Heartland Design & Print Terms & Conditions of Trade
1.1 “Seller” means Heartland Design & Print, its successors and assigns or any person acting on behalf of and with the authority of the Seller. Heartland Design & Print is part of the Heartland Group.
1.2 “Customer” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
1.3 “Goods” means all Goods and/or Services provided by the Seller to the Customer, at the Customer’s request, from time to time (including any apparel, designs, drawings, cards, pamphlets, flyers, newspapers, periodicals, magazines or any manuscript, advertisement, general copy, graphics, websites and other digital display material and/or content supplied by the Customer or any other product, created or deposited incidentally by the Seller in the course of supplying to the Customer any Goods (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other)) and are as described on the invoices, quotation, work authorisation or any other forms as provided by the Seller to the Customer.
1.4 “Heartland Group” means Heartland Design & Print and Heartland Technology and any other companies in the Heartland Group of companies as notified on our website from time to time.
1.5 “Price” means the Price payable (plus any Goods and Services Tax (GST) where applicable) for the Goods as agreed between the Seller and the Customer in accordance with clause 6 below.
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 These terms and conditions may only be amended by the Seller and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and the Seller.
2.3 The Customer acknowledges that:
(a) any advice, recommendation, information, assistance or service provided by the Seller in relation to Goods supplied is given in good faith, is based on the Seller’s own knowledge and experience and shall be accepted without liability on the part of the Seller, and it shall be the responsibility of the Customer to confirm the accuracy and reliability of the same in light of the use to which the Customer makes or intends to make of the Goods; and
(b) where colour matching is required, the Customer agrees to supply information and samples regarding the correct colour. Matching colours can be difficult therefore, the Seller does not guarantee that production prints will exactly match colour proofs, the Seller will endeavour to ensure as close a match as possible would met industry standards; and
(c) at the Seller’s discretion, the Seller reserves the right to refuse to reproduce any material or produce any Goods that are, in the Seller’s opinion, illegal, objectionable, or libellous in nature or that is in breach of any copyright, patent, design or statue.
2.4 None of the Seller’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the Director of the Seller in writing nor is the Seller bound by any such unauthorised statements.
2.5 All literature, samples, specifications, dimensions and weights submitted with any quotation are approximate only and the data and descriptions contained in catalogues and other advertising material while being as accurate as possible may not necessarily be identical with products and services the Seller supplies, and the Seller reserves the right to supply products that have minor modifications in specifications as the Seller sees fit.
2.6 The descriptions, illustrations and performances contained in catalogues, other advertising material and price lists do not form part of the contract of sale of the Goods.
2.7 The Seller may at any time in its sole discretion apply any credit balance owing by any member of the Heartland Group to a Customer in satisfaction of any amounts owing by that Customer to any member of the Heartland Group, whether or not such amount has fallen due for payment.
3. ELECTRONIC TRANSACTIONS ACT 2002
3.1 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 22 of the Electronic Transactions Act 2002 or any other applicable provisions of that Act or any Regulations referred to in that Act.
4. AUTHORISED REPRESENTATIVES
4.1 The Customer acknowledges that the Seller (for the duration of the Services) liaises directly with one (1) or more authorised representatives, and that once introduced as such to the Seller, that person or persons shall have the full authority of the Customer to order any Goods and/or to request any variation thereto on the Customer’s behalf. The Customer accepts that they will be solely liable to the Seller for all additional costs incurred by Seller (including the Seller’s profit margin) in providing any Services or variation/s requested thereto by the Customer’s duly authorised representative.
4.2 In the event that the Customer’s duly authorised representatives as per clause 4.1 are to have only limited authority to act on the Customer’s behalf then the Customer must specifically and clearly advise the Seller in writing of the parameters of the limited authority granted to their representatives.
5. CHANGE IN CONTROL
5.1 The Customer shall give the Seller 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, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by the Seller as a result of the Customer’s failure to comply with this clause.
6. PRICE AND PAYMENT
6.1 At the Seller’s sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by the Seller to the Customer; or
(b) the Price as at the date of delivery of the Goods according to the Seller’s current price list; or
(c) the Seller’s quoted price (subject to clause 6.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
6.2 The Seller reserves the right to change the Price if a variation to the Seller’s quotation is requested. Variations will be charged for on the basis of the Seller’s quotation, and will be detailed in writing, and shown as variations on the Seller’s invoice. The Customer shall be required to respond to any variation submitted by the Seller within ten (10) working days. Failure to do so will entitle the Seller 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.
