1 Agreement and Price
1.1 Ikon agrees to sell and the Buyer agrees to buy the goods (“Goods”) at the price specified by Ikon on the current price list (“Price”).
1.2 The Buyer agrees that all Prices specified in the price list are plus GST, other taxes and duties which may be applicable and any insurance/freight/handling charges.
1.3 Any additional charges will be at the expense of the Buyer, and Ikon will invoice the Buyer for such additional charges, providing any supporting invoices received in relation to the charges.
2 Payment
2.1 Unless otherwise specified in writing by an authorised officer of Ikon, payment is due on the 20th day of the month following the date of invoice or the first business day after such date. The time of payment within which the Buyer is to pay for the Goods will be an essential term of this Agreement.
2.2 The Buyer may not withhold payment or make any deductions from or set off any amount against any amount owing without Ikon’s prior written consent.
2.3 Ikon may impose a credit limit at its sole discretion, and may alter the credit limit without notice. If the credit limit is exceeded by the Buyer, Ikon may refuse to supply Goods to the Buyer. If Ikon at any time deems the credit of the Buyer to be unsatisfactory it may require security for payment and the Buyer will make such security available.
2.4 The Buyer authorises Ikon to conduct all credit checks and searches of the Buyer, and its financial and business affairs deemed necessary by Ikon. The Buyer will provide all necessary written authorisations for such credit checks and searches as requested from time to time by Ikon.
3 Interest
3.1 If the Buyer fails to pay monies on the due date, Ikon may (at Ikon’s discretion):
(a) charge interest on all overdue accounts at a rate of 2.0% per month calculated on a daily basis until it is received in full by Ikon but without prejudice to all or any of Ikon’s other rights and remedies under this contract. Any payments received by Ikon will be applied firstly against such interest;
(b) seek reimbursement from the Buyer for any legal costs (as between solicitor and client), any debt collection fees and any other costs incurred in the recovery of an overdue debt; and
(c) refuse to supply any further products to the Buyer.
3.2 The parties agree that the Buyer will be responsible for all costs that Ikon incurs in obtaining and maintaining creditor’s insurance for recovery of debt owed by the Buyer. Ikon will invoice the Buyer in accordance with its standard invoicing procedures for all costs incurred in this regard.
4 Delivery
4.1 Ikon will deliver the goods to a single destination. If no delivery region is specified or agreed, delivery will be made by the Buyer uplifting the Goods from Ikon’s premises.
4.2 Delivery will be to the drop off point available where the delivery vehicle may stop on-site and offload, and no personnel contracted by Ikon will be required to further carry and/or transport the Goods to any further location on-site.
4.3 Ikon reserves the right to deliver the Goods by instalment and each instalment will be deemed to be a separate contract subject to the same conditions as the main contract. Ikon will invoice the Buyer separately for installment deliveries at the date of dispatch.
4.4 If any time for delivery is stated in the order such time will be approximate only and will not be deemed to be an essential term of the contract.
4.5 The failure of Ikon to deliver shall not entitle either party to treat these terms as repudiated.
5 Cancellation of orders
5.1 Goods will only be accepted by return to Ikon if:
(a) the Goods are returned within thirty days of the date of invoice; and
(b) the Goods are returned in the condition they were in when dispatched by Ikon to the Buyer, including but not limited to the Goods being in their original packaging; and
(c) Ikon, in its sole discretion, gives its prior written consent to the return of the Goods.
5.2 Ikon may charge the Buyer a restocking fee of 15% of the Price upon any return of Goods.
6 Risk and ownership
6.1 The Buyer will take responsibility from the moment of delivery of the Goods and will carry the full risk of liability with no recourse to Ikon.
6.2 Ikon retains ownership of all Goods until the Buyer:
(a) has paid the full Price for the Goods and all other monies owing by the Buyer to Ikon; or
(b) pursuant to these terms resells the Goods.
6.3 The Buyer will ensure that all Goods are stored separately in a way, which will clearly identify Ikon’s Goods as the property of Ikon.
6.4 The Buyer acknowledges that it is in possession of the Goods solely as bailee for Ikon, until full payment for all Goods has been made. The Buyer will hold the proceeds of sale of all Goods that have not yet been paid for on trust for Ikon.
6.5 The Buyer agrees that Ikon, its agents and servants (without the need to give notice) may enter the premises where the Buyer is or may be storing the Goods for the purpose of Ikon inspecting and/or removing such Goods.
