1.1 “Seller” means Distinctive Promotions Ltd, its successors and
assigns or any person acting on behalf of and with the
authority of Distinctive Promotions Print Ltd.
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 or Services supplied by the Seller to the
Customer at the Customer’s request from time to time (where the
context so permits the terms ‘Goods’ or ‘Services’ shall be
interchangeable for the other).
1.4 “Price” means the Price payable for the Goods as agreed between
the Seller and the Customer in accordance with clause 5 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 with the
Seller’s consent in writing and shall prevail to the extent of any
inconsistency with any other document or agreement between the
Customer and the Seller.
2.3 Once accepted by the Customer, the Seller’s written quotation
shall be deemed to interpret correctly the Customer’s instructions,
whether written or verbal. Where verbal instructions only are
received from the Customer, the Seller shall not be responsible for
errors or omissions due to oversight or misinterpretation of those
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. Change in Control
4.1 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.
5. Price and Payment
5.1 At the Seller’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by the Seller to the
(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 5.2) which will be
valid for the period stated in the quotation or otherwise for a
period of thirty (30) days.
5.2 The Seller reserves the right to change the Price if a variation to
the Seller’s quotation is requested. Any variation from the plan of
scheduled Services or specifications (including, but not limited to,
any variation as a result of additional Services required due to
unforeseen circumstances such as availability of specialised
papers, prerequisite work by any third party not being completed
or as a result of any increase to the Seller in the cost of materials
and labour) will be charged for on the basis of the Seller’s
quotation and will be shown as variations on the invoice. Payment
for all variations must be made in full at their time of completion.
5.3 When style, type or layout is left to the Seller’s judgement and
then the Customer makes further alterations to the copy this will
be invoiced as an extra.
5.4 At the Seller’s sole discretion a non-refundable deposit may be
5.5 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) for certain approved Customers, due twenty (20) days
following the end of the month in which a statement is posted
to the Customer’s address or address for notices;
(c) the date specified on any invoice or other form as being the
date for payment; or
(d) failing any notice to the contrary, the date which is thirty (30)
days following the date of any invoice given to the Customer
by the Seller.
5.6 Payment may be made by cash, cheque, bank
cheque, electronic/on-line banking, or by any other method as
agreed to between the Customer and the Seller.
Unless otherwise stated the Price does not include GST.
5.7 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.
6. Delivery of Goods
6.1 Delivery (“Delivery”) of the Goods is taken to occur at the time
that 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.
6.2 At the Seller’s sole discretion the cost of delivery is in addition to
6.3 The Customer must take delivery by receipt or collection of the
Goods whenever they are tendered for delivery. In the event that
the Customer is unable to take delivery of the Goods as arranged
then the Seller shall be entitled to charge a reasonable fee for
redelivery and/or storage.
6.4 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.
6.5 The Customer shall take delivery of the Goods tendered
notwithstanding that the quantity so delivered shall be either
greater or lesser than the quantity purchased provided that:
(a) such discrepancy in quantity shall not exceed two percent
(b) the Price shall be adjusted pro rata to the discrepancy.
6.6 Any time or date given by the Seller to the Customer is an
estimate only. The Customer must still accept delivery of the
Goods even if late and the Seller will not be liable for any loss or
damage incurred by the Customer as a result of the delivery being
7.1 Risk of damage to or loss of the Goods passes to the Customer on
completion and the Customer must insure the Goods on or before
and the Goods are dispatched at the request of the Customer.
7.2 If any of the Goods are damaged or destroyed following delivery
but prior to ownership passing to the Customer, the Seller is
entitled to receive all insurance proceeds payable for the Goods.
The production of these terms and conditions by the Seller is
sufficient evidence of the Seller’s rights to receive the insurance
proceeds without the need for any person dealing with the Seller
to make further enquiries.
7.3 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.
7.4 The Seller shall be under no liability whatever to the Customer for
any variation (beyond the reasonable control of the Seller) in
colours between the approved prototype and the finished Goods.
7.5 When quotations are based on specifications, roughs, layouts,
samples or dummies or printed, typewritten or other good copy,
any extra work or cost caused by any variation by the Customer of
his original instructions or by the manuscript copy being, in the
Seller’s opinion, poorly prepared or by the Customer’s
requirements being different from those originally submitted or
described, then the cost of such variations may be charged to the
Customer and shown as extras on the invoice.
7.6 All work carried out whether experimentally or otherwise at the
Customer’s request will be charged to the Customer.
7.7 Any tabulated work and/or foreign language included in the job but
not contained in the manuscript originally submitted for the
purpose of estimating may be charged to the Customer and shown
as extras on the invoice.
7.8 Unless otherwise agreed, the Customer shall bear the cost of
fonts, or colour proofs, or artwork, specially bought at its request
for the work.
7.9 Where the performance of any contract with the Customer
requires the Seller to obtain Goods or Services from a third party,
the contract between the Seller and the Customer shall
incorporate and shall be subject to the conditions of supply of such
Goods and Services to the Seller, and the Customer shall be liable
for the cost in full including the Seller’s margin of such Goods or
7.10 Whilst every care is taken by the Seller to carry out the instructions
of the Customer, it is the Customer’s responsibility to undertake a
final proof reading of the Goods. The Seller shall be under no
liability whatever for any errors not corrected by the Customer in
the final proof reading. Should the Customer’s alterations require
additional proofs this shall be invoiced as an extra.