6.3 At the Seller’s sole discretion, a non-refundable deposit may be required.
6.4 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by the Seller, which may be:
(a) on delivery of the Goods;
(b) before delivery of the Goods;
(c) by way of instalments in accordance with the Seller’s payment schedule. The Seller may, in the event that the Seller is of the view that completing the Customer’s order will take more than a month, at any time before the order is completed, issue one (1) or more invoices for the proportion of the amount of the Goods (the amount to be at the Seller’s discretion) and require that portion to be paid in advance of any further Goods supplied. If the order is suspended for more than thirty (30) days at the request of the Customer, or as a result of something for which the Customer is responsible, the Seller may issue an invoice for a particular amount (to be specified by the Seller) for Goods already supplied, and for other costs incurred by the Seller (such as storage costs, etc.); or
(d) for certain approved Customers, due twenty (20) days following the end of the month in which a statement is sent to the Customer;
(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 the Seller.
6.5 Payment may be made by cash, bank cheque, electronic/on-line banking, credit card (a surcharge per transaction may apply), or by any other method as agreed to between the Customer and the Seller.
6.6 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 the Seller nor to withhold payment of any invoice because part of that invoice is in dispute.
6.7 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to the Seller an amount equal to any GST the Seller must pay for any supply by the Seller under this or any other agreement 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.
7.1 The Seller reserves the right to change the Price in the event of a variation to the quoted Goods, including:
(a) any preliminary work, and work carried out experimentally, speculatively, or otherwise at the Customer’s request; and
(b) any extra work or cost caused by any variation by the Customer of its original instructions, or by the those instructions being, in the Seller‘s opinion, poorly prepared, or by the Customer’s requirements being different from those originally submitted or described; and
(c) any tabulated work and/or foreign language to be incorporated in the Goods, but not contained in the Customer’s instructions originally submitted; and
(d) additional work required to be done as a result of author’s corrections, including repagination or reformatting; or
(e) work required to be done urgently, including any overtime costs; or
(f) handling or storing Property supplied for the purposes of supplying the Goods; or
(g) any changes or corrections to any plates, film, bromides, artwork any document (including computer files) supplied by the Customer, and deemed necessary by the Seller to ensure correctly completed Goods; and
(h) when style, type or layout is left to the Seller’s judgement, and the Customer makes further alterations; and
(i) any overset matter (being matter produced on the Customer’s instructions, but not used for the supply of Goods as was intended); and
(j) where the performance of the contract with the Customer requires the Seller to obtain products and/or services from a third party:
(i) the contract between the Seller and the Customer shall incorporate, and shall be subject to, the conditions of supply of such products and/or services to the Seller, and
(ii) the Customer shall be liable for the cost in full including the Seller’s margin of such products and/or services; and
(iii) the Seller shall not be liable for any breach of these terms and conditions if that breach is a result of, or is connected with, the supply by any third party of such products and/or services; and
(iv) the Seller acquires such products and/or services as agent for the Customer and not as principal, and the Seller shall have no liability to the Customer in relation to the supply of those products and/or services. Any claim by the Customer in relation to the products and/or services must be made directly against the third party; and
(v) title to any such products and/or service obtained from any third party and incorporated in the Goods passes to the Seller at the time of incorporation.
(k) any costs and charges of Delivery, or other charges, fees or disbursements referred to in these terms and conditions and not specified in this clause.
8. PROOF READING & COLOUR PROOFS
8.1 Whilst every care is taken by the Seller to carry out the instructions of the Customer, if the Seller submits to the Customer a proof of the Goods, the Seller will not be responsible for any errors which appeared in the proof which were not corrected by the Customer before the Goods are produced.
8.2 The Seller provides no guarantee that production prints will exactly match colour proofs because of variations in proof preparation methods and substrates. The Seller will however, use its best endeavours to provide a commercially acceptable finished product.
8.3 The Customer shall indemnify, and keep indemnified, the Seller at all times against all actions, proceedings, claims, demands, liabilities, either express or implied, and all costs, losses, losses of profit,
damages and expenses whatsoever which may be taken against the Seller, or incurred or become payable by the Seller, resulting or arising from the Customer being in breach of clause 8.1.
