WBM LIMITED t/a WITHERS & CO
TERMS AND CONDITIONS FOR SUPPLY OF GOODS AND/OR SERVICES
1. DEFINITIONS AND INTERPRETATION
1.1. In these terms and conditions and in any Contract to which these terms and conditions apply unless the context otherwise requires:
1.1.1. Company means WBM Limited trading as Withers & Co, with company number 5109001, at Christchurch, New Zealand and includes its successors or assigns and all of its subsidiaries, whether partly or wholly owned;
1.1.2. Contract means a contract for the supply of Goods and/or Services by the Company to the Customer, comprised of these Terms and either an Estimate or a Sales Order (as the case may be) accepted by the Customer in accordance with clause 3.2;
1.1.3. Customer means the customer or any person acting on behalf of and with the authority of the Customer, to purchase the Goods and/or Services;
1.1.4. Design Details means all information, data, logos, graphics, artwork and/or text which the Customer requires to be used in relation to the Goods/Services;
1.1.5. Estimate means a written estimate of the costs for the Goods and/or Services provided by the Company to the Customer;
1.1.6. Goods means the product(s) sold or to be sold by the Company under a Contract;
1.1.7. Graphic Proof means a digital mock-up of the product showing branding placement before it is produced and/or manufactured;
1.1.8. International Order means an order for Goods where the Goods are manufactured outside of New Zealand;
1.1.9. Local Order means an order for Goods where the Goods are customised or branded in New Zealand;
1.1.10. Order means either an International Order or a Local Order (as the case may be);
1.1.11. Pre-Production Sample means a physical sample of the product before it is manufactured and/or produced;
1.1.12. Sales Order means a written order for Goods/Services provided by the Company to a Customer;
1.1.13. Services mean the services performed or to be performed (including giving any advice or recommendations, design, liaising with the manufacturer and arranging freight) by the Company under a Contract;
1.1.14. Terms mean these terms and conditions, to be read and construed with each Sales Order or Estimate (as the case may be); and
1.1.15. Working Day means a day which is not a Saturday, Sunday or a Public Holiday on which registered banks are open for general banking business in Christchurch, New Zealand.
1.2. Unless the Company and the Customer otherwise agree in writing these Terms will apply to all sales of Goods and/or Services and no other terms or conditions will apply.
1.3. These Terms supersede any previous terms agreed to by the parties.
2. SUPPLY OF GOODS AND THE PERFORMANCE OF SERVICES
2.1 The Company will:
2.1.1. supply the Goods to the Customer and the Customer will purchase the Goods from the Company; and/or
2.1.2. perform the Services for the Customer and the Customer will request and pay for the performance of the Services,
as described in either an Estimate or a Sales Order (as the case may be), in accordance with these Terms.
2.2. Where the Company provides an Estimate to the Customer the Estimate will be valid for:
2.2.1. 30 days in the case of a Local Order; or
2.2.2. 7 days in the case of an International Order.
3. FORMATION OF CONTRACT
3.1 The Company may provide the Customer with an Estimate. Following receipt of an Estimate by the Customer, the Customer will notify the Company whether it wishes to proceed with an Order and whether any changes are required to the details (e.g. quantity of Goods) in the Estimate, at which point the Company may issue the Customer with a Sales Order.
3.2 By clicking the ‘Approve Order’ button on the Sales Order, by emailing or phoning the Company to confirm an Estimate or the Sales Order, by the delivery of the Goods or by the commencement of the performance of the Services, the Company and the Customer will be deemed to understand and agree that these Terms will bind both parties and will, together with the Estimate and the Sales Order (as the case may be), constitute a Contract. Where a third party or other person accepts an Estimate or the Sales Order (as the case may be) on behalf of a Customer, that third party warrants that he or she is acting on behalf of the Customer and has the necessary authority to bind the Customer to a Contract.
3.3 Without limiting clause 20.5, no other terms and conditions whether oral or written, including, without limitation the Customer’s terms and conditions, whether precedent or subsequent in time will have any force or effect unless specifically agreed to in writing by both parties.
3.4 The Company will use reasonable endeavours to source all Goods and/or Services ordered or quoted in order to fulfil the Contract but reserves the right to substitute Goods of comparable functionality and quality.
4. PRICE AND PAYMENT
4.1. The price of the Goods and/or Services will be the price listed in the Estimate and/or the Sales Order (as applicable) unless otherwise agreed between the parties in writing. The Customer acknowledges that the price indicated in an Estimate may increase or decrease subject to the Customer’s requirements and/or instructions following receipt of the Estimate and prior to receipt of the Sales Order for confirmation (including any change in quantity ordered).
