Read our terms & conditions – Updated November 2022
SHARDLOWS PACKAGING LTD – TERMS & CONDITIONS OF TRADE
1.1. If applicable, capitalised terms have the meaning given to them in this
Agreement. In addition, the following definitions apply in this Agreement:
1.2. ‘Supplier,’ ‘we’, or ‘us’ means Shardlows Packaging Limited trading as
Shardlows Packaging Ltd (our successors and assigns) or any person
acting with the authority of Shardlows Packaging Limited.
1.3. ‘Client,’ ‘you’, or ‘your’ means the Client purchasing Services from us or
any person acting on your behalf (including authorised agents).
1.4. ‘Services’ means all Services (including any packaging for bags and
closures, cartons, boxes, boards, cleaning or hygiene products, food
services and cafeteria supplies, gifts, health and safety products, office
products, promotional products and tapes or any protective packaging,
corrugated rolls, paper rolls, polythene, stretch wrap and surface
protection), or any advice or recommendations, brand development,
integration of strategies, analysis or media sourcing) provided by us at
your request from time to time (and where the context permits, the terms
‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.5. ‘Goods’ means, without limitation, any packaging material requested
(including paper, cardboard boxes, boards, plastic, polythene, strapping
and twine, surface protection film or any synthetic or recycled material).
1.6. ‘Price’ means the Price of the Services (in accordance with clause 6).
1.7. ‘Agreement’ means these terms & conditions of trade, as may be
purchases or schedules as applicable).
1.8. ‘Amounts Owing’ means any amount you owe to us, from time to time,
including the Price, any interest payable, any of your liability under this
Agreement and any enforcement expenses incurred by us in seeking
payment of any Amounts Owing by you.
1.9. ‘Business Day’ means Monday to Friday, excluding public holidays in
1.10.‘Confidential Information’ means all information that could be reasonably
regarded in the circumstances as confidential, including information that
relates to the business, interests or affairs of a party, this Agreement, the
Goods or Services (as applicable), and intellectual property rights, but
excludes information which is:
(a)in the public domain, other than as a result of a breach of this
(b)in possession of a party before the commencement of this Agreement
without any obligation of confidentiality; and
(c)is independently developed or acquired by a party before the
commencement of this Agreement without relying on information that
would itself be Confidential Information.
1.11.‘Event of Default’ means failing to comply with this Agreement (including
your obligations in clause 6).
1.12.‘Insolvency Event’ means an event of insolvency, including bankruptcy;
the appointment of an insolvency administrator, manager, receiver or
liquidator; any action related to winding up or making a material
arrangement in relation to creditors; applying for any type of protection
against creditors; being unable to pay your debts as they fall due; or
taking or suffering any similar or analogous action in any jurisdiction as a
consequence of debt.
1.13.‘Prohibited Content’ means any content on any packaging that:
(a)is, or could reasonably be considered to be in breach of the
Broadcasting Act 1989, the CGA, the FTA or any other applicable law
or applicable industry code of practice;
(b)contains, or could reasonably be considered to have any
misrepresentations or is, or could be deemed to be misleading,
deceptive, likely to mislead, deceive or is otherwise unlawful; or
(c)is in breach of any person’s intellectual property rights.
1.14.‘Periodicals’ means a scheduled release of content agreed upon
between both parties.
1.15.‘Personnel’ means directors, officers, employees, agents and
1.16.‘FTA’ means the Fair Trading Act 1986.
1.17.‘CGA’ means the Consumer Guarantees Act 1993.
1.18.‘CCLA’ means the Contract and Commercial Law Act 2017.
1.19.‘PPSA’ means the Personal Property Securities Act 1999.
1.20.‘Security Agreement’ and ‘Security Interest’ have the meanings given to
them in Part 2, sections 16 and 17 of the PPSA.
1.21.‘Regulator’ means any authority, commission, government department,
court, tribunal, or similar having regulatory or supervisory authority over
the parties or Services.
1.22.‘Related Company’ has the meaning given to it in Part 1, section 2(3) of
the Companies Act 1993.
2.1. In this Agreement, unless the context otherwise requires:
(a)headings are for convenience only and do not affect interpretation;
(b)a reference to legislation includes all regulations, orders, instruments,
codes, guidelines or determinations issued under that legislation or
any modification, consolidation, amendment, re-enactment,
replacement or codification of it;
(c)a reference to ‘in writing’ includes by email;
(d)the words ‘include’ or ‘including’ or similar expressions are to be
construed without limitation;
(e)a reference to a party shall include that party’s successors, permitted
assigns and substitutes; and
(f) a word importing the singular includes the plural and vice versa.
3.1. All orders are subject to our acceptance. We may (at our sole discretion)
accept any order in whole or part by issuing an invoice in respect of the
applicable Services, delivering the Goods or Services or otherwise
confirming the order in writing. All orders must be accompanied by the
necessary ordering information, including model numbers, item numbers
or any other relevant information.