9. DELIVERY OF GOODS
9.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Goods at the Seller’s address; or
(b) the Seller (or the Seller’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
9.2 At the Seller’s sole discretion, the cost of delivery is either included in the Price or is in addition to the Price.
9.3 Whilst every endeavour will be made to deliver the correct quantity ordered, the Customer acknowledges that the difficulty of producing exact quantities, estimates and/or orders are conditional upon a margin of ten percent (10%) being allowed for shortages or over- runs (owing to human and/or machine/computer error), which may be charged for, or deducted from, the Price on a pro rata basis to reflect the actual quantity of Goods produced.
9.4 The Seller will not be responsible for storing any data on disks, tapes, DVD’s, servers, drives or other media when the Goods have been delivered. If the Seller agrees to store such data, the Seller may charge the Customer for doing so in accordance with clause 7.
9.5 The Seller 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.
9.6 Any time specified by the Seller for delivery of the Goods is an estimate only and the Seller will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that the Seller is unable to supply the Goods as agreed solely due to any action or inaction of the Customer, then the Seller shall be entitled to charge a reasonable fee for redelivery and/or storage.
10. FABRICS AND PRINTING
10.1 The Customer acknowledges:
(a) artwork for process printing on t-shirts & other fabrics are different to that of paper printing; the Seller takes no responsibility for supplied artwork when resulting print does not meet the Customer’s expectations. Screens and sampling costs will be charged in accordance with clause 7.
(b) sublimation is a process whereby the fabric dye migrates directly with the printed ink, causing the print to become faded or dull. It is recommended that fabrics be colour tested or sampling to be done before production commences. This usually occurs with printing on polycottons, synthetics and poly-microns, etc. the Seller will not accept any claim for defects resulting from sublimation; and
(c) whilst the Seller will take all due care, no responsibility is taken for poor fabrics which burn/shrink because they are unable to withstand flash curing. It is the Customer’s responsibility to ensure that all garments/fabrics supplied are of sufficient quality and strength; and
(d) stock not in the Seller’s warehouse at least seventy-two (72) hours or extended dependent on delivery quantity prior to the agreed date of Delivery will be subject to rescheduling without notice. It is the Customer’s responsibility to ensure that all stock has been organised and delivered to the Seller’s premises in a timely manner; and
(e) if the stock supplied by the Customer show discrepancies with the final size breakdown/count/colour or product supplied, etc., the Seller will place the Customer’s order on hold until the discrepancies have been rectified.
10.2 Imprints or any legal obligations required to appear on any printed material are the responsibility of the Customer. The Seller reserves the right to place its imprint on all printed material unless specifically requested otherwise.
11.1 Irrespective of whether the Seller retains ownership of any Goods, all risk for such items shall pass to the Customer on Delivery, and shall remain with the Customer until such time as the Seller may repossess the Goods in accordance with clause 14.3(e). The Customer must insure all Goods on, or before, Delivery. In the event the Customer rejects the Goods in accordance with clause 18.1, risk reverts to the Seller at the time the Customer notifies the Seller that the Goods are rejected.
11.2 The Seller reserves its right to seek compensation or damages for any damage, destruction or loss suffered in relation to the Goods as a result of the Customer’s failure to insure in accordance with clause 11.1.
11.3 If the Customer requests the Seller to leave Goods outside the Seller’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.
12. MATERIAL OR EQUIPMENT SUPPLIED BY CUSTOMER
12.1 Where the Customer supplies material or equipment (“Property”) to the Seller for the supply of the Goods:
(a) the Property will be held by the Seller at the Customer’s risk, and:
(i) the Seller shall not be liable to the Customer for loss, howsoever caused, of any data stored on disks, tapes, compact disks or other media supplied by the Customer to the Seller; and
(ii) subject to sub-clause (i), the Seller will not be liable for the damage, loss or destruction of any Property of the Customer in the Seller’s possession, unless the loss or damage is due to the failure of the Seller to exercise due care and still in handling or storing the Property.
(b) adequate quantities shall be supplied to cover spoilage. Sheets and other materials shall not be counted or checked when received, unless requested by the Customer in writing, and this shall be charged as an extra in accordance with clause 7.1; and
(c) the Seller accepts no responsibility for imperfect work caused by defects in or unsuitability of such Property; and
(d) title to any Property incorporated in the Goods passes to the Seller at the time of incorporation; and
(e) the Seller has no obligation to insure any Property in the Seller’s possession. The Customer must pay the cost of any insurance arranged by the Seller as the request of the Customer.
