BrandSpec may in its discretion, without notice, vary the manner of carriage, storage, and the manner of performing its obligations under the quotation and these Terms for a reasonably alternative solution as determined by BrandSpec.
3. Payment
3.1 Payment is due in accordance with the terms set out in the Customer’s account application or if no such terms are stipulated by the 20th day of the month following the date of the issue of the invoice by BrandSpec.
Payment is to be made without deduction or set off in cash, by cheque or direct credit into BrandSpec bank account.
3.2 Where any payment is not made on the due date, then without prejudice to any other rights or remedies available to BrandSpec under these Terms or at law or in equity or otherwise BrandSpec may:
3.2.1 Charge interest, by way of liquidated damages, on all overdue accounts at the rate of 2% per month calculated on a daily basis from the date on which payment was due until payment is made;
3.2.2 Withhold deliveries or cancel undelivered orders or portions of such orders, retain as liquidated damages any monies paid by the Customer and sue the Customer for damages;
3.2.3 Cancel any other order or contract or arrangement between BrandSpec and the Customer or suspend the performances of such order, contract or arrangement pending payment without being liable to the Customer for any losses of any kind that it might suffer.
3.3 The Customer shall upon demand reimburse BrandSpec for all costs (including legal costs on a solicitor/client basis, , service costs and debt collection costs), expenses or other sums incurred by BrandSpec in the recovery of the monies due and/or the goods, which sum shall also carry interest at the rate specified in clause 3.2.1 if unpaid within one calendar month of demand having been made.
3.4 BrandSpec shall be entitled to apply or appropriate any payments to any account of the Customer. Should the Customer have a number of accounts, BrandSpec may combine any accounts and offset any amount between accounts.
3.5 BrandSpec reserves the right to impose a credit limit at any time, which may be altered or withdrawn at BrandSpec discretion with effect from the date that BrandSpec notifies the Customer of such change.
3.6 If at any time it deems the credit of the Customer to be unsatisfactory BrandSpec may require security for payment and may suspend performance of its obligations under the contract until the provision of sufficient security. All costs and expenses of, or incurred by, BrandSpec as a result of such suspension and any recommencement shall be payable by the Customer upon demand.
3.7 BrandSpec may increase its fees as quoted on an annual basis in accordance with the Consumer Price Index (mixed) as published, provided that it shall never decrease its fees and it shall be entitled to increase its fees on an annual basis by a minimum of 5%.
4. Delivery, Logistics, Storage, and Cancellation
Delivery and Logistics
4.1 The time stated for delivery is an estimate only and shall not be of the essence to the contract.
4.2 The Customer will be liable for all costs of marketing placements, collateral, transportation and logistics (including but not limited to carrier collection and drop-off costs) and storage fees as may be applicable to its order at the rates quoted by BrandSpec together with such additional costs as may be charged by any third party service provider (evidence of such costs will be provided on request) as incurred by BrandSpec in respect of its order and such amounts will be payable in accordance with the relevant payment terms in place between the parties.
4.3 Unless BrandSpec on completion of an order has agreed to deliver the goods to the Customer’s premises, delivery obligations shall be limited to making the goods available at BrandSpec premises. Where BrandSpec has agreed to deliver the goods to the Customer’s premises, the Customer shall ensure that the carriers will have reasonable and uninterrupted access to the Customer’s premises to enable the goods to be delivered by the carriers. Where the goods are not collected by the Customer within seven days of notification that the goods are available for collection or, where the goods are to be delivered to the Customer’s premises and access is not provided to the carriers the Customer shall pay BrandSpec upon demand such amount calculated by BrandSpec as will compensate BrandSpec and the carriers for wasted time and expenditure and any storage charges.
4.4 Where BrandSpec has agreed to deliver the goods to the Customer’s premises the Customer will pay for transportation costs unless otherwise agreed between the parties in writing.
4.5 The Terms are for carriage at owner’s risk as defined in the Contract and Commercial Law Act 2017 (“CCLA”) and the parties hereto agree to contract out of Part 5 of the provisions of the CCLA, to the greatest extent permissible as allowed in terms of section 245.