3.2. You acknowledge and accept that:
(a)the supply of Goods on credit shall not take effect until you have
completed a credit application with us and it has been approved with a
credit limit established for the account;
(b)if the supply of Goods requested exceeds your credit limit or the
account exceeds the payment terms, we reserve the right to refuse
(c)where necessary, this Agreement will be modified or amended to the
extent required to comply with any applicable legislation; and
(d)this Agreement shall supersede any other document or agreement
between both parties.
3.3. If you place an order for or accept any Services from us, you are taken to
accept this Agreement and are bound jointly and severally (including if
you are part of a trust, in which case you shall be bound in your capacity
as a trustee). You do not need to sign any formal documentation to
indicate your acceptance. It will be assumed from you continuing to order
any Goods or Services.
3.4. Your acceptance to this Agreement shall continue to all future orders,
purchases or schedules (as applicable), and this Agreement will be, or is
deemed to be incorporated into, and form part of, each order, purchase
or schedule as if this Agreement was set out or implied therein in full.
3.5. Both parties shall accept electronic signatures (including acceptance by
a receiving mail server) provided both parties have complied with
sections in Part 4, subpart 3 and all other relevant sections in Part 4 of
4. AUTHORISED AGENTS
4.1. We are under no obligation to enquire as to the authority of any person
placing an order on your behalf.
4.2. If you introduce any third party to us as your authorised agent, you agree
that agent shall have your full authority to order any Services on your
behalf, and such authority shall continue until the Services have been
completed or you notify us in writing that the third party is no longer your
4.3. Where your authorised agent is to have only limited authority to act on
your behalf, you must explain the parameters of the limited authority to
us in writing.
5. CHANGES TO DETAILS
5.1. You agree that you will give us (addressed to the financial controller or
equivalent) not less than fourteen (14) days prior written notice of any
proposed change to your name or any other changes to your details
|(including changes to the ownership of the company, address, email,|
contact phone or business structure).
5.2. You acknowledge and accept that if you fail to comply with clause 5.1,
you will breach this Agreement and shall be liable for any expense or
loss of profit suffered by us (including any Related Company).
|6. PRICE AND PAYMENT|
6.1. You will pay us the Price set out in any quotation or documentation that
we provide to you under this Agreement, plus any ‘Goods and Services
Tax’ (as defined and imposed in Part 2, section 8(1) of the Goods and
Services Tax Act 1985 (GST)).
6.2. Unless otherwise agreed by us in writing, the Price shall be:
(a)indicated on invoices provided to you in respect of the Services; or
(b)the Price at the date of delivery of the Services according to our
current price list; or
(c)our quoted Price, which will be binding, subject to your acceptance of
our quotation in writing within thirty (30) days.
6.3. If the Price is not set out in quotations or other documentation, the Price
for the relevant Goods or Services will be at our standard rate according
to our current Pricelist or at a rate notified to you.
6.4. The Price will be payable by you on the date(s) determined by us (at our
sole discretion), which may be:
(a)on or before delivery of the Services;
(b)by way of instalments or progress payments in accordance with our
payment schedule, which may be: (i) for any packaging Services, a
fifty percent (50%) deposit shall be due (of the project value) upon
acceptance of the quotation; (ii) we may request progress payments of
twenty percent (20%) of the Estimated total at regular intervals where
the Services are provided over a month or more extended period; and
(iii) any outstanding balance for the Services will become due upon
(c)due twenty (20) days following the end of the month in which a
statement or invoice is sent to your address or address for notices; or
(d)seven (7) days following the date of any invoice given to you by us if
there is no notice to the contrary.
6.5. We may amend any Estimate before the order has been completed to
allow for any increase (or decrease) in the cost of performing the
Services, and we shall notify you of any such amendment as soon as
possible. Upon giving you notice, the Estimate will be adjusted to reflect
the increased Price.
6.6. At our sole discretion, we may allocate any payment from you towards
any invoice that we determine and may do so at the time of receipt or at
any time afterwards. On any default by you, we may re-allocate any
payments previously received and allocated. In the absence of any
payment allocation by us, payment will be deemed to be allocated in a
manner that preserves the maximum value of our Security Interests in
6.7. We reserve the right at any time to alter any Price lists. Any alterations to
any Price list will be effective from the date specified by us and apply to
all orders or purchases we accept on or after that date.
6.8. Payment may be made by cash, electronic/online banking, or any other
method we agree to in writing.
6.9. Payment in any form other than cash shall not be taken to be payment
for the Amounts Owing, and all ownership rights of the Goods or
Services remain with us until that form of payment has been cleared and
received (in accordance with clause 19.1).
6.10.We may require that you pay a deposit of fifty percent (50%) or provide
a guarantee as security for paying any Amounts Owing.
6.11.You shall not withhold payment of any Amounts Owing because part of
the Services are disputed, and if part of the Services is disputed, you
agree that you will:
(a)perform all of your obligations to us under this Agreement and pay in
full any Amounts Owing except for the amount that is in dispute; and
(b)provide a specific and detailed explanation of the dispute in writing
within seven (7) days from delivery.