6.6 If any of the Goods are damaged or destroyed prior to property in them passing to the Buyer, Ikon is entitled without prejudice to any of its other rights or remedies under these terms and conditions (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable under these terms and conditions. The production of these terms and conditions by Ikon is sufficient evidence of Ikon’s rights to receive the insurance proceeds without the need for any person dealing with Ikon to make further enquiries.
7 Personal Property Securities Act 1999 interest
7.1 Notwithstanding clause 6, the parties acknowledge that the Buyer grants Ikon a security interest over all the Goods delivered to the Buyer, and the proceeds thereof.
7.2 The Buyer agrees to:
(a) protect Ikon’s retention of title provisions as provided in clause 6 of these Terms of Trade;
(b) if required by Ikon, co-operate in good faith with Ikon to execute the documentation required to register a security interest in favour of Ikon on the Personal Property Securities Register and protect Ikon’s interest in the Goods supplied, and the proceeds thereof; and
(c) the parties hereby contract out of part 9 of the PPSA so that the rights and obligations contained in Sections 114, 125, 129, 132, 133 and 134 of that part do not apply between the parties and the buyer waives any right to receive a copy of the verification statement, pursuant to s148 of the Personal Property Securities Act 1999
8 Intellectual Property Rights and Confidentiality
8.1 All copyright, patent, design registrations, trade marks associated with the Goods or products and other intellectual property rights subsisting in or used in connection with the Goods or products or any improvements to the Goods or products by the Buyer are and will remain the sole property of Ikon or its licensor (“Intellectual Property Rights”).
8.2 The Buyer agrees to use any material or information provided by Ikon solely to sell the Goods and products and will refrain from using such materials or information for any other purpose. The Buyer will not make copies of any materials or information provided to it by Ikon.
8.3 The Buyer may not remove any trade marks, copyright symbols, or any other statement or device which asserts Ikon’s intellectual property rights (or that of its licensor) the Goods and products or any other materials, information or packaging.
8.4 In the event that the Buyer or any customer makes an improvement to the Goods or Product, such improvement will be the property of Ikon and the Buyer will take all reasonable steps to notify Ikon of the improvement and will assign its interest in that improvement to Ikon.
(a) all knowledge or information of a confidential nature relating to these terms and conditions, including but not limited to the Goods and products and other information about the Goods and products , including any pricing data, the Intellectual Property Rights, the businesses, transactions and financial arrangements of the parties (“Confidential Information”) disclosed by one Party to the other during the course of this Contract, shall be kept strictly confidential by the recipient party and the recipient Party shall not, without the prior written consent of the disclosing Party, disclose any of the Confidential Information to any third party or use any of the Confidential Information otherwise than in accordance with the terms of this Contract, save that any Party may disclose any such Confidential Information to those of its employees or Related Companies as may reasonably be required for the exercise of the Party’s rights and obligations under this Contract, providing that such employees or Related Companies are made aware and subject to the same or similar confidentiality obligations of this clause.
(b) Each Party’s obligations in this clause shall not apply in respect of any Confidential Information which:
(c) Is made public other than by breach or default by the Party in question of any obligation owed to the disclosing Party; or
(d) The Party can show the information was lawfully obtained by it or its employees or Related Companies from a third party otherwise than following a breach of on obligation of confidentiality owed by the disclosing Party; or
(e) Is required to be disclosed by any law or directive of any relevant authority or in connection with legal proceedings or in response to a request from any governmental authority or department.
9 Display Stands
9.1 Any Display stands and associated equipment (“Equipment”) supplied by Ikon shall at all times remain the property of Ikon and be returnable on demand by Ikon. In the event that the Equipment is not returned to Ikon in the condition in which it was delivered, Ikon retains the right to charge the price of repair or replacement of the Equipment.
9.2 The Buyer acknowledges that the Equipment is to only be utilised for the display of Goods and products provided by Ikon or any of Ikon’s associated companies.
9.3 The Buyer shall:
(a) Keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to lien over the Equipment and the Buyer accepts full responsibility for the safekeeping of the Equipment and indemnifies Ikon for all loss theft or damage to the Equipment howsoever caused and without limiting the generality of the foregoing whether or not such loss theft or damage is attributable to any negligence failure or omission of the Buyer;
(b) Not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment; and
(c) comply with all occupational health and safety laws relating to the Equipment and its operation;
(d) The Buyer acknowledges and agrees that it loans the Equipment at its own risk and the Buyer is responsible for theft or damage to the Equipment in its possession.
