1. Introduction
2. Ordering
3. Prices
4. Payment Terms
5. Default & Consequences of Default
6. Specifications, Delivery and Installation
7. Risk
8. Title
9. Warranty/Indemnity
10. Termination
11. General
1. Introduction
1.1 These Terms and Conditions of Sale apply to all Goods and Services from time to time provided by your Fully Promoted New Zealand Store ("Fully Promoted") to the purchaser of those goods ("the Buyer"). For the purposes of this document, Fully Promoted means the person or entity which has supplied the Buyer with goods, services and/or credit in accordance with an order placed by the Buyer.
1.2 In the event that other terms and conditions are imported into any contractual documentation between Fully Promoted and the Buyer, then, unless specifically authorised in writing by a director of Fully Promoted, these Terms and Conditions of Sale shall prevail.
1.3 For the purposes of these Terms and Conditions, the term “the Buyer” means and includes any person who has placed an order with Fully Promoted and, in addition and separately, any entity or organisation they represent.
2. Ordering
2.1 Buyers are strongly recommended to place orders in writing. Orders should clearly state the Buyer's particular requirements. Fully Promoted will not be responsible for errors or omissions due to oversight or to misinterpretation of the Buyer's verbal instructions.
2.2 Quotations are only for work according to original specifications. If, through the Buyer's error or omission, work has to be redone or alterations or additions to specifications are required, then Fully Promoted may make an additional charge. In the event that an order is cancelled or suspended by the Buyer, then Fully Promoted may immediately require the Buyer to pay for work done to the date of cancellation or suspension.
2.3 A quotation, unless previously withdrawn, is valid only for 30 days from the date it is given, unless otherwise specifically stated in the quotation form. Following this, a new quotation will be required for any goods or services ordered.
2.4 Fully Promoted reserves the right not to undertake any work which, in its opinion, is or may be unlawful, offensive, or otherwise inappropriate.
2.5 Every endeavour will be made to supply the correct quantity ordered, but quotations are conditional upon a margin of 10% being allowed for overs or unders, these to be charged or deducted on a pro rata basis. Should Fully Promoted be required to match any shade or colour, then a tolerance will be allowed to such extent as shall reasonably achieve a match.
2.6 Where expedited delivery is requested by the Buyer, then an extra charge may be added to the quoted price.
3. Prices
3.1 The prices of goods or services supplied are as shown on Fully Promoted’s quotation, acceptance order, invoice, or other document. Fully Promoted reserves the right to charge for delivery, in addition to the amount shown in the quotation, acceptance of order, or other document.
3.2 Goods and Services Tax and any other tax, duty, or impost necessarily incurred (other than Fully Promoted’s own income tax) in the course of completing the work shall be payable by the Buyer in addition to the quoted price, payable upon demand.
3.3 Quoted prices are based on the cost of materials, labour, and services as at the date of the quotation. Should there be any increase in these costs, as are necessarily incurred by Fully Promoted in completing the order, then such increases may, at Fully Promoted’s sole discretion, be added to the quoted price, payable at the same time, and in the same manner as the balance of the quoted price.
4. Payment Terms
4.1 All accounts are payable by the 20th day of the month following the date of the invoice.
4.2 The Buyer agrees that the terms of trade are strictly settlement on or before the 20th of the month following the month of delivery.
4.3 Progress payments may be required where work is completed over an extended period of time. After work has been in hand for one month or more, a progress payment of up to 75% of the value of the work completed may be requested. Further progress payments, calculated on the same basis, may be required to be paid on a monthly basis until completion of the work.
4.4 Fully Promoted may allocate any payment received from the Buyer against any debt owed by the Buyer, in any manner that Fully Promoted may decide, notwithstanding any purported allegation by the Buyer.
5. Default & Consequences of Default
5.1 Interest on overdue amounts shall accrue daily from the due date until the date of payment at a rate of 1.5% per calendar month (18% per annum), compounding monthly.
5.2 In the event of any dishonoured payment, the Buyer shall reimburse Fully Promoted for any associated bank fees and reasonable administrative costs.
5.3 If the Buyer defaults in payment, they shall be liable for all reasonable costs incurred by Fully Promoted in recovering the debt, including legal fees (on a solicitor and client basis) and external collection agency fees.
5.4 Without limiting any other remedy available, Fully Promoted may suspend or terminate the supply of goods or services if the Buyer breaches any obligation, including payment. Fully Promoted shall not be liable for any resulting loss.
