1. General
1.1
The Order and these terms and conditions ("Terms and Conditions") shall constitute the sole evidence of the contract between the Company and the Buyer to the exclusion of all conditions and warranties statutory or otherwise not expressly incorporated herein and it is strictly understood by the Buyer that the Buyer enters into these Terms and Conditions solely and exclusively in reliance upon its own judgment and not upon any representation, condition or warranty made or alleged to be made by the Company (including, but without limitation, the Company's employees, contractors, officers and agents).
1.2
These Terms and Conditions do not limit any rights that the Buyer may have under the CGA.
2. Interpretation
2.1
In these Terms and Conditions, unless the context otherwise requires:
"Buyer" means the person referred to in the Order, and includes its successors and assigns.
"CGA" means the Consumer Guarantees Act 1993.
"Company" means Rainbow Print Limited (whether described under that name or any of its trading divisions - Rainbow Print, Chaucer Press or PrintMonday), and includes its successors and assigns.
"Delivery Company" means the company selected by the Company to collect the Goods from the Company and deliver them to the Buyer.
"Electronic File" means any electronic file relating to the production of the Goods by the Company.
"Goods" means the goods supplied or to be supplied by the Company to the Buyer pursuant to these Terms and Conditions and the Order, and includes the services supplied or to be supplied by the Company to the Buyer under these Terms and Conditions and/or the Order in connection with the supply of such goods.
"GST" means goods and services tax properly chargeable under the GST Act.
"GST Act" means the Goods and Services Tax Act 1985.
"Order" means the order for Goods placed by the Buyer with the Company.
"Print Ready File" means any print ready file relating to the productions of the Goods by the Company.
"Specifications" means any copy, sketches, mock-ups, written instructions, verbal instructions, electronic files and other information relating to the Goods.
3. Orders
3.1
The Company reserves the right to refuse to accept any Order, in whole or in part.
3.2
The Buyer shall not be entitled to cancel any Order or any part of an Order without the written consent of the Company (which may be withheld by the Company in its sole and absolute discretion), and then only if the Buyer agrees to reimburse the Company for all costs and losses (including, but without limitation, the costs of reallocating labour and materials) directly or indirectly incurred or suffered by the Company up to the date of cancellation by the Buyer.
3.3
The Company shall not be liable for any errors or omissions arising from any oversight or mistake in any of the Specifications:
3.3.1
prepared by the Buyer (or any other person at the direction of the Buyer) and given to the Company; or
3.3.2
prepared by the Company (or any other person at the direction of the Company) and approved by the Buyer;
for the purposes of producing the Goods.
3.4
The Buyer agrees to indemnify and keep indemnified the Company from and against all costs, damages and expenses incurred by or recovered against the Company in respect of any claim where it is alleged or determined that the Goods (or any part of the Goods) contain unlawful or defamatory material.
4. Payment and Variations
4.1
The Buyer shall pay the Company for the Goods in full at the time of the Order and in the manner specified by the Company.
4.2
The Company will issue an invoice to the Buyer. Unless otherwise stated, GST will be charged at the rate applicable on the price of the Goods as at the date of purchase of the Goods.
4.3
Any variation in the quantity of Goods to be supplied to the Buyer or in the nature of the Goods to be supplied to the Buyer by the Company after the date of the Order shall be at the Buyer's expense. The Goods shall be priced at either the price applicable to the original quantity under the Order or such other price as the Company may determine in its sole and absolute discretion.
4.4
Additional charges (determined by the Company in its sole and absolute discretion) may be charged by the Company to the Buyer if bad or poorly prepared Specifications are provided to the Company by the Buyer. In addition, the Company reserves the right to charge the Buyer for duplicating or transferring stored electronic material to the Buyer which relates to the Goods.
4.5
The Buyer will be liable for and indemnifies the Company for all expenses (including solicitor-own client legal costs), costs, losses and damages incurred or suffered by the Company as a result (directly or indirectly) of any breach of these Terms and Conditions by the Buyer.
5. Return of Goods for Credit
5.1
No Goods will be accepted by the Company for return and credit without the prior written authority of the Company and then only on such terms and conditions as the Company may agree.
