further enquiries.

6. Title
6.1 PDCL and Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid PDCL all amounts owing for the particular Goods; and
(b) the Client has met all other obligations due by the Client to PDCL in respect of all contracts between PDCL and the Client.
6.2 Receipt by PDCL 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 PDCL’s ownership or rights in respect of the Goods shall continue.
6.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until PDCL 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 PDCL to the Client PDCL may give notice in writing to the Client to return the Goods or any of them to PDCL. Upon such notice being given the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) the Client is only a bailee of the Goods and until such time as PDCL has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to PDCL for the Goods, on trust for PDCL; and
(d) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that PDCL will be the owner of the end products; and
(e) if the Client fails to return the Goods to PDCL then PDCL or PDCL’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Goods are situated as the invitee of the Client and take possession of the Goods, and PDCL will not be liable for any reasonable loss or damage suffered as a result of any action by PDCL under this clause.

7. Personal Property Securities Act 1999 (“PPSA”)
7.1 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 PDCL to the Client (if any) and all Goods that will be supplied in the future by PDCL to the Client.
7.2 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 PDCL may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, PDCL 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 PDCL; and
(d) immediately advise PDCL 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.
7.3 PDCL and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
7.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
7.5 Unless otherwise agreed to in writing by PDCL, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
7.6 The Client shall unconditionally ratify any actions taken by PDCL under clauses 7.1 to 7.5.

8. Client’s Disclaimer
8.1 The Client hereby disclaims any right to rescind, or cancel any contract with PDCL or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by PDCL and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgment.

9. Defects
9.1 The Client shall inspect the Goods on delivery and shall within twenty-four (24) hours of delivery (time being of the essence) notify PDCL of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford PDCL 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 PDCL has agreed in writing that the Client is entitled to reject, PDCL’s liability is limited to either (at PDCL’s discretion) replacing the Goods or repairing the Goods.
9.2 Goods will not be accepted for return other than in accordance with 9.1 above.

10. Warranty
10.1 For Goods not manufactured by PDCL, the warranty shall be the current warranty provided by the manufacturer of the Goods. PDCL shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
10.2 To the extent permitted by statute, no warranty is given by PDCL as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. PDCL shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.

11. Consumer Guarantees Act 1993
11.1 If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by PDCL to the Client.

12. Intellectual Property
12.1 Where PDCL has designed, drawn or written Goods for the Client, then the copyright in those designs and drawings and documents shall remain vested in PDCL, and shall only be used by the Client at PDCL’s discretion.
12.2 The Client warrants that all designs or instructions to PDCL will not cause PDCL to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify PDCL against any action taken by a third party against PDCL in respect of any such infringement.

13. Equipment Hire
13.1 The Equipment shall at all times remain the property of PDCL and are returnable on demand by PDCL. In the event that the Equipment is not returned to PDCL in the condition in which it was delivered PDCL retains the right to charge the cost of repair or replacement of the Equipment.
13.2 The Client shall;
(a) keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to lien over the Equipment and the Client accepts full responsibility for the safekeeping of the Equipment and indemnifies PDCL for all loss theft or damage to the Equipment howsoever caused and without limiting the generality of the foregoing whether or not such loss theft or damage is attributable to any negligence failure or omission of the Client; and
(b) not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment; and
(c) keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by PDCL to the Client; and
(d) comply with all occupational health and safety laws relating to the Equipment and its operation; and
13.3 The Client acknowledges and agrees that it loans the Equipment at its own risk and the Client is responsible for safeguarding the Equipment until such Equipment is returned to, or collected by, PDCL.

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 PDCL’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
14.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by PDCL.
14.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify PDCL from and against all costs and disbursements incurred by PDCL in pursuing the debt including legal costs on a solicitor and own client basis and PDCL’s collection agency costs.
14.4 Without prejudice to any other remedies PDCL may have, if at any time the Client is in breach of any obligation (including those relating to payment) PDCL may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. PDCL will not be liable to the Client for any loss or damage the Client suffers because PDCL has exercised its rights under this clause.
14.5 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 become immediately due and payable.
14.6 Without prejudice to PDCL’s other remedies at law PDCL shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to PDCL shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to PDCL becomes overdue, or in PDCL’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.

15. Security and Charge
15.1 Despite anything to the contrary contained herein or any other rights which PDCL may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to PDCL or PDCL’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that PDCL (or PDCL’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 PDCL elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify PDCL from and against all PDCL’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint PDCL or PDCL’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 15.1.

16. Cancellation
16.1 PDCL 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 PDCL shall repay to the Client any sums paid in respect of the Price. PDCL shall not be liable for any loss or damage whatsoever arising from such cancellation.
16.2 In the event that the Client cancels delivery of the Goods the Client shall be liable for any loss incurred by PDCL (including, but not limited to, any loss of profits) up to the time of cancellation.

17. Privacy Act 1993
17.1 The Client and the Guarantor/s (if separate to the Client) authorises PDCL 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 PDCL from the Client and/or Guarantors directly or obtained by PDCL 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.
17.2 Where the Client and/or Guarantors are an individual the authorities under clause 17.1 are authorities or consents for the purposes of the Privacy Act 1993.
17.3 The Client and/or Guarantors shall have the right to request PDCL for a copy of the information about the Client and/or Guarantors retained by PDCL and the right to request PDCL to correct any incorrect information about the Client and/or Guarantors held by PDCL.

18. General
18.1 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.
18.2 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 New Zealand.
18.3 PDCL 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 PDCL of these terms and conditions.
18.4 In the event of any breach of this contract by PDCL the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
18.5 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 PDCL nor to withhold payment of any invoice because part of that invoice is in dispute.
18.6 PDCL may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
18.7 PDCL 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 PDCL notifies the Client of such change.
18.8 The provisions of the Contractual Remedies Act 1979 shall apply to this contract as if section 15(d) were omitted from the Contractual Remedies Act 1979.
18.9 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.
18.10 The failure by PDCL to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect PDCL’s right to subsequently enforce that provision.