6.12.If an Insolvency Event occurs, all Amounts Owing will (whether or not
due for payment) immediately become due and payable.
7.1. We reserve the right to vary the Price:
|(a)if a variation to the plan of scheduled Services or specifications is|
requested (including additional work required due to hidden or
unidentifiable difficulties not evident before the commencement of the
(b)any information supplied by you is inaccurate; or
(c)as a result of increases beyond our reasonable control in the cost of
Goods or labour (including any variation resulting from fluctuations in
currency exchange rates, increases in the cost of taxes, insurance
charges or increases in third-party costs).
7.2. You agree that we may charge additional costs for:
(a)any preliminary work performed at your request;
(b)any other work required as a result of you changing the original
(c)any Services requiring urgent completion (including any overtime
(d)handling or storing material or product you supply for the Services;
(e)changes or correcting any artwork, documents or computer files to
ensure that the Goods are adequately produced; or
(f) any freight costs and charges.
7.3. Variations will be charged on the basis of our quotation and will be
detailed in writing and shown as variations on the invoice. You shall be
required to respond to any variation submitted by us within seven (7)
days, and failure to do so will entitle us to add the cost of the variation to
7.4. The Price will be adjusted to reflect any extra cost or expense incurred
by us because of any instruction received from you (or your authorised
agents) or any action or inaction on your part.
7.5. Where you request us to Estimate the quantity of the Goods to be
supplied from sketches, plans, schedules, specifications or otherwise,
you agree to pay for any variation between the Estimate and the actual
quantities provided, and this Agreement shall be deemed to be adjusted
accordingly to reflect the increased Price.
|8. REIMBURSABLE EXPENSES|
8.1. We shall be reimbursed for all expenses reasonably and appropriately
incurred in connection with the provision of the Services, except where
such expenses are expressly stated in the quotation or in writing as
being non-reimbursable. All reimbursable expenses (including travel,
accommodation, communications, or couriers) will be charged at the cost
(including GST) to you, plus an administration fee that reflects the time
involved with performing such Services.
|9. PROVISION OF SERVICES|
9.1. At our sole discretion, delivery shall take place when:
(a)we provide the Goods or Services at our address; or
(b)we deliver the Goods or Services to your nominated address (and all
risk immediately passes to you on delivery (by us or our nominated
carrier), and you must insure the Goods on or before delivery).
9.2. The Services are provided based on specifications, information and
instructions provided by you (whether written or verbal). You
acknowledge that it is your responsibility to ensure that such instructions
are detailed sufficiently to satisfy our requirements of interpretation and
understanding. Once accepted by you, our quotation shall be deemed to
interpret those specifications, information and instructions correctly. We
shall not accept any liability for the supply of Services contrary to your
intention or errors or omissions in the Services due to insufficient or
inadequate provision of detailed specifications, information or
instructions by you (including misinterpretation). We may charge you
additional costs incurred in remedying the Services (and, if reasonably
practical, notify you of such costs before they are incurred).
9.3. You further agree that:
(a)whilst we will make every endeavour to produce the exact number of
items in the order, the number of items produced may be ten percent
(10%) over or under the number specified in the order (which is due to
the type of Goods and manufacturing tolerances); and
(b)where a discrepancy occurs, we will adjust the amount charged for the
order to reflect the actual number of items produced.
9.4. Whilst we shall make every endeavour to enable the Services to be
provided at the time and place as was arranged between both parties
(subject to our regular service hours on Business Days), you
|acknowledge that any time specified for provision of the Services is an|
estimate only. We will not be liable for any expenses or losses incurred
due to your reliance on our estimated time for delivery, nor can you
cancel any order for any delay in delivery that is less than fourteen (14)
days after our estimated time for delivery, or any delay in delivery due to
any event beyond our control.
9.5. We may deliver the Goods in separate instalments, which will be
invoiced and paid as individual transactions under this Agreement.
|10. SUPPLIED CONTENT FOR PACKAGING|
10.1.If you fail to provide specific instructions regarding style, type or layout:
(a)we may use any style, type or design that (in our opinion) is
(b)we may charge a variation (in accordance with clause 7) for any
additional work required (including the production of additional proofs).
10.2.You warrant that all content or Goods supplied to us to be used for the
(a)be true and correct;
(b)not contain Prohibited Content;
(c)be non-political and non-religious by nature and suitable for viewers of
(d)not contain anything that is defamatory of any person or is indecent or
(e)not infringe copyright, trademark or any other legal rights of another
person or entity (including the name or images of any person without
(f) not contain anything which may give rise to any cause of action by a
third party against us (including material that may cause damage or
injury to any person or entity);
(g)not be false or misleading and is confirmed in substance and fact;
(h)not contain nor constitute a statement that is misleading or deceptive
or likely to deceive or to mislead or which is otherwise in breach of a
provision of the FTA, the CGA or any other applicable legislation; and
(i) be in the form and delivered to us by the date agreed to by both
parties. If you fail to adhere to this sub-clause, we shall not be liable in
the event we are unable to provide the Services at the time and
location as agreed.