12.2 In the case of Property left with the Seller without specific instructions, the Seller shall be free to dispose of them (including in accordance with clause 27) on expiry of twelve (12) months after receiving them, and to accept and retain the proceeds, if any, to cover the Seller’s own costs in holding and handling them.
13.1 If the contract relates to more than one (1) issue of a periodical:
(a) each issue will, for the purposes of these terms and conditions, be considered to be one (1) order; and
(b) subject to clause 24.1, a party may not terminate a contract to which these terms and conditions apply unless:
(i) in the case of periodicals published weekly or more frequently, that party has given four (4) weeks’ notice of that party’s intention to terminate the contract; or
(ii) in the case of periodicals published fortnightly or more frequently (but less frequently than weekly), that party has given eight (8) weeks’ notice of that party’s intention to terminate the contract; or
(iii) in the case of periodicals published less frequently than fortnightly, that party has given thirteen (13) weeks’ notice of that party’s intention to terminate the contract.
14.1 The Seller and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid the Seller all amounts owing to the Seller; and
(b) the Customer has met all of its other obligations to the Seller.
14.2 Receipt by the Seller 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.
14.3 It is further agreed that until ownership of the Goods passes to the Customer in accordance with clause 14.1:
(a) the Customer is only a bailee of the Goods and must return the Goods to the Seller on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for the Seller and must pay to the Seller 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 the Seller and must pay or deliver the proceeds to the Seller 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 the Seller and must sell, dispose of or return the resulting product to the Seller as it so directs.
(e) the Customer irrevocably authorises the Seller to enter any premises where the Seller believes the Goods are kept and recover possession of the Goods.
(f) the Seller 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 the Seller.
(h) the Seller may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
15. PERSONAL PROPERTY SECURITIES ACT 1999 (“PPSA”)
15.1 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 the Seller for Services – that have previously been supplied and that will be supplied in the future by the Seller to the Customer.
15.2 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 the Seller 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 Seller 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 the Seller; and
(d) immediately advise the Seller 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.
15.3 The Seller and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
15.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
15.5 Unless otherwise agreed to in writing by the Seller, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
15.6 The Customer shall unconditionally ratify any actions taken by the Seller under clauses 15.1 to 15.5.
16. SECURITY AND CHARGE
16.1 In consideration of the Seller 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).
16.2 The Customer indemnifies the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own Customer basis incurred in exercising the Seller’s rights under this clause.
16.3 The Customer irrevocably appoints the Seller and each director of the Seller as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 16 including, but not limited to, signing any document on the Customer’s behalf.
17. CUSTOMER’S DISCLAIMER
17.1 The Customer hereby disclaims any right to rescind, or cancel any
contract with the Seller or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by the Seller and the Customer acknowledges that the Goods are bought relying solely upon the Customer’s skill and judgment.
18.1 The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Seller 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 the Seller has agreed in writing that the Customer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods or repairing the Goods.
18.2 Goods will not be accepted for return other than in accordance with 18.1 above, and provided that:
(a) the Seller 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) the Seller 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.
18.3 The Seller will not accept the return of Goods for credit.
18.4 The Seller may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of ten percent (10%) of the value of the returned Goods plus any freight.
18.5 Subject to clause 18.1, non-stocklist items or Goods made to the Customer’s specifications are not acceptable for credit or return.
19.1 For Goods not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller 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.
19.2 To the extent permitted by statute, no warranty is given by the Seller as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. The Seller shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
20. CONSUMER GUARANTEES ACT 1993
20.1 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 the Seller to the Customer.
21. INTELLECTUAL PROPERTY AND CONFIDENTIALITY
21.1 Intellectual property rights in all artistic and literary work authored by the Seller shall be the property of the Seller. The Customer:
(a) warrants that the Customer has copyright in, or a license to authorise the Seller to reproduce, all artistic and literary work supplied by the Customer to the Seller for the purposes of supplying the Goods, and the Customer hereby expressly authorises the Seller to reproduce all and any of such work for the purposes aforesaid; and
(b) hereby indemnifies and agrees to keep indemnified the Seller against all liability, losses or expenses incurred by the Seller in relation to, or in any way directly or indirectly connected with any breach of copyright or of any right in relation to copyright in such literary or artistic work supplied as aforesaid; and
(c) the Customer is hereby granted a non-exclusive license to use the copyright in any literary and/or artistic work authored by the Seller for the purposes of the supply of the Goods, however the exercise of such license shall be conditional upon the Seller having received all monies due to the Seller under these terms and conditions.