4.2. Unless otherwise agreed between the parties in writing, payment will be made to the Company by the Customer:
4.2.1. by cash, cheque, credit card (credit card fees apply) or direct debit; and
4.2.2. within 7 days following receipt of the invoice,
in full on the due date, without set-off and free of any deductions.
4.3. Unless otherwise specified, all prices in an Estimate and/or the Sales Order are in New Zealand Dollars, excluding GST, design fees and freight (if any).
4.4. If full payment for the Goods or Services is not made on the due date, then without prejudice to any other remedies available:
4.4.1. the Company may cancel or withhold supply of further Goods and/or Services;
4.4.2. the Company may charge interest on monies overdue, accruing on a daily basis and to be calculated at the rate of 15% per annum during such default; and
4.4.3. the Customer will be responsible for all costs incurred by the Company in recovering such monies.
4.5. The Company may from time to time vary a Customer’s credit limit at its discretion, in relation to further purchases of Goods and/or Services. If any purchase would be in excess of the Customer’s credit limit, the Company reserves the right to require, prior to delivery of the Goods or Services, payment in cash of the amount by which the cost exceeds the Customer’s credit limit.
4.6. Before supplying the Customer with Goods or Services, the Company may, in its sole discretion require all or any of the following:
4.6.1. payment in advance;
4.6.2. a guarantee of payment;
4.6.3. a deposit;
4.6.4. progress payment; or
4.6.5. a letter of credit.
4.7. Where a Customer places an International Order, the Customer will be required to pay a 50% deposit in order to confirm the Order. The Company accepts no liability where an Order is delayed or late due to the failure of the Customer to pay the deposit on the due date in accordance with this clause 4.7 or as may be required under clause 4.6.
5. ORDER PROCESS
5.1. As soon as practicable after a Contract has been formed in accordance with clause 3, the Customer will provide the Company with all Design Details required by the Company in order to be able to provide the Goods and perform the Services.
5.2. Once an order is processed the Company will provide the Customer with a Graphic Proof. If required by the Customer (in the case of an International Order) a Pre-Production Sample may be provided where manufacturing and processing time permits, provided that the Customer will be liable for international freight costs.
5.3. Upon written acceptance of a Pre-Production Sample and/or Graphic Proofs, the Order will be final and no further changes may be made by the Customer.
5.4. The Customer agrees and acknowledges that:
5.4.1. the Company will not be able to provide the Goods, commence an Order or perform the Services unless and until the Customer provides the Design Details. The ability of the Company to meet any indicative timelines will be dependent upon, and subject to, the Customer providing Design Details, other information and confirming Graphic Proof or Pre-Production Proof (as the case may be) promptly; and
5.4.2. it will promptly respond, in full, to any queries raised by the Company to avoid any delays with Orders.
6.1. To the fullest extent permitted by law and except to the extent of written warranties given by the Company to the Customer, all warranties and representations including those expressed or implied by law, in respect of Goods and/or Services are excluded.
6.2. Notwithstanding any other provision of these Terms, the Company shall not be liable:
6.2.1. where the Customer has altered or modified the Goods, misapplied the Goods, or has subjected them to any unusual or non-recommended use, cleaning or handling;
6.2.2. for loss caused by any factors beyond the reasonable control of the Company;
6.2.3. for any indirect or consequential loss of any kind or for any loss of profit or opportunity;
6.2.4. for Goods not manufactured by the Company or where the terms of any written warranty have not been complied with, or any manufacturer's handbook provided to the Customer has not been complied with; or
6.2.5. for normal wear and tear.
6.3. Where possible, the Company will use reasonable endeavours to pass on the benefit of the manufacturers’ warranties, in respect of a Customer’s Goods, to the Customer.
7. PERFORMANCE OF THE SERVICES
7.1. In performing the Services, the Company will exercise the degree of skill, care and diligence normally expected of a competent professional.
7.2. The Company will perform the Services as an independent contractor and not as an employee of the Customer. Nothing in these Terms will be deemed to create an employer/employee relationship between the Customer and the Company.
8. INTELLECTUAL PROPERTY AND CONFIDENTIALITY
8.1. All drawings and designs (including the copyright in those drawings and designs) supplied to the Customer by the Company will remain the sole property of the Company and must not be used by the Customer, reproduced or shared with any other person without written consent from the Company.
8.2. Intellectual property rights in any trademarks provided to the Company by the Customer for use in Orders will remain owned by the Customer.