10.3.You shall provide us with data in the following formats:
(a)for text, files shall be in an electronic format as standard text (.txt),
Pages (.pages) or Word (docx) document on a USB or via email; and
(b)for images in an electronic format as advised by us on a USB or via
email with pictures of suitable quality for the intended use and without
any subsequent image processing being required (and we shall not be
responsible for the quality of images scanned from printed Goods).
10.4.Where you supply us with plans, specifications or other technical
information (such as electronic software that provides detailed and
specific technical information), you shall be responsible for providing
accurate data. We shall be entitled to rely on the accuracy of any plans,
specifications or other technical information supplied by you.
10.5.We are not responsible for any errors in the Goods or Services or for
additional expenses caused by you supplying inaccurate plans,
specifications or other technical information.
11. ERRORS AND OMISSIONS
|11.1.You agree that we have no liability regarding any errors or omissions:|
(a)resulting from any inadvertent mistake made in the formation or
administration of this Agreement; or
(b)contained in any documentation supplied to you regarding the
11.2.If such an error or omission occurs that is not attributable to our
negligence or wilful misconduct, all obligations or rights under or in
connection with this Agreement shall continue in full force and effect.
|12. DEFECTIVE SERVICES|
12.1.Any alleged fault, defect, shortage in quantity, errors, omissions or
failure to comply with the description or quote of the Services which you
detect must be reported to us as soon as possible. You shall allow us to
inspect the Services within a reasonable time following such notification
if you believe the Services are defective. If you fail to comply with clause
12.1, the Services shall be presumed free from any defect or damage.
12.2.For defective Services, which we have agreed in writing that you are
entitled to reject, our liability is limited to either (at our sole discretion)
rectifying the Services or re-providing the Services (provided that you
have complied with clause 6).
13. RETURNS AND WARRANTY
13.1.Return of the Goods will only be accepted (at our sole discretion)
(a)the Goods are returned to us within seven (7) days of the delivery
(b)we have agreed in writing to accept the return of the Goods;
(c)the Goods are returned in the condition in which they were received
(including all packaging material, brochures and any instructions in as
new condition as is reasonably possible);
(d)we will not accept the return of Goods that have not been stored or
used correctly; and
(e)the return of any Goods for credit may incur a restocking fee of twenty
percent (20%) of the value of the Goods (and any additional freight
costs we incur).
13.2.For Goods not manufactured by us, the warranty shall be the current
warranty provided by the manufacturer of the Goods, and we shall not be
bound by any condition, representation or warranty other than that which
the manufacturer of the Goods offers.
14. PRIVACY ACT 2020
14.1.You authorise us and our agents to collect, use, retain and disclose
‘personal information’ (as defined in Part 1, section 7 of the Privacy Act
2020) about you and your Personnel that you or they provide to us for
the following purposes:
(a)exercising our rights or performing our obligations under this
(b)using the services of credit reporting and debt collection agencies,
and you consent to us disclosing personal information (including any
information about an Event of Default or repayment history) to a credit
reporter, who may hold that information and use it to provide its credit
(c)registering any Security Interest under this Agreement;
(d)direct marketing purposes (including by email and other electronic
means), unless you notify us that you do not wish to receive direct
marketing from us; and
(e)the use or transfer of personal information to a Related Company in
connection with the performance of our obligations or exercise of our
rights under this Agreement.
14.2.Clause 14.1 is authority and consent from you in accordance with
sections in Part 3 and all other relevant sections in the Privacy Act 2020.
14.3.You (if you are an individual) have the right under information privacy
principles 6 and 7, and sections in Part 4, subpart 1 and Part 4, subpart 2
of the Privacy Act 2020 to access and request correction of any of your
personal information held by us, and if you provide any personal
information about a third party (including your Personnel) to us, you
confirm that you are authorised to do so by the relevant individual, and
you have informed the relevant individual that they have the right to
contact us to access and, if applicable, request correction of any
personal information that we hold about them.
14.4.If the Services are expected to involve the sharing of any data sets, or
other personal information, to you by us or us to you, we will enter into a
separate data protection agreement with you.
14.5.If you do not provide the personal information requested, we may not be
able to perform our obligations under this Agreement.
15. CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY
15.1.Each party must keep confidential all Confidential Information, however,
nothing in clause 15 prevents a party from disclosing Confidential
(a)in the circumstances expressly provided for in this Agreement;
(b)if the disclosure is required by law or Regulator (but only to the extent
(c)if the disclosure is reasonably required to enable a party to perform its
obligations or enforce its rights under this Agreement.
15.2.We may disclose Confidential Information to a Related Company and
their Personnel on a ‘need to know’ basis, provided that person is under
a duty to keep the Confidential Information confidential in accordance
with this Agreement.