5.2
Credit will not be given for damaged or used Goods or for delivery charges.
5.3
All Goods accepted by the Company for credit must be delivered at the Buyer's expense in original condition and packaging and are subject to the Company's inspection following receipt.
6. Claims
6.1
If the Buyer has any claim in respect of the Goods or short supply of any Goods the claim must be made to the Company in writing within three (3) days of the date of delivery of the Goods. The fact that no such claim has been made shall be conclusive evidence in any proceedings or action of any kind between the Company and the Buyer that the Goods at the time of delivery were acceptable to the Buyer.
6.2
In any event, the maximum amount of any claim in relation to the provision of Goods by the Company shall be limited to the price invoiced to the Buyer by the Company in respect of the Goods.
6.3
The Company reserves the right in its discretion to repair or replace the Goods or to refund or credit the portion of the purchase price applicable thereto in respect of any claims accepted by the Company.
7. Title and Risk
7.1
The title and risk in the Goods supplied to the Buyer by the Company shall pass to the Buyer when the Goods are collected from the Company by the Delivery Company.
7.2
If purchased by the Buyer from the Company when the Goods are ordered from the Company, the Company will obtain insurance for such Goods from the Delivery Company at the sole cost of the Buyer and on the terms agreed between the Company and the Delivery Company ("the Insurance Policy"). If necessary, the Company will provide reasonable assistance to the Buyer in lodging a claim with the Delivery Company under the Insurance Policy if any loss or damage is caused to the Goods that the Company considers is covered under the terms of the Insurance Policy.
8. Intellectual Property
8.1
Where the Company has proprietary rights in patent, copyright, designs, brand name, designmark, servicemark, trademark and other data pertaining to the Goods (including, but without limitation, the Specifications) provided to the Buyer, the Company will retain all such rights.
8.2
Where the Buyer has proprietary rights in patent, copyright, designs, brand name, designmark, servicemark, trademark and other data pertaining to the Goods (including, but without limitation, the Specifications) provided by the Company to the Buyer, the Buyer will retain all such rights. The Buyer agrees to indemnify and keep indemnified the Company from and against all costs, damages and expenses incurred by or recovered against the Company in respect of any claim for infringement of any intellectual property where the Company has used such intellectual property on the instructions of the Buyer.
8.3
All Specifications provided by the Buyer to the Company must be legible and well-edited. The Buyer must maintain its own copies of any original Electronic Files and Print Ready File (if applicable). The Buyer shall have no right or title to material stored by the Company on disc, tapes or any other form of electronic storage.
9. Delivery
9.1
The Company will make every effort to complete delivery on the date agreed but the Company shall not be liable for late delivery or damages or losses of any kind (howsoever arising) as a result, directly or indirectly, of the late delivery of the Goods; nor will the Company be required to accept cancellation of any Order by the Buyer because of late delivery of the Goods.
9.2
Our aim is to despatch jobs within 3 to 4 days of receiving an order. This may vary depending on work loads but because we produce all items in-house we are flexible - if you need something urgently please email (info@printmonday.co.nz) and ask.
10. Force Majeure
10.1
The Company shall not be liable to the Buyer for damages or losses directly or indirectly arising from any delay or failure in delivery of the Goods or failure to perform any of the Terms and Conditions where such delay or failure is caused directly or indirectly by an act of God, frost, electrical failure, fire, armed conflict, labour dispute, civil commotion, Government intervention, or inability to obtain labour or materials, accidents, transportation delays, or any other cause beyond the Company's reasonable control.
11. Information and Privacy Act 1993
11.1
For the purposes of facilitating the administration of the Company's business, the Buyer authorises the Company:
11.1.1
to collect all information it may require about the Buyer from any third parties and authorises those third parties to release that information to the Company;
11.1.2
to hold all information given by the Buyer or any third party to the Company; and
11.1.3
to use the information and provide the information to third parties for the purpose of:
11.1.3.1
collecting debts from the Buyer;
11.1.3.2
providing the Buyer with details and information about the goods and services on offer by, or available from, the Company from time to time;
11.1.3.3
delivering the Goods or part of the Goods to the Buyer; and
11.1.3.4
manufacturing the Goods or part of the Goods.