8.3. Where Goods are manufactured, processed, assembled or supplied in accordance with the Customer’s specification, the Customer warrants that the manufacture, processing, use of the Design Details and the assembly and supply of the Goods by the Company will not infringe any intellectual property right, patent, registered design, trademark, copyright or other proprietary rights of any third party and the Customer indemnifies the Company against any liability to or action by a third party for infringement or alleged infringement of any intellectual property right.
8.4. Unless expressly stated otherwise in a written notice from the Customer to the Company:
8.4.1. the Customer agrees that the Company may use the Customer’s name to identify the Customer as a customer of the Company in connection with the promotion of its business, products, the Goods and/or the Services; and
8.4.2. the Customer grants the Company a perpetual, non-exclusive, royalty-free licence to use the Customer’s name and intellectual property to the extent included in pictures of the Goods, in any of the Company’s marketing materials, including on the Company’s website and social media channels.
8.5. All confidential information received by the Company from the Customer shall be used solely for the supply of Goods and/or Services under a Contract.
8.6. The Customer warrants not to use any of the Company’s intellectual property or confidential information other than with the written consent of the Company.
9.1. The Customer may not cancel any Order for Goods or Services or part of it without the Company’s prior written consent.
9.2. The Company may, without incurring liability, cancel a Contract if:
9.2.1. the Customer becomes insolvent or bankrupt, enters into a scheme of arrangement with creditors (other than with the Company’s prior consent) or ceases or threatens to cease to carry on all or a material part of its business, or has a receiver or administrator appointed in respect of any or all of its assets or other steps are taken for its dissolution;
9.2.2. an extraordinary event occurs or a material change affecting the affairs or the financial condition of the Customer occurs, which gives the Company reasonable grounds to conclude that the Customer may not, or maybe unable to, perform or observe its obligations under a Contract; or
9.2.3. the Customer breaches any of these Terms and fails to remedy such breach within five Working Days of receiving written notice of such breach.
9.3. The Customer will be liable for any costs incurred by the Company up to the time of cancellation.
10.1. To the fullest extent permitted by law, the Customer indemnifies the Company against all costs, claims, demands, expenses and liabilities of whatsoever nature, including without prejudice to the generality of the foregoing, damage to property and consequential loss (including loss of profits or intellectual property), which may be made against the Company or which the Company may sustain, pay or incur as a result of or in connection with the supply of Goods and/or Services unless such cost, claim demand, expense or liability shall be directly and solely attributable to the negligence of the Company or the negligence of a duly authorised employee or agent of the Company.
10.2. In the event that the Company is found to be liable under any Contract, the Company’s total liability is limited to (at the Company’s election):
10.2.1. replacing or repairing the defective or damaged Goods; or
10.2.2. refunding the price of the defective or damaged Goods.
11. COMPLIANCE WITH LAWS
11.1. In performing its obligations under a Contract, the parties will each comply with all relevant laws and regulations in force from time to time, including the Health and Safety at Work Act 2015 and the Contract and Commercial law Act 2017.
12. RISK AND DELIVERY
12.1. Unless otherwise agreed to in writing by the parties, risk in the Goods and/or Services will pass from the Company to the Customer when the Goods leave the Company’s address or the manufacturer’s address (as the case may be).
12.2. Unless otherwise agreed, the Company will be responsible for arranging transportation of the Goods and will use reasonable endeavours to ensure that deliveries are made according to schedule, but will not be responsible for delivery delays due to causes beyond the Company’s control and the Customer agrees to accept the delivery as soon as the Goods are able to be delivered.
12.3. The Company accepts no responsibility for insurance of the Goods whilst in transit.
12.4. If a Customer fails to pick up or to accept delivery of the Goods ordered, or requests a delay in delivery, the Customer will pay the Company’s reasonable storage charges until such time as delivery is made.
12.5. The Company reserves the right to make delivery by instalments and each delivery shall be deemed to be a separate Contract which will be invoiced and paid for accordingly.
13. ACCEPTANCE AND DEFECTIVE PRODUCTS
13.1. The Customer is responsible for inspecting the Goods and satisfying itself that the Goods are in accordance with the applicable Contract.
13.2. The Customer may reject any Goods picked up by it or delivered to it that do not comply with the Estimate or the Sales Order (as the case may be), provided that:
13.2.1. notice of rejection is given to the Company within two Working Days of pick up or delivery; and
13.2.2. the Company has been provided reasonable opportunity to inspect the Goods and confirm the defect.
13.3. For defective/rejected Goods which are returned to the Company, the following will apply:
13.3.1. the Goods must be returned to the Company at the sole cost of the Customer within five Working Days of the delivery date; and
13.3.2. the Goods must be returned in the condition in which they were delivered or picked up and with all packaging in as new condition as is reasonably possible in the circumstances.