15.3.We own all right, title and interest (including all intellectual property
rights) in the Goods or Services at all times.
15.4.Any new intellectual property created as a result of, or in connection
with, the provision of our Goods or Services will be owned by us (unless
otherwise agreed in writing).
15.5.If, notwithstanding clauses 15.3 and 15.4, any intellectual property rights
in any of our Goods or Services vests in you, you assign those
intellectual property rights to us with effect from creation and agree to do
all things reasonably required by us to give effect to such assignment.
15.6.You warrant that the use by us of any designs, instructions, plans,
specifications or other technical information provided by you will not
infringe the intellectual property rights of any other person and indemnify
us against any expenses or losses (including full legal costs on a solicitor
client-basis) that we may incur or suffer in the event of any such
16. CONSUMER GUARANTEES ACT 1993 & FAIR TRADING ACT 1986
16.1.Subject to clause 16.2, nothing in this Agreement will affect any rights
you may have as a ‘consumer’ (as defined under the CGA).
16.2.For the purposes of section 2 and Part 5, section 43(2) of the CGA, the
parties acknowledge and agree that, if you are acquiring, or hold yourself
out as acquiring, the Goods or Services in trade:
(a)to the extent permitted by law, you are contracting out of the CGA (to
the extent that the CGA would otherwise apply to any matters covered
by this Agreement); and
(b)it is fair and reasonable for the parties to be bound by clause 16.2.
16.3.If you are acquiring the Goods or Services to resupply the Goods or
Services in trade, you undertake that you will:
(a)contract out of the CGA to the maximum extent permitted by law in
your contracts with your clients; and
(b)procure that your clients and each person in the distribution chain
thereafter contract out of the CGA to the maximum extent permitted by
law in their contracts with clients.
16.4.For the purposes of section 5D of the FTA, the parties acknowledge and
agree that, if you are acquiring, or hold yourself out as acquiring, the
Goods or Services in trade:
(a)to the extent permitted by law, you are contracting out of sections 9,
12A and 13 of the FTA; and
(b)it is fair and reasonable for the parties to be bound by clause 16.4.
16.5.You will indemnify us against any expenses or losses incurred by us due
to your breach of clause 16.
17.1.We may cancel any Services provided under this Agreement before the
Services are delivered by giving you written notice. On giving you notice,
we shall refund any amounts you have paid, and we shall not be liable
for any loss or damage arising from such cancellation. If you cancel the
delivery of the Services, you shall be responsible for any loss incurred by
us (including, without limitation, any loss of profits) up to the time of
17.2.If this Agreement relates to more than one issue of a periodical, you
(a)if periodicals are published weekly or more frequently, you have given
four (4) weeks’ notice of intention to terminate the Agreement;
(b)if periodicals are published fortnightly or more frequently (but less
frequently than weekly), you have given six (6) weeks’ notice of
intention to terminate the Agreement;
(c)if periodicals are published less frequently than fortnightly, you have
given eight (8) weeks’ notice of intention to terminate the Agreement;
(d)that notwithstanding clause 17.2, we may terminate any order at any
time if you breach any provision of this Agreement regarding payment.
17.3.We shall be entitled to cancel all or part of any order of yours which
remains unperformed, and all Amounts Owing to us shall (whether or not
due) become immediately payable if:
(a)any Amounts Owing to us becomes overdue, or in our opinion, you will
be unable to meet your payments as they fall due; or
(b)an Insolvency Event occurs, and you become insolvent or bankrupt,
convene a meeting with your creditors or a liquidator or similar person
is appointed in respect of you or any of your assets.
17.4.Orders made to your specifications or non-stock-list items cannot be
cancelled once production has commenced.
18. EVENT OF DEFAULT
18.1.Unless waived by us in writing, we may charge interest at a rate of two
and a half percent (2.5%) per calendar month on any outstanding
Amounts Owing from the due date of payment until the date the
outstanding amount is paid (and interest shall compound monthly at such
18.2.You agree to reimburse us for any fees or expenses we incur in
recovering any Amounts Owing (including, without limitation,
administration fees, debt collection agency fees, disbursements and full
legal costs on a solicitor-client basis).
18.3.You are hereby granted a non-exclusive licence to use the copyright in
any literary or artistic works we authored for the Services. However, the
exercise of such licence shall be conditional to us receiving all Amounts
Owed under this Agreement.
18.4.Should you fail to pay any account, we may withhold the release of any
producer statement or documentation relating to the Services provided
until all Amounts Owing are paid in full.
19. RETENTION OF TITLE
19.1.Ownership (including all right, title and interest) of the Goods and
Services remains with us until:
(a)we have received all Amounts Owing; and
(b)you have performed all of your obligations under this Agreement.
19.2.Unless both parties agree otherwise, any drawings, sketches, paintings,
photographs, designs, typesetting, dummies, models, negatives,
positives, blocks, engravings, stencils, dies, plates or cylinders, electros,
stereos, discs, compact discs, tapes, other media, data and all other
material we produce in the course of preparation or performing the
Services (whether or not used when performing the Services) are at all
times our property.