7.11 Goods printed or made to special order, Customer specification or
non-catalogue items are under no circumstances acceptable for
credit or return. Cancellation of orders for printed or special or
non-catalogue items will definitely not be accepted, once these
orders are in production.
7.12 The Seller is under no obligation to provide samples of Goods
ordered other than by virtual (computerised) sample. Whilst every
effort will be taken by the Seller to match virtual colours with
physical colours, the Seller will take no responsibility for any
variation between virtual sale samples and either the virtual sale
sample displayed on the Customer’s computer and/or the final
product. Should a physical sample be required this will be
provided on request by the Customer and will be charged for as an
extra including return freight, the charge will be contra against final
7.13 While every effort will be taken by the Seller to print colours PMS
and CYMK), the Seller reserves the right to judge defectiveness at
the Seller’s discretion based on industry standards.
7.14 The Seller shall not be held liable for inks wearing off through
general wear and tear.
7.15 Where the Customer supplies materials, 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. An additional charge may be made by the
Seller in respect of any such counting or checking requested by
7.16 In the case of property and materials left with the Seller without
specific instructions, the Seller shall be free to dispose of them at
the end of twelve (12) months after receiving them and to accept
and retain any proceeds gained from such disposal to cover the
Seller’s costs in holding and handling such items.
7.17 Where materials or equipment are supplied by the Customer for
the provision of Services the Seller shall accept no liability for
imperfect work caused by defects in, or the unsuitability of, such
materials or equipment for the work.
7.18 Any change or correction to any film, bromides, artwork and/or any
printing surface supplied by the Customer which is deemed
necessary by the Seller to ensure correctly finished work shall be
invoiced as an extra.
8.1 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
(b) the Customer has met all of its other obligations to the Seller.
8.2 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.
8.3 It is further agreed that:
(a) until ownership of the Goods passes to the Customer in
accordance with clause 8.1 that the Customer is only a bailee
of the Goods and must return the Goods to the Seller on
(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
(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.
9. Personal Property Securities Act 1999 (“PPSA”)
9.1 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
9.2 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.
9.3 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.
9.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
9.5 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.
9.6 The Customer shall unconditionally ratify any actions taken by the Seller under clauses 9.1 to 9.5.
10.Security and Charge
10.1 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).
10.2 The Customer indemnifies the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Seller’s rights under this clause.
10.3 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 10 including, but not limited to, signing any document on the Customer’s behalf.
11.1 The Customer hereby disclaims any right to rescind, or cancel anycontract 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.
12.1 The Customer shall inspect the Goods on delivery and shall within ten (10) 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.
12.2 Claims regarding Goods are required to be made on the Seller’s complaint form within twenty (20) days of the invoice date.
13.1 Returns will only be accepted provided that:
(a)the Customer has complied with the provisions of clause 12.1; and
(b)the Seller has agreed in writing to accept the return of the Goods; and
(c)the Goods are returned at the Customer’s cost within twenty (20) days of the delivery date; and
(d)the Seller will not be liable for Goods which have not been stored or used in a proper manner; and
(e)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.
13.2 The Seller may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of thirty dollars ($30) plus any freight.
14.1 Subject to the conditions of warranty set out in clause 14.2 the Seller warrants that if any defect in any workmanship of the Seller becomes apparent and is reported to the Seller within thirty (30) days of the date of delivery (time being of the essence) then the Seller will either (at the Seller’s sole discretion) replace or remedy the workmanship.
14.2 The conditions applicable to the warranty given by clause 14.1 are:
(a)the warranty shall not cover any defect or damage which maybe caused or partly caused by or arise through:
(i) failure on the part of the Customer to properly maintain any Goods; or
(ii) failure on the part of the Customer to follow any instructions or guidelines provided by the Seller; or
(iii) any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v)fair wear and tear, any accident or act of God.
(b)the warranty shall cease and the Seller shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Seller’s consent.
(c)in respect of all claims the Seller shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.
14.3 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.
15.Consumer Guarantees Act 1993
15.1 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.
16.1 Where the Seller has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of the Seller.
16.2 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.
16.3 The Customer agrees that the Seller may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which the Seller has created for the Customer.
17.Default and Consequences of Default
17.1 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.
17.2 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 client basis, the Seller’s collection agency costs, and bank dishonour fees).
17.3 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 this clause 17 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.
17.4 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.
17.5 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 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 Customer or any asset of the Customer.
18.1 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.
18.2 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).
18.3 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.
19.Privacy Act 1993
19.1 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.
19.2 Where the Customer is an individual the authorities under clause 19.1 are authorities or consents for the purposes of the Privacy Act 1993.
19.3 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.
20.1 The failure by the Seller to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Seller’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, prejudiced or impaired.
20.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subjectto the jurisdiction of Auckland, New Zealand. 20.3 The Seller shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Seller of these terms and conditions (alternatively the Seller’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
20.4 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.
20.5 The Seller may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
20.6 The Customer agrees that the Seller may amend these terms and conditions at any time. If the Seller makes a change to these terms and conditions, then that change will take effect from the date on which the Seller notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for the Seller to provide Goods to the Customer.
20.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
20.8 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.