13.4. The Company may, in its sole discretion, elect to repair (if possible) or replace the defective Goods. Where the Company elects to repair defective Goods, the Company will use reasonable endeavours to repair the Goods, as soon as practical, but will not be liable for any delay in completing the repairs.
13.5. The Company will not be liable for the Goods if clause 6.2 applies and in this event, the Customer will not be entitled to reject the Goods under this clause.
13.6. If the Customer fails to give notice of rejection in accordance with clause 13, it shall be deemed to have accepted the Goods.
13.7. The Customer acknowledges that the Goods are priced based on, and reflective of, their quality. A Customer may not reject Goods under a Contract:
13.7.1. if it considers that the Goods are inferior quality where the price is reflective of the quality of similar Goods; or
13.7.2. for change of mind; or
13.7.3. where the Goods accord with the description of the Goods as provided by the Company.
14.1. Title in the Goods and/or Services will pass to the Customer when full payment of all monies owing to the Company from the Customer has been made.
14.2. Until all monies have been paid:
14.2.1. the Customer will hold the Goods for the Company in a manner which enables them to be identified as Goods owned by the Company, and as agent for the Customer, the Company (and its employees and agents) may, without prior notice, enter any land or premises where the Goods are kept in order to take possession of and/or remove them and the Customer indemnifies the Company against any liability incurred in connection with such entry, taking of possession and removal;
14.2.2. if the Customer sells or uses any Goods, the proceeds of sale or use (in whatever form) will be deemed to be the Company’s property and the Customer will pay all such proceeds to the Company or otherwise deal with such proceeds as directed by the Company, irrespective of any terms of credit between the parties; and
14.2.3. if the Company takes possession of any Goods in accordance with clause 14, the Company may sell or dispose of the Goods in such manner and generally on such terms and conditions as it sees fit.
15. FORCE MAJEURE
15.1. If the Company is prevented from supplying the Goods and/or the Services or performing any other obligation under a Contract as a result of fire, flood, storm, explosion, an act of war, earthquake, theft, tempest, riot, war, vandalism, terrorist action, transport delay, pandemic, epidemic, Government order or restriction, breakdown of plant or machinery (including that of the manufacturer), an act of God, shortage of labour, strike, lockout, or any other cause beyond the reasonable control of the Company (Force Majeure), then the failure or delay in performance will be deemed not to be a breach of the Company’s obligations under the Contract and the Company will not be liable for any damage or loss caused.
15.2. Promptly following the occurrence of a Force Majeure, the Company and the Customer will hold discussions in good faith to agree upon actions to be taken to avoid further failure or delay in the performance of the Contract.
15.3. If no agreement is reached after the Force Majeure, or if the Company is excused from performance of its obligations under a Contract for a continuous period of two months from the date of the occurrence of the Force Majeure, then either party may terminate the Contract by written notice to the other.
15.4. In the event of termination under clause 15.3, the Customer will be liable to pay the Company amounts which the Company has incurred in manufacturing and/or customising the Goods (whether or not invoiced) up to the time of termination.
16.1. If a dispute arises (Dispute) between the parties in relation to the supply of Goods and/or the performance of Services, then the parties will endeavour to settle the Dispute by way of good faith negotiation. If the parties are unable to resolve the Dispute within ten Working
Days, the Dispute may be resolved in accordance with clause 16.2.
16.2. In the event that the Dispute is not resolved by negotiation, the matter may be referred to mediation by any party by written notice. In the event that the matter is referred to mediation, the parties will, within five Working Days of the matter being referred to mediation, agree on a mediator. If a mediator cannot be agreed on between the parties, a mediator will be appointed by the then President of the Arbitrators’ and Mediators’ Institute of New Zealand Inc. (AMINZ). In the event the Dispute is not resolved by a completed mediation within a further 20 Working Days, any party may refer the matter to arbitration by written notice.
16.3. If a Dispute is not settled under clauses 16.1 and 16.2, then either party may submit the Dispute to be settled by arbitration by a sole arbitrator in accordance with the provisions of the Arbitration Act 1996. The arbitrator will be appointed by the then President of AMINZ. The arbitration will be conducted within the provisions of the Arbitration Act 1996. The arbitration will take place in Christchurch, New Zealand unless agreed otherwise between the parties. The parties agree that the decision reached at arbitration will be final and binding on the parties.
16.4. The parties agree that all Disputes will be resolved in accordance with the procedures set out in this clause 16, however, this clause 16 does not prevent any party from seeking urgent interlocutory or declaratory relief from a competent jurisdiction where, in that party’s reasonable opinion, that action is necessary to protect that party’s rights.