19.3.If any Amounts Owing is overdue, or an Insolvency Event occurs, you
give irrevocable authority to us to use reasonable force to enter
anywhere Goods may be stored, to remove any Goods. We shall not be
liable in contract, tort or otherwise for any damages, expenses, or losses
incurred by you or any third party, and you indemnify us against any
liability we may have to any third party (including full legal costs on a
solicitor-client basis), as a result of us exercising our rights under clause
19.2 (except where damages, costs or losses are due to our negligence
19.4.If you resell or use any Goods before ownership of the Goods has
passed to you (including combining or processing the Goods), the
proceeds of such sale or use will be received and held by you (in
whatever form) in trust for us to the extent of the Amounts Owing (where
our interest as beneficiary under that trust will be that portion of the
proceeds which is equivalent to the Amounts Owing to us and the
balance of the proceeds (if any) will be your beneficial interest under that
19.5.It is further agreed that:
(a)where possible, the Goods shall be kept separate and identifiable until
we have received full payment and you have fulfilled all of your
obligations under this Agreement; and
(b)until ownership of the Goods passes to you, we may give notice in
writing to return the Goods (or any accessories or components), and
your rights to obtain ownership or any other interest in the Goods shall
19.6.If any Goods are damaged where full payment has not been received,
you agree that we are entitled to:
(a)receive all insurance proceeds paid for the Goods; and
(b)deal directly with the insurance company to receive all insurance
proceeds paid for the Goods we own (in accordance with clause 19.1).
19.7.We may commence proceedings to recover the Price of the Services
provided, notwithstanding that ownership of the Goods or Services has
not passed to you.
20. SECURITY AND LIEN
20.1.Subject to us providing any Goods or Services, you charge all of your
right, title and interest (whether joint or several) in any land, real estate or
other assets capable of being legally charged with a lien owned by you
either now or in the future, to secure the performance of all obligations
(including full payment of all Amounts Owing) under this Agreement.
20.2.You irrevocably appoint all directors of our companies (including any
Related Company) as your true and lawful attorney(s) and agree that the
appointed attorney(s) may perform all necessary acts to enforce our
rights provided in clause 20.1 of this Agreement (including signing any
document on your behalf).
20.3.You are liable for all our disbursements and expenses (including full
legal expenses on a solicitor-client basis) incurred in exercising our rights
under clause 20 to secure the performance of your obligations under this
20.4.In accordance with Part 5, subpart 5 of the CCLA, we hold a lien for
work done and may sell at public auction any property that has been left
by you for Services if any Amounts Owing are outstanding.
20.5.It is fair and reasonable for the parties to be bound by clause 20.
21. PERSONAL PROPERTY SECURITIES ACT 1999
21.1.You acknowledge and agree that:
(a)this Agreement constitutes, in favour of us, a Security Agreement
creating a Security Interest in the Goods or Services or the proceeds
of such Goods or Services; and
(b)the Security Interest granted to us secures the payment of all Amounts
Owing (all present and after-acquired personal property) you may owe
us from time to time and at any time.
21.2.You agree that you will sign any further documentation and provide any
information which we may reasonably require to ensure we are paid all
Amounts Owing due to us and otherwise to protect our interests under
this Agreement, including by registration of a financing statement and
ensuring that we have a first ranking perfected Security Interest in the
Goods or Services, or a Security Interest in the proceeds of any Goods
or Services (a Security Interest taken in all collateral and any proceeds of
21.3.To the extent permitted by law, we each contract out of:
(a)sections 114(1)(a), 133 and 134 of the PPSA; and
(b)your rights referred to in sections 107(2)(a), (c), (d), (e), (f), (g), (h)
and (i) of the PPSA.
21.4.You waive your right to receive a verification statement under section
148 of the PPSA regarding any financing statement relating to a Security
21.5.Nothing in this Agreement is to be construed as an agreement that a
Security Interest in the Goods (collateral) attaches at a later time than
the time specified in Part 3, section 40(1) of the PPSA; a Security
Interest is perfected in accordance with Part 3, section 41(1) of the
PPSA; a Security Interest in all after-acquired property attaches at the
time specified in Part 4, section 44(1) of the PPSA; and a Security
Interest in collateral shall extend to the proceeds as specified in Part 4,
section 45(1) of the PPSA.
21.6.Each Security Interest is a continuing Security, notwithstanding any
intermediate payments, settlement of accounts or anything else.
21.7.You must provide us with information and any associated documentation
reasonably requested by us from time to time relating to your financial
21.8.If at any time we consider that your financial status is unsatisfactory, we
may require you to grant additional Security Interest(s) as security for the
Amounts Owing, and we may suspend or cancel further supply of Goods
or Services until you have provided such Security Interest(s).
21.9.You shall unconditionally ratify any actions taken by us under clause 21.