Storage Services
4.6 BrandSpec may, at its’ discretion, move the Customer's goods to and from different storerooms on BrandSpec’s premises or at alternative premises that BrandSpec may lease or utilise from time to time, and BrandSpec may store the Customer's goods at such locations for such periods as BrandSpec requires. Additional charges may apply for any such movements as a result of a breach by the Customer of these Terms.
4.7 The Customer may, at reasonable times during BrandSpec 's business hours and upon at least 48 hours' prior written notice to BrandSpec, inspect the Customer's Goods while they are in the BrandSpec 's possession. The Customer must reimburse BrandSpec on demand for any costs incurred by BrandSpec in relation to the Customer's inspection.
4.8 BrandSpec gives the Customer no warranty or undertakings of any kind in relation to any of the following matters:
(i) the method of stacking, or the height or size of any stacks;
(ii) the use of dunnage in the creation of any stacks;
(iii) the distance of the Customer's goods from any ceilings, walls or doors of the relevant premises; or
(iv) the segregation of the Customer's goods from any other goods; or
(v) the suitability of the storage premises including the safety or security of any of the Customer’s goods while in storage, the customer is liable for any and all losses or damages arising in respect of its goods including but not limited to theft, fire, storm, water damage, pests, or otherwise at the storage premises or during transit, and the Customer must take out all necessary insurances in respect of its goods.
4.9 On termination or expiry of the agreed term of storage or these Terms the storage services will end and the Customer must collect its Goods, at its cost, from the location where the Customer's Goods are stored:
(i) storage fees will be charged until the date of collection
(ii) collection will be on the date agreed between the Customer and BrandSpec;
(ii) if the Customer fails to collect its goods within a reasonable time BrandSpec may deliver the goods to the Customer at the Customer’s expense.
4.10 BrandSpec shall use reasonable efforts to ensure the Customer's Goods are ready for collection on the agreed date for collection, but BrandSpec shall have no liability if, for any reason, if they are not ready.
Cancellation:
4.11 A Customer may cancel an order on 3 (three) calendar month’s written notice to BrandSpec. The Customer will on demand be liable for all fees and costs incurred up to the date of cancellation including any amount which may become payable in terms of clause 2.5.
4.12 BrandSpec may cancel these Terms, suspend or discontinue its services to the Customer at any time on written notice, without any liability to the Customer.
General:
4.13 Where the Customer or any of its employees, agents or appointees enters any of the premises owned or occupied by BrandSpec it will comply with all directive given, such access will be at its own risk, and the Customer will take reasonable steps to ensure the safety of its employees, agents and appointees, their goods and all of the goods and infrastructure situated on such premises, and fully indemnifies BrandSpec on demand for all costs, losses, liabilities and damages suffered by BrandSpec or any other persons as a result of any such failure while on its premises.
5. Risk and Ownership
5.1 Risk and ownership in any Customer goods remains with the Customer and the Customer is obliged to take out all insurances in respect of its Goods including any additional insurances as may be required for storage and logistics. BrandSpec accepts no risk or liability arising as a result of any loss or damages to any Customer goods howsoever arising.
5.2 Where the services of BrandSpec are subject to a common law or statutory lien, that lien will take precedence over the provisions of clause 5.3 which will have no effect.
5.3 BrandSpec will have a first and paramount particular and general lien over the Customer’s goods and all related documentation in its possession from time to time for all due fees and costs, charges, debts or liabilities that may be payable in accordance with these Terms. BrandSpec reserves the right to exercise the lien, at our sole discretion, and may retain possession of your goods until we have received full payment of any due fees and costs that have been incurred up to and including the time of release in accordance with these Terms together with charges, debts and liabilities owing by the Customer to the Company in respect of any other goods or services.
5.4 Should any due fees or costs remain unpaid after 30 days of BrandSpec serving notice requiring immediate payment of the due fees and/or costs, we may, after making reasonable attempts to contact you, sell the goods in our possession in satisfaction of the lien. The balance of proceeds of sale (if any) after the deduction of all fees and/or costs owed to us, including all costs associated with the recovery of the debt (including but not limited to legal fees and debt-collection and service fees) and the sale of the goods, will be accounted for by BrandSpec, and paid to the Customer.