17. PERSONAL PROPERTY SECURITIES ACT 1999 (PPSA)
17.1. A Contract constitutes a security interest in all the Customer's present and after-acquired personal property including the Goods supplied by the Company to the Customer for the purposes of the Personal Property Securities Act 1999 as amended or replaced from time to time.
17.2. The Company can register or perfect the security interest recognised under clause 17.1 in any means possible in the jurisdiction of the Customer (and any other jurisdiction the Company deems necessary or desirable) to ensure that the Company has an enforceable security interest against the Customer in the Goods and all amounts due under the Contract, including any future amounts.
17.3. The Customer agrees to promptly execute and deliver to the Company all assignments, transfers and other agreements and documents and do anything else which the Company may deem appropriate to ensure that the Company's security interest is enforceable, perfected and otherwise effective, or give any notification in connection with the security interest to obtain the priority required by the Company and enable the Company to exercise its related rights, or register (and renew the registration for) a financing statement for a security interest in favour of the Company.
17.4. Everything the Customer is required to do or the Company is permitted to do under clause 17.3 above is at the Customer's expense. The Customer agrees to pay or reimburse the Company for any or all of those costs.
17.5. To the extent that Part 9 of the PPSA applies:
17.5.1. the Customer agrees that the provisions of sections 114(1)(a), 120, 122, 133 and 134 of the PPSA which are for the Customers benefit, or any provisions which place any obligations on the Company in the Customer’s favour, shall not apply; and where the Company has rights in addition to those in Part 9 of the PPSA, those rights shall continue to apply; and
17.5.2. without limiting anything in the previous paragraph, the Customer hereby waives its rights under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA, and its rights to receive a copy of a verification statement under section 148 of the PPSA in respect of any
financing statement or financing change statement registered by the Company.
18. CONSUMER GUARANTEES ACT 1993
18.1. Where the Customer:
18.1.1. is a “consumer” (as that term is defined in the CGA) the parties agree that these Terms will be subject to the provisions of the Consumer Guarantees Act 1993; and
18.1.2. is a “business” (as that term is defined in the CGA) the parties agree that the provisions of the Consumer Guarantees Act 1993 will not apply.
19.2. The Company may also collect, hold, use and disclose personal information for the purpose of keeping the Customer up to date with its services (i.e. marketing), any purpose advised to the Customer at the time of collection, or as otherwise permitted under the Privacy Act 1993. Where the Customer provides information relating to any individual, the Customer will ensure it has all relevant consents required for such purposes.
20.1. If any provision of these Terms is held to be invalid, illegal or unenforceable, the party concerned will be deleted or modified to the minimum possible extent necessary and the remainder of the Terms enforceable will remain in force.
20.2. No delay or failure by the Company to exercise its rights under a Contract operates as a waiver of those rights.
20.3. The Customer may not assign or transfer any of its rights or obligations under or in connection with any Contract to any third party without the prior written consent of the Company.
20.4. The Company reserves the right to assign, transfer or sub-contract the performance of any contract or any part of the Contract to any other person.
20.5. The Company may amend these Terms by updating the Terms on the Company’s website. Amendments to these Terms will be effective and binding as between the parties in respect of any Contract formed after the time the Terms are updated on the Company’s website.
20.6. The Customer agrees that the Company may obtain information about the Customer from any source including credit assessment and debt collecting and the Customer consents to any person providing the Company with such information.
20.7. The Customer will pay all costs and expenses (including legal fees) incurred by the Company in exercising any of its rights under any Contract.
20.8. Any notice given by one party to the other will be deemed to have been delivered 48 hours after posting to the recipient's registered office or last known address and immediately if transmitted by email.
20.9. All Contracts made between the Company and the Customer will be governed by and construed in accordance with the laws of New Zealand and the Customer agrees to submit to the exclusive jurisdiction of the New Zealand Courts.
21. PRODUCT DESIGNS AND MOCK-UPS
21.1 As long as the project value warrants it, Withers & Co are happy to provide clients and prospects with Mock-ups free of charge, a mock-up is where their logo is superimposed onto the photo of a product that is held in stock in New Zealand.
21.2 As long as the project value warrants it, Withers & Co are happy to provide clients and prospects with product designs free of charge. Product designs are where Withers & Co contract a 3rd party to design a brand new item, these designs will remain the property of Withers & Co at all times.
21.2.1 If the project should not proceed Withers & Co will charge the cost of the design to the client or prospect at a rate of NZ$150 per hour.