22. INSURANCE AND RISK
22.1.Where we are to supply Services, we shall maintain an insurance policy
for the Services until completion, at which point all risk shall immediately
pass to you.
22.2.Unless otherwise instructed, you agree that we may communicate with
you via electronic means (including by email and attached files), and you
accept this form of communication may be subject to inherent hazards
such as delays, errors or loss of data. We shall not be held liable for any
loss, corruption, or deletion of files or data (including the unintended
introduction of viruses) resulting from our Services. It is your sole
responsibility to back up any data you believe to be important, valuable,
or irreplaceable prior to us providing the Services.
22.3.Whilst every care is taken by us to carry out your instructions, it is your
responsibility to undertake final proofreading and revision of the
proposed Services (including any packaging design). We shall not be
liable for any errors not corrected by you in the final proofreading and
22.4.Any changes and comments resulting from proofreading and revision
undertaken by you shall be provided in one (1) complete brief and not
multiple email notifications. Any extended modifications outside this
scope shall be charged at our hourly rate.
22.5.We reserve the right not to undertake any Services, refuse to accept any
content supplied by you, or withdraw any advertisement or publication for
any reason (including where in our opinion, is or may be unlawful,
offensive, contains Prohibited Content or is otherwise inappropriate). We
shall not be liable to you for any such action.
22.6.You agree that, due to the nature of digital displays, technical difficulties
may arise which could prevent the provision of the Services, and you
agree to indemnify us against any costs or losses incurred by you as a
22.7.You accept that we are only responsible for Goods or Services that are
provided or replaced by us, and we do not accept any responsibility for
previous Services carried out by any third party or for any loss or
damage to the Goods or Services that are caused by any other third
party after the completion of the Services.
22.8.Should you request us to leave Goods outside our premises for
collection or deliver the Goods to an unattended location, you agree that
those Goods shall be left at your sole risk.
23. HEALTH AND SAFETY AT WORK ACT 2015
23.1.Each party will comply with the Health and Safety at Work Act 2015
(HSW Act), including all health and safety duties specified in Part 2 of the
HSW Act and all other applicable standards and codes of practice
relating to health and safety. In addition, each party will comply with the
other party’s pre-notified and reasonable health and safety policies when
on the party’s premises.
23.2.You must notify us of any known hazards arising from your premises to
which any person may be exposed, as well as notify us of any notifiable
injury, illness, incident or event (as defined in Part 1, subpart 3 of the
HSW Act) to ensure that your workplace is without risks to the health and
safety of any person.
23.3.Each party must consult, cooperate and coordinate activities with all
other persons who have a health and safety duty in relation to the same
matter in providing the Goods or Services (including in connection with
the delivery of the Goods or Services).
24. CLIENT’S RESPONSIBILITIES
24.1.In addition to any other obligations expressed in this Agreement, you
(a)provide all content (including data, logos, designs or graphics and
related materials) within five (5) days of being requested by us
(including any information, ideas or suggestions which are to be
expressly considered by us in developing the Services); and
(b)ensure that the content supplied does not contain Prohibited Content,
a link to any website that contains Prohibited Content, or any viruses,
trojan horses, worms, time bombs, cancelbots or any other software
program designed for or capable of interfering with our software.
24.2.If you are responsible for supplying materials or products:
(a)you must supply sufficient quantities of materials to allow for spoilage
(and such quantities are to be specified by us);
(b)ownership in any materials you supply that are incorporated into the
Goods passes to us at the time of incorporation (in accordance with
25. NOMINATED CONSULTANTS
25.1.We may (if we consider it appropriate to do so) recommend the
engagement of third-party consultants, whom you shall engage at your
expense. We do not warrant the accuracy or quality of the consultant’s
work, that the consultants’ recommendations are appropriate or
adequate, fit for their purpose, or that they are not given negligently. You
accept that you shall not make any demand on us or commence any
legal proceedings against us, and we shall have no liability to you in
relation to any Services performed by the consultants.
25.2.If we have to obtain Goods (including typefaces, bromides, film, plates,
ornaments, artwork or services) not normally stocked or supplied by a
third party to carry out your instructions:
(a)we are authorised to acquire such Goods and Services as your agent;
(b)we will not be liable for any breach of this Agreement if that breach is
a result of or is connected with the supply by the third party.
26.1.We accept no liability for any defect, error or omission in any Services
you approve. We will not be responsible for any costs or losses incurred
by you because of any error in the Services after the proofreading and
revision stage (including offering no refund or credit).
26.2.None of our agents or representatives is authorised to make any
representations, statements, conditions or agreements not expressed by
our manager in writing, nor are we bound by any such unauthorised
26.3.To the extent permitted by law, we shall have no liability whatsoever to
you for any direct or indirect expense or loss of profit suffered by you
arising out of a breach by us of this Agreement (including any
unintentional misrepresentation made to you by us regarding any of the
Goods or Services).