5.5 If any amount remains overdue after thirty (30) days, the Buyer shall be liable for an administrative fee of thirty dollars ($30.00) per month (or part thereof) that the debt remains unpaid. This fee reflects the additional time and resources required to manage overdue accounts and is payable in addition to any interest charged.
5.6 Without prejudice to Fully Promoted’s other remedies at law, Fully Promoted shall be entitled to cancel all or any part of any order of the Buyer which remains unfulfilled, and all amounts owing to Fully Promoted shall, whether or not due for payment, become immediately payable in the event that:
a) any money payable to Fully Promoted becomes overdue, or, in Fully Promoted’s opinion, the Buyer will be unable to meet its payments as they fall due; or
b) the Buyer 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 Buyer or any asset of the Buyer.
6. Specifications, Delivery and Installation
6.1 Fully Promoted will use every reasonable endeavour to deliver every order within the time specified (if any) by the Buyer, but Fully Promoted will not be liable for any loss or damage sustained as a consequence of inability to do so, or any delay.
6.2 On delivery of goods, the Buyer must immediately inspect them to satisfy itself that they meet the order and are in good condition. If at such time the Buyer is not satisfied, then it must immediately notify Fully Promoted in writing. Unless notification is made within 5 working days of delivery, then, irrespective of the nature or extent of the alleged defect or deficiency, Fully Promoted will not be liable in any way in respect of it.
6.3 Unless specifically stated in the body of a quotation, no retentions will be recognised, nor will any other special conditions of contract affect the quotation unless stated.
6.4 If Fully Promoted does not receive forwarding instructions sufficient to enable delivery within 14 days after notification that the goods are ready for despatch, the Buyer will, as from the 15th day, be deemed to have taken delivery of goods, and payment will become due as if delivery had then occurred. In such circumstances, Fully Promoted will only be obliged to store such goods for so long as it is considered reasonably practicable, having regard to available storage space. During such time, goods will be stored solely at the Buyer’s risk, and any costs of storage will be chargeable to the Buyer, in addition to the quoted price.
7. Risk
7.1 Risk in goods will pass to the Buyer immediately upon delivery. Fully Promoted will not be responsible for loss or damage to goods in transit, and the Buyer is required to insure goods against loss or other risks immediately following despatch.
7.2 Where the Buyer supplies plans, specifications, plant, goods, or materials of any kind, these shall be held by Fully Promoted at the Buyer’s risk. Whilst all care will be taken by Fully Promoted, no responsibility is accepted for any damage to materials during such time, and Fully Promoted reserves the right to dispose of materials if they are not collected by the Buyer within one calendar month after the work is completed.
8. Title
8.1 Fully Promoted and Buyer agree that ownership of goods supplied shall not pass until the Buyer has paid Fully Promoted all amounts owing for the particular goods, and Fully Promoted’s other rights and remedies in respect of this security interest are as specified in Clause 11.10 herein.
8.2 Receipt by Fully Promoted 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, and until then Fully Promoted’s ownership or rights in respect of the goods shall continue.
8.3 It is further agreed that:
a) where practicable, the goods shall be kept separate and identifiable until Fully Promoted shall have received payment and all other obligations of the Buyer are met; and
b) until such time as ownership of the goods shall pass from Fully Promoted to the Buyer, Fully Promoted may give notice in writing to the Buyer to return the goods or any of them to Fully Promoted. Upon such notice being given, the rights of the Buyer to obtain ownership or any other interest in the goods shall cease; and
c) the Buyer is only a bailee of the goods, and until such time as Fully Promoted has received payment in full for the goods, then the Buyer shall hold any proceeds from the sale or disposal of the goods, up to and including the amount the Buyer owes to Fully Promoted for the goods, on trust for Fully Promoted; and
d) until such time that ownership in the goods passes to the Buyer, if the goods are converted into other products, the parties agree that Fully Promoted will be the owner of the end products; and
e) where any amount owed between the Buyer and Fully Promoted is overdue, then Fully Promoted may enter any premises at which it believes its goods are located, to seize those goods and dispose of them as Fully Promoted thinks fit and apply such proceeds towards the amount then outstanding to Fully Promoted. The Buyer hereby irrevocably authorises Fully Promoted, and any of its agents or servants, to enter such premises to locate, inspect, and/or seize such goods.