5.5 If you have not collected your goods on the agreed date and have not contacted us within 72 hours of the expiry of the duration of the contract, after making reasonable attempts to contact you, we will consider your goods as abandoned and BrandSpec may in its discretion (i) claim all continuing storage fees and costs of delivery of the goods to the Customer; or may at its discretion after 30 days from the date of the expiry of the agreed period, the Customer consents to us donating such item(s) to a charity of our choice or disposing of the goods at the Customer’s cost.
6. Personal Property Securities Act 1999
6.1 The Customer acknowledges that BrandSpec holds a “security interest” in the goods and any proceeds of the sale of the goods pursuant to Section 17 of the Personal Property Securities Act 1999 (“the PPSA”), in terms of amongst others the lien in clause 5 and that these Terms constitute a security agreement and that BrandSpec may, amongst others, register a financing statement, or a financing change statement on the Personal Property Security Register in respect of the goods and any sale proceeds together with any other goods and any sale proceeds of those goods in accordance with the provisions of the PPSA.
6.2 The Customer shall promptly execute any document and provide any information required from time to time by BrandSpec to enable it to take a protected security interest in the Customer’s goods and their proceeds in priority to all other secured parties, or subject to such other priority ranking creditors as may be applicable.
6.3 The Customer agrees that BrandSpec may take whatever action it thinks appropriate to ensure it has first priority in the Customer’s goods and agrees to indemnify BrandSpec for any costs it incurs in doing this.
6.4 The parties agree that nothing under sections 114 (1) (a) or 133 and 134 of the PPSA shall apply to the Terms.
6.5 The Customer waives its rights, and with BrandSpec’s agreement, contracts out of the Customer’s rights under sections 116, 120(2), 121, 125, 129 and 131 of the PPSA.
6.6 Unless the context otherwise requires, the terms and expressions used under this clause have the meaning given to them in, or by virtue of, the PPSA.
6.5 The Customer indemnifies BrandSpec for any costs BrandSpec incurs in registering or maintaining and/or enforcing or attempting to enforce the security interest created by these Terms. BrandSpec may on request require the Customer to execute any security document and failing which the Customer hereby provides a power of attorney for BrandSpec to execute such security document/s on its behalf in the standard form of those documents as published by the Auckland District Law Society from time to time.
6.6 The Customer waives its rights to receive a verification statement in respect of any financing statement or financing change statement registered by BrandSpec under clause 6.1 (in terms of section 148 of the PPSA).
7. Branded Material
7.1 BrandSpec may from time to time loan marketing and promotional materials accessories and products bearing brands exclusively marketed through BrandSpec to the Customer. The Customer shall use such materials and products only to serve or promote the product associated with that brand. If any such materials or products require replacement or renewal of parts during the time it is in possession of the Customer, then the Customer will pay the costs of the renewed or replaced parts whether or not the need for renewal or replacement arises during the course of normal use and general wear and tear or as a result of misuse by the Customer. BrandSpec may demand return of any such materials and products at any time. The Customer will pay for any materials and products not returned to BrandSpec.
8. Warranties, Indemnities Liabilities, Parties in Trade
8.1 Save for any undertakings conferred in writing by BrandSpec to the Customer in respect of an order, BrandSpec makes no representation and gives no warranties, assurance, condition or warranty of any kind to the Customer (including any assurance, condition or warranty implied by law to the extent that the assurance, condition or warranty can be excluded) in relation to the services provided and accepts no liability for any assurance, condition, warranty, representation, statement or term not expressly set out in these Terms.
8.2 The benefit of any undertakings conferred by BrandSpec on the Customer are personal to the Customer and are not assignable.
8.3 The Customer warrants that it is entering into this contract for trade/business use and it is in trade as is BrandSpec. Accordingly, the parties agree to contract out of the provisions of the Consumer Guarantees Act 1993 and the Fair Trading Act 1986 to the fullest extent possible (including sections 9, 12A, 13 and 14(1)); and the Customer acknowledges and agrees that it is fair and reasonable to do so.