26.4.To the extent permitted by law, our total liability under or in connection
with this Agreement and the Goods or Services is limited to, at our
(a)in the case of Goods, any one or more of the following: (i) the
replacement of the Good(s) or the supply of equivalent Good(s); (ii)
the repair of the Good(s); (iii) the payment of the expense of replacing
the Good(s) or of acquiring equivalent Good(s); or (iv) the payment of
the expense of having the Good(s) repaired; or
(b)in the case of Services: (i) supplying the Services again; or (ii) the
payment of the expense of having the Services supplied again.
26.5.To the extent permitted by law, our liability shall not exceed the Price of
the Services provided by us under this Agreement.
26.6.If, notwithstanding clause 25, we have any liability under or in
connection with this Agreement, to the maximum extent permitted by law:
(a)our total aggregate liability to you for any loss, damage or liability
arising out of or in connection with this Agreement will be limited to the
lesser of: (i) the Price paid by you to us for the applicable Goods or
Services; or (ii) the actual loss or damage suffered by you; and
(b)we will not be liable for any: (i) indirect, special or consequential loss
or damage whatsoever; or (ii) loss of profits, revenue, data, goodwill,
customers, opportunities or loss of or damage to reputation.
26.7.The limitations and exclusions on liability in this clause 26 will apply
irrespective of the legal basis for the applicable claim, including contract,
equity, tort or statute, except negligence and fraud.
26.8.In no circumstances will we have any liability whatsoever under or in
connection with this Agreement:
(a)for the acts or omissions of any third party;
(b)any act or omissions performance in accordance with your instructions
(or instructions from your authorised agents); or
(c)to any third party.
27.1.Governing law: This Agreement is governed by and to be construed in
accordance with the laws of New Zealand, and each party submits to the
exclusive jurisdiction of the courts of New Zealand.
27.2.Entire Agreement: This Agreement constitutes the entire agreement of
the parties about its subject matter and supersedes all previous
agreements, representations and understandings.
27.3.Priority: To the extent of an inconsistency between:
(b)all other schedules to this Agreement;
(c)any privacy or data agreement (if applicable); and
(d)the order of priority set out above will apply (with (a) having the
27.4.Subcontracting: We may subcontract the performance of our obligations
(including to a Related Company) on the basis that we remain solely
liable to you for the performance of our obligations.
27.5.Assignment: You must not assign, novate or transfer your rights or
obligations under this Agreement without our prior written consent (which
may be withheld at our sole discretion). We may assign this Agreement
to any other person. Without limiting the foregoing, we may assign to any
other person all or part of the Amounts Owing by you.
27.6.Amendments: Except where stated otherwise in this Agreement, any
amendment to this Agreement must be in writing, signed by both parties,
except where we are required to make changes to ensure compliance
with applicable laws, in which case we can give you notice of any such
amendments required, and you will be bound by the same.
27.7.Notices: Any notice, demand or other communication to be served on a
party must be in writing and sent by personal delivery, pre-paid post or
email to the address of the relevant party (or otherwise notified to the
other party from time to time). Any notice or other communication is
deemed to be received (i) if personally delivered, on receipt, (ii) if posted
by pre-paid official postal service, on the fifth Business Day after posting
(or seven Business Days after posting if sent from one country to
another), and (iii) if sent by email on the date and time that the email was
sent (as evidenced in the sender’s email sent history). Notices received
after 5pm on a Business Day will be deemed received on the next
27.8.Force majeure: We will not be liable to you for any failure or delay in
performing our obligations under this Agreement where such failure or
delay is caused by events or circumstances beyond our reasonable
control (including any strike, lockout, labour dispute, delay in transit,
embargo, epidemic, pandemic, accident, emergency, order of
government or other authority or act of god).
27.9.Severability: If any part of this Agreement is illegal or unenforceable, you
agree that part shall be amended to the extent permitted by law to allow
the enforceability of any rights, and if it is not able to be amended, then it
will be severed, and all remaining rights in this Agreement will continue in
full force and effect.
27.10.Waiver: A single or partial exercise or waiver of a right relating to this
Agreement does not prevent any other exercise of that right or the
exercise of any other right.
27.11.Termination: Either party may terminate this Agreement immediately by
written notice if the other party breaches a term of this Agreement which
is not capable of remedy or, where the breach is capable of remedy, fails
to remedy the breach within 20 Business Days of written notice of the
27.12.Survival: Any rights or obligations under or in connection with this
Agreement, which is by nature a continuing obligation, will survive
termination of this Agreement by either party.
27.13.Rights of third parties: This Agreement is not intended to confer a
benefit on any person other than the parties to this Agreement.
27.14.Relationship: We will provide Goods or Services to you as an
independent contractor. Nothing in this Agreement creates any
partnership, joint venture or employment relationship between the
27.15.Non-exclusive: This Agreement is not exclusive, and you agree that
there are no restrictions on us to provide any Goods or Services to any
27.16.Counterparts: This Agreement may be executed in any number of
counterparts (including by electronic signature or by email exchange of
pdf copies), which will constitute the one instrument.