9. Warranty/Indemnity
9.1 Whilst all care and attention is undertaken by Fully Promoted to deliver and/or install goods of the highest quality, and to ensure that all components (including vinyl, inks, media, paints, and other materials) are purchased from reputable manufacturers, Fully Promoted does not guarantee the manufacture of such items. Where any defect or alleged defect is beyond the ability of Fully Promoted to control quality, Fully Promoted has no liability. Any defects due to faulty workmanship must be notified within 7 days after delivery. Any such defects will, at the discretion of Fully Promoted, be repaired or replaced free of charge.
9.2 Other than as provided in Subclause 9.1 hereof, all warranties, representations, or promises howsoever made, whether express or implied by law, are excluded and negated. In particular, where the Buyer acquires, or holds itself out as acquiring, the goods for the purposes of a business, the Consumer Guarantees Act 1993 will not apply.
9.3 Notwithstanding any other provision herein, the total liability of Fully Promoted will at all times be limited to replacing goods or materials or workmanship which is defective, to the value received by Fully Promoted under the relevant contract. No claim for consequential losses or damages of any kind will apply.
9.4 The Buyer will indemnify and hold harmless Fully Promoted against any losses, liabilities, costs, or actions suffered or incurred as a consequence of any third party claiming that work undertaken by Fully Promoted is offensive or illegal, in breach of any intellectual property right, or other right which such third party may have.
10. Termination
10.1 If the Buyer is at any time in default of any of its obligations, covenants, or agreements under these Terms and Conditions of Sale, then Fully Promoted may, by notice in writing to the Buyer, terminate any contract.
10.2 In such event, the Buyer shall be liable to pay for the cost of any work (including preliminary work) undertaken at that time. Such cost shall be payable as a debt due immediately upon demand.
11. General
11.1.1 The law applying to any contract arising between Fully Promoted and the Buyer shall be the law of New Zealand.
11.1.2 In the event that any provision contained in these Terms and Conditions, or in any other collateral agreement or document between Fully Promoted and the Buyer, is deemed illegal or unenforceable, then such provision shall be deemed to be excluded therefrom, but only to the extent required to remedy the illegality or unenforceability, and these Terms and Conditions, and such collateral document, shall in all other respects apply in accordance with their stated terms.
11.2 Assignment
11.2.1 Fully Promoted is entitled at any time to assign to any other party all or any part of a debt which is owing to Fully Promoted.
11.2.2 Fully Promoted may also assign or sub-contract any part of the work which is to be performed under any contract.
11.2.3 In respect of such assignment (in either case), the assignee shall be entitled to the full rights of Fully Promoted previously applying.
11.3 Set-Off
11.3.1 Fully Promoted (or any such assignee) shall be entitled to set off against any monies which may be, or may be alleged to be, owing to the Buyer, the amount of any debt incurred or payable by the Buyer to Fully Promoted, or to such assignee.
11.4 Waiver
11.4.1 All rights, powers, and entitlements of Fully Promoted at law in respect of any contract shall remain in full force, notwithstanding any neglect, forbearance, delay, or waiver by Fully Promoted in enforcing them.
11.4.2 In the event that Fully Promoted waives, or is deemed to have waived, any condition, then unless such waiver is in writing and signed by a director of Fully Promoted, no such waiver shall be accepted. If accepted, such waiver shall apply only to the extent that it is specifically given and shall not be deemed to affect any other dealing or matter between the Buyer and Fully Promoted.
11.5 Authority to Sign
11.5.1 The person signing any quotation on behalf of the Buyer acknowledges that they have authority to bind the Buyer.
11.5.2 In the event that, due to alleged deficiency in such authority, the Buyer is not liable, then the person signing will be personally liable for payment of the debt arising.
11.6 Intellectual Property Rights
11.6.1 Unless it is specifically agreed in writing to the contrary, Fully Promoted owns and retains ownership of all intellectual property rights, including copyright, patents, registered designs, or protection of confidential information in respect of any works undertaken by Fully Promoted for the Buyer.
11.6.2 The Buyer will, at all times, keep Fully Promoted advised of any infringement or potential infringement by a third party of Fully Promoted’s intellectual property rights.
11.6.3 The Buyer will also immediately advise Fully Promoted of any alleged infringement by Fully Promoted of a third party’s intellectual property rights. The Buyer will indemnify and hold harmless Fully Promoted against any losses, costs, actions, or liabilities suffered or incurred as a consequence of such infringement or alleged infringement.
11.7 Right of Variation
11.7.1 Fully Promoted reserves the right at any time to vary these Terms and Conditions of Sale by notification to its customers.
11.8 Disputes
11.8.1 In the event of any dispute arising between Fully Promoted and the Buyer, such dispute shall, in the first instance, be referred to mediation for resolution.