8.4 The Customer releases and indemnifies BrandSpec and our employees, agents, contractors and representatives from and against all and any liabilities, claims, damages, losses, costs and expenses arising out of or in any way connected with the Customers Goods, including but not limited to negligence, and the provision or failure to provide any services by BrandSpec to the Customer.
8.5 These Terms, including any exclusion or limitation of liability, shall apply to and be for the benefit of BrandSpec’s directors, shareholders, employees, agents, contractors, suppliers and representatives to the same extent as they apply to us.
8.6 Without limiting the indemnity and limitation of liability provisions contained in these Terms, if BrandSpec is found to be liable by a Court in connection with any of the services provided or failed to be provided such liability of BrandSpec, howsoever arising, shall never exceed 50% of the fees charged to the Customer over the 12-month period preceding the event giving rise to liability of BrandSpec.
10. Information
10.1 The Customer authorises:
10.1.1 BrandSpec to obtain any information concerning the Customer’s affairs that BrandSpec deems necessary.
10.1.2 Any reputable credit agency and any other person to provide BrandSpec with any information which BrandSpec regards as relevant to the Customer’s credit activities and credit worthiness.
10.1.3 BrandSpec to provide to any credit reporting agency and any other person any information about the Customer’s credit activities and credit worthiness.
10.1.4 BrandSpec to utilise any information provided by the Customer for the purpose of marketing its goods or services.
10.2 To the extent required under the Privacy Act 2020 the Customer is entitled to have access to and to request correction of personal information concerning the Customer which has been collected by BrandSpec.
10.3 If a Customer considers that we have failed to comply with any obligations under the Privacy Act 2020 they should contact us with an email addressed for the attention of the Privacy Contact Officer. The complaint will be acknowledged within 7 days and a decision will be made and advised within 30 days (or a longer period as may be agreed with the individual). If the individual is not satisfied with the decision, they may make a complaint to the Privacy Commissioner. The contact details for the Privacy Commissioner are:
Telephone: 0800 803 909
Website: https://www.privacy.org.nz/
Mail: Office of the Privacy Commissioner
PO Box 10094, Wellington 6143
11. Force Majeure
11.1 BrandSpec shall not be responsible to the Customer for failure to perform any of its obligations due to causes beyond its control including work stoppages, fires, floods, sever weather events, Government imposed restrictions or those imposed by any relevant authority, civil disobedience, riots, theft, rebellions, acts of God and similar occurrences. In such circumstances BrandSpec shall have the right at its discretion to delay the performance of its obligations until such causes cease or to cancel the whole or any part of the contract without incurring any liability to the Customer.
12. Governing Law
12.1 These Terms and Conditions are governed by the laws of New Zealand.
13. General Provisions
13.1 BrandSpec may cede and assign its rights and obligations in accordance with the Terms to any party and no written notice is required to be given to the Customer.
13.2 The Customer agrees to treat with confidence all confidential information, proprietary information, and the Terms as disclosed by BrandSpec to the Customer from time to time. On request the Customer will return and delete all such confidential information and proprietary information.
13.3 The Customer agrees that BrandSpec may use the Customer’s name, logo and any testimonial the Customer provides in BrandSpec’s promotional material and communications including, but not limited to, proposals, presentations, website, and corporate brochure.
13.4 Should any provision of these Terms be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severed from these Terms and shall not affect the validity and enforceability of the remaining provisions.
13.5 In the event of a conflict between any quote or these Terms, the Terms prevail save in respect of any variations to payment terms or additional fees and charges as may be payable in terms of the quotation provided.
13.6 The Customer may at its discretion without notice appoint subcontractors to perform any of the services required and will be entitled to enter into contracts for and on behalf of the Customer.
13.7 The Customer’s goods are their own, not in contravention of any other person’s intellectual property, are not highly flammable, perishable, radio-active, contaminated, objectionable matters or odours, are not of an offensive nature, or illegal and indemnifies BrandSpec from any claims (including fines, charges or penalties) arising herefrom and will on demand pay any increased costs which may be incurred in providing services in respect of the same.