11.2
The information will be collected, held and used on the condition that:
11.2.1
it will be held securely at the Company's originating office referred to on the Invoice;
11.2.2
it will be accessible to any of the Company's employees and agents who need access to it for the administration of the Company's business; and
11.2.3
the Buyer may request access to and correction of it at any time.
12. Consumer Guarantees Act 1993
12.1
Where the Company is supplying Goods to the Buyer for business purposes within the meaning of the CGA, pursuant to section 43 of the CGA, the provisions of the CGA will not apply to these Terms and Conditions.
12.2
Where the Buyer supplies the Goods on to a person acquiring them for business purposes it will be a term of the Buyer's contract with the buyer of the Goods that the CGA will not apply in respect of the Goods.
13. Default
13.1
If the Buyer fails to comply with these Terms and Conditions, the Company shall be entitled to:
13.1.1
cancel the Order or part of the Order;
13.1.2
suspend delivery of the Goods or part of the Goods; and
13.1.2
terminate these Terms and Conditions;
but without prejudice to the Company's rights against the Buyer.
14. Limitation of Liability
14.1
To the maximum extent permitted by law, and notwithstanding any other provision contained in these Terms and Conditions:
14.1.1
the total liability of the Company to the Buyer (whether in contract, tort or howsoever arising) for any loss, damage, injury, expense or cost suffered or incurred by the Buyer arising directly or indirectly from any defect in the Goods or any breach of these Terms and Conditions by the Company, shall be limited to the price invoiced to the Buyer by the Company for the Goods; and
14.1.2
in no circumstances, shall the Company be liable to the Buyer for any loss of profits or for any consequential, indirect or special damage or loss of any kind which the Buyer may suffer or incur.
15. Waiver and Forbearance
15.1
All the rights, powers, exemptions and remedies of the Company shall remain in full force notwithstanding any neglect forbearance or delay in enforcement thereof and the Company shall not be deemed to have waived any condition unless such waiver is in writing and signed by a duly authorised officer of the Company.
16. Enforceability
16.1
Each provision of these Terms and Conditions is severable in whole or in part and if any provision is held to be illegal or unenforceable for any reason, only the illegal or unenforceable portion shall be affected and the remainder shall remain in full force and effect.
17. Subcontracting
17.1
The Company may sub-contract the production, manufacture, supply and/or delivery of the Goods or part of the Goods without notice to the Buyer.
18. Dispute Resolution
18.1
If any dispute arises between the Buyer and the Company ("the Dispute"), the Buyer and the Company must first (without taking any other action) enter into discussions to attempt to resolve the Dispute.
18.2
Where any Dispute is not resolved pursuant to clause 18.1 within ten (10) working days of notice of the Dispute being given by either party, the Company shall be entitled (in its sole and absolute discretion) to refer the dispute to Printing Industries New Zealand ("PINZ") for mediation between the Company and the Buyer on the terms specified by PINZ.
18.3
If no agreement regarding the Dispute can be reached by the parties following any mediation conducted by PINZ, the parties may agree to refer the matter to be determined by arbitration to be conducted by PINZ.
19. Governing Law and Jurisdiction
19.1
These Terms and Conditions will be governed by, and construed in accordance with, the laws of New Zealand. The parties irrevocably submit to the exclusive jurisdiction of the courts of New Zealand with respect to any legal action, suit or proceeding or any other matter arising out of or in connection with these Terms and Conditions.
20. Confidentiality
20.1
The Buyer must not at any time disclose any information relating to the Company that has been disclosed to the Buyer by the Company. The Buyer shall take all reasonable steps to prevent any such disclosure to any third party (including, but without limitation, by the Buyers' employees, officers, contractors and/or agents).
21. Assignment
21.1
The Company may assign any of its rights and obligations under these Terms and Conditions to any person. The Buyer may not assign any of the Buyer's rights and obligations under these Terms and Conditions to any person without the prior consent of the Company (which consent may be withheld by the Company in its sole and absolute discretion).