10 Repair and replacement
10.1 Ikon warrants that the Goods are of merchantable quality. If the Goods are found to be defective Ikon will at its discretion, elect whether to repair, replace or provide a refund for any such Goods.
10.2 Notwithstanding clause 8.1, Ikon will not be responsible for any Goods damaged in transit that are not brought to Ikon’s attention within 2 days of delivery.
11 Exclusion of Consumer Guarantees Act 1993 and any statutory or common law implied terms
11.1 If the Buyer acquires the Goods for a business purpose the Buyer agrees that the statutory guarantees and implied terms, covenants and conditions contained in the Consumer Guarantees Act 1993 are excluded and do not apply.
11.1 The Buyer will indemnify and hold harmless Ikon from any liability arising from the Buyer on-selling the Goods for a business purpose where the Buyer fails to exclude the application of the Consumer Guarantees Act to such transaction.
12. Limitation or exclusion of liability
12.1 Ikon will be under no liability whatsoever to the Buyer for any loss of profit, indirect, special, incidental, consequential or exemplary damages or losses suffered by the Buyer resulting from any pre-contractual misrepresentation or other dispute arising out of these terms and whether actionable in contract, tort (including negligence), equity or otherwise.
12.2 In the event that Ikon is found liable, Ikon’s liability will not exceed the value of the Goods.
12.3 Nothing in these terms of trade is intended to have the effect of contracting out of the Consumer Guarantees Act 1993 except to the extent permitted by that Act.
13. Indemnity
13.1 The Buyer indemnifies Ikon against any legal proceedings and any costs involved, where through any acts or omissions of the Buyer in using any of the Goods provided by Ikon, Ikon becomes liable.
14. Force majeure
14.1 Ikon will not be liable for delay or failure in the performance of any of the obligations imposed by this contract, if such failure is occasioned beyond the reasonable control and without the fault or negligence of Ikon PROVIDED THAT this clause will not extend to excuse the consequences of insolvency or financial difficulty.
15. Terms and Conditions
15.1 No alteration or variation of this contract will be binding upon Ikon unless accepted in writing by Ikon’s authorised officer.
15.2 The buyer accepts that Ikon may amend these terms and conditions and at all times will be bound by the terms and conditions.
16. Termination
16.1 If the Buyer fails to pay monies, commits any act of bankruptcy, or being a company does any act, which would render it liable to be wound up or has a receiver appointed over its property, Ikon may (without prejudice to any other remedies available to it) suspend or terminate this contract and the proportion of the Price owing, calculated according to the Goods supplied, will immediately fall due and payable.
17. Dispute resolution
17.1 In the event of any dispute between the parties in relation to these terms and conditions the parties will first seek to resolve such dispute by promptly giving notice to the other party and in good faith endeavoring to resolve the dispute. If the dispute remains unresolved the parties will first seek a resolution through the use of mediation or other informal method of resolution before pursuing arbitration or resolution through the Courts.
18. Notices
18.1 Every notice given under the terms of this contract will be sufficiently given if delivered personally, posted or faxed to the intended recipient at his/her or its last known address or facsimile number.
19. Individual liability and Guarantees
19.1 Where the Buyer comprises more than one person carrying on business in partnership, each and every individual partner will be jointly and severally liable to Ikon in respect of all or any indebtedness or liability of the Buyer arising out of this contract.
19.2 Where the Buyer is a limited liability company or other corporation, each of the directors thereof will, upon demand, and in writing interpose and bind themselves as sureties and co-principal debtors with the Buyer, jointly and severally, for the due and principal payment of all monies and performance of all obligations due by the Buyer arising out of this contract.
20. Miscellaneous
20.1 Assignability: The Buyer will not assign or otherwise transfer or encumber its rights or obligations under this contract except with the prior written consent of Ikon.
20.2 Entire agreement: This contract, together with the Credit Application Form constitutes the sole understanding of the parties and supersedes all prior understandings, written or oral, which will be of no further force or effect.
20.3 Applicable law: This contract will be deemed to be made in New Zealand and will be construed and governed by the laws of New Zealand.
20.4 Waiver: No waiver of any provision of this contract will serve as a waiver of any other provision of this contract and Ikon will not have waived or deemed to have waived any provision of this contract unless such waiver is in writing and executed by Ikon.
20.5 Counterparts: This contract may be executed in counterparts (which may be facsimile copies) and all of which, when taken together constitute the one document.