21.2 The Customer warrants that all designs, specifications or instructions given to the Seller will not cause the Seller to infringe any patent, registered design or trademark in the execution of the Customer’s
order and the Customer agrees to indemnify the Seller against any action taken by a third party against the Seller in respect of any such infringement.
21.3 The Customer agrees that the Seller may (at no cost) use for the purposes of marketing or entry into any competition, any Goods which the Seller has created for the Customer.
21.4 The Customer must keep confidential, and not use, any ideas communicated by the Seller to the Customer without the Seller’s written consent.
22. ANCILLARY MATERIALS
22.1 Ancillary materials are those products which come into existence during the preparation or processing of the Customer’s order but which are not the final products and shall be subject to one of the two following options:
(a) drawings, sketches, painting, photographs, designs, typesetting, dummies, models, negatives, positives, blocks, engravings, stencils, dies, plates or cylinders, electros, stereos, discs, tapes, DVD’s, or other media or data and other material produced by the Seller in the course of, or in preparation of, supplying the Goods (whether or not in fact used for the purposes of supplying the Goods) are the property of the Seller. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Seller; or
(b) where agreed between the contracting parties, ownership of any ancillary materials will pass to the Customer upon payment of an agreed fee.
23. DEFAULT AND CONSEQUENCES OF DEFAULT
23.1 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 the Seller’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
23.2 If the Customer owes the Seller any money the Customer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own Customer basis, the Seller’s collection agency costs, and bank dishonour fees).
23.3 Further to any other rights or remedies the Seller may have under this contract, if a Customer has made payment to the Seller, 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 the Seller under clause 22 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this agreement.
23.4 Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Seller becomes overdue, or in the Seller’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 the Seller;
(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.
24.1 Without prejudice to any other remedies the Seller may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions the Seller may suspend or terminate the supply of Goods to the Customer. The Seller will not be liable to the Customer for any loss or damage the Customer suffers because the Seller has exercised its rights under this clause.
24.2 The Seller 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 the Seller shall repay to the Customer any money paid by the Customer for the Goods. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation.
24.3 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 the Seller as a direct result of the cancellation (including, but not limited to, any loss of profits).
24.4 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.
25. DISPUTE RESOLUTION
25.1 All disputes and differences between the Customer and the Seller 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 (including any ammendments or rewrites).
26. PRIVACY ACT 1993 (including any ammendments or rewrites)
26.1 The Customer authorises the Seller or the Seller’s agent to:
(a) access, collect, retain and use any information about the Customer;
(i) (including 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 the Seller from the Customer directly or obtained by the Seller 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.
26.2 Where the Customer is an individual the authorities under clause 26.1 are authorities or consents for the purposes of the Privacy Act 1993.
26.3 The Customer shall have the right to request the Seller for a copy of the information about the Customer retained by the Seller and the right to request the Seller to correct any incorrect information about the Customer held by the Seller.
27. GENERAL LIEN
27.1 Where the Customer has left any Property with the Seller for the supply of the Goods, and the Seller has not received or been tendered the whole of any amounts owing to it by the Customer, the Seller shall have, until all amounts owing to the Seller are paid:
(a) a lien on the Property; and
(b) the right to retain or sell the Property, after providing fourteen (14) days’ notice to the Customer, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
27.2 Where clause 27.1 applies and the Property held by the Seller is subject to copyright in favour of the Customer, the Customer hereby grants the Seller a licence to exercise the rights conferred on the Seller under this clause 27.
27.3 The lien of the Seller shall continue despite the commencement of proceedings, or judgment for any moneys owing to the Seller having been obtained against the Customer.
28. SERVICE OF NOTICES
28.1 Any written notice given under this application & future contracts 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 application;
(c) by sending it by registered post to the address of the other party as stated in this application;
(d) if sent by email to the other party’s last known email address.
28.2 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.
29.1 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,