11.8.2 In the event that resolution by such manner is not achieved to the satisfaction of both parties within 30 days of referral to mediation, then either party may take legal action to resolve the dispute.
11.8.3 Nothing in this clause prevents Fully Promoted from taking legal action to enforce payment of any debt due, nor, where required, to seek interlocutory or injunctive relief.
11.9 Privacy Act
11.9.1 In relation to the Privacy Act 2020 the Buyer acknowledges that Fully Promoted 's Privacy Policy found on its website will apply [https://fullypromoted.co.nz/page/privacy-policy], and in addition and in particular:
a) Personal information collected or held by Fully Promoted may be held, used, or disclosed for any of the following purposes: administering (whether directly or indirectly) contracts or enforcing rights under contracts, marketing goods and services from time to time (including through Fully Promoted’s National Office or any other Fully Promoted Centre), ascertaining at any time the Buyer’s creditworthiness, and obtaining credit reports, character references, or credit statements, enabling Fully Promoted to notify any credit agency of any application for credit or default on any obligation of the Buyer to Fully Promoted, and enabling Fully Promoted to provide such personal information to any credit agency, and enabling Fully Promoted to communicate with the Buyer for any purpose.
b) Such personal information (where applicable) is collected by and will be held by Fully Promoted, whose address is specified in the quotation. The Buyer has the right under the Privacy Act to obtain access to, and request correction of, any personal information held by Fully Promoted.
c) The Buyer authorises Fully Promoted at any time to obtain from any other person or agency any information which Fully Promoted requires to process and/or accept any application for credit and to enforce its rights.
d) The Buyer authorises any person to release to Fully Promoted, for the purpose of establishing the Buyer’s creditworthiness, any personal information that person holds concerning the Buyer.
e) If the Buyer fails to provide any information requested by Fully Promoted in respect of any application for credit, such credit and any other commercial benefits may not be provided to the Buyer.
11.10 Personal Property Securities Act (“PPSA”)
11.10.1 In respect of the security interest created by Clause 8.1 herein, and upon assenting to these Terms and Conditions in writing, the Buyer 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 previously supplied by Fully Promoted to the Buyer (if any) and all goods that will be supplied in the future by Fully Promoted to the Buyer.
11.10.2 The Buyer 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 Fully Promoted may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, Fully Promoted 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 a financing change statement or a change demand without the prior written consent of Fully Promoted; and
(d) immediately advise Fully Promoted 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.
11.10.3 Fully Promoted and the Buyer agree that nothing in sections 114(1)(a), 133, and 134 of the PPSA shall apply to these Terms and Conditions.
11.10.4 The Buyer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131, and 132 of the PPSA.
11.10.5 Unless otherwise agreed to in writing by Fully Promoted, the Buyer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
11.10.6 If Fully Promoted at any time does not have priority over all secured parties in relation to any goods, then, pursuant to Section 107(1) of the PPSA, for the purposes of dealing with those goods, the Buyer and Fully Promoted specifically contract out of Sections 108 and 109 of the PPSA, to the extent of replacing the words “a secured party with priority over all other secured parties”, in each case, with “Fully Promoted”.
11.10.7 The Buyer shall unconditionally ratify any actions taken by Fully Promoted under clauses 11.10.1 to 11.10.6.
11.11 Security & Charge
11.11.1 Despite anything to the contrary contained herein, or any other rights which Fully Promoted may have howsoever:
(a) to the extent that the Buyer is the owner of land, chattels, intangibles, or any other asset capable of being charged, the Buyer agrees to mortgage and/or charge all of their joint and/or several interest in the said land, or other asset, to Fully Promoted or Fully Promoted’s nominee to secure all amounts and other monetary obligations payable under these Terms and Conditions. The Buyer acknowledges and agrees that Fully Promoted (or Fully Promoted’s nominee) shall be entitled to lodge, where appropriate, a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met. In respect of any caveat so lodged, the Buyer will have no claim, and, in addition, the Buyer will indemnify and hold harmless Fully Promoted against any cost, loss, claim, or liability it suffers or incurs consequent upon any third party claim related to the caveat.
(b) should Fully Promoted elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Buyer shall indemnify Fully Promoted from and against all Fully Promoted’s costs and disbursements, including legal costs on a solicitor and own client basis.
(c) the Buyer agrees to irrevocably nominate, constitute, and appoint Fully Promoted or Fully Promoted’s nominee as the Buyer’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 11.11.
