1.1 Application of these Terms and Conditions
These Terms and Conditions are incorporated into any contract between Ligare Limited (“Ligare”) and a customer for the supply of goods and/or services by Ligare to the customer.
In these Terms and Conditions:
"Business Day" means a day on which banks are open for general banking business in New Zealand;
"Estimate" means the estimate referred to in sub-clause 2.1(b) (as amended in accordance with clause 2.4);
"Goods" means the final goods produced by Ligare by completing the Order;
"GST" means A New Tax System (Goods and Services Tax) Act, 1999;
"Order" means the work required to be done in order to fulfil the customer's instructions;
"Quote" means the quote described in clause 2.1.
In these Terms and Conditions, unless the context otherwise requires:
(a) the singular includes the plural and vice versa;
(b) a reference to a clause is a reference to a clause of these Terms and Conditions;
(c) a reference to a party to these Terms and Conditions or any other document or arrangement includes that party's executors, administrators, successors and permitted assigns;
(d) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
(e) a reference to a period of time (including, without limitation, a year, a quarter, a month and a day) is to a calendar period.
In these Terms and Conditions, headings are for convenient reference only and do not affect interpretation.
1.5 Business Day
If the day on which any act, matter or thing is to be done under this agreement is not a Business Day, that act, matter or thing:
(a) if it involves a payment other than a payment which is due on demand, must be done on the preceding Business Day; and
(b) in all other cases, may be done on the next Business Day.
2.1 Ligare to supply quote
Ligare will if, requested by the Customer, give the customer a quote specifying:
(a) the work required to be done in order to fulfil the customer's instructions; and
(b) Ligare’s charge for the performance of such work.
2.2 Acceptance by customer
Where Ligare has given the customer a Quote:
(a) Ligare will commence work when the Quote has been accepted by the customer.
(b) The customer may accept the Quote by instructing Ligare in writing to commence work.
(c) Acceptance by the customer of the Quote will constitute acceptance by the customer of these Terms and Conditions.
2.3 Quote evidence of instructions
If a written Quote is accepted by the customer, Ligare will carry out the work the subject of the quote in a timely, proper and professional manner and the customer shall pay for the work in accordance with the Terms and Conditions.
Subject to clause 5.3, when the Order has been completed, Ligare will issue an invoice to the customer for the amount of the Estimate and for any of the other charges specified in clause 3.2.
3.2 Additional Charges
In addition to the amount of the Estimate, Ligare may charge to the customer:
(a) not used;
(b) fees for additional work required to be done as a result of the customer changing his, her or its instructions;
(c) not used;
(d) fees for work which involves tables or foreign language and which was not notified to Ligare before the Quote was prepared;
(e) fees for additional work required to be done as a result of author's corrections, including repagination or reformatting;
(f) fees and other charges for work required to be done urgently, including any overtime costs;
(g) fees for handling or storing material or equipment supplied by the customer for the purposes of the Order;
(h) fees for changing or correcting, in order to ensure that the Goods are properly produced, any plates, film, bromides, knife forms, artwork or any document including computer files supplied for the purposes of the Order by the customer;
(i) freight costs and charges;
(j) other charges, fees or disbursements referred to in these Terms and Conditions and not specified in this clause;
provided that the customer approved any such fees referred to in paragraphs (a) to (j) above in writing prior to the relevant fees being incurred.
3.3 For the purposes of these Terms and Conditions:
(a) "additional work" includes all work undertaken by Ligare as a consequence of the customer's variation, alteration or modification of its instructions in relation to the Order; and
(b) "freight costs and charge" includes all costs and expenses incurred by Ligare in removing the Goods from its premises, whether by way of actual or attempted delivery to the customer or otherwise.
3.4 Under/Over supplies
(a) The customer acknowledges that whilst Ligare will make every endeavour to produce the exact number of items in the Order, owing to human and/or machine/computer error the number of items actually produced may be 5% over or under the number specified in the Order ("a discrepancy").
(b) Where a discrepancy occurs Ligare will adjust the amount charged to the customer for the Order a pro rata amount to reflect the actual number of items produced.
4.1 Notification & Collection
Ligare shall notify the customer when the Goods are ready for an order requiring collection. The customer must collect the goods from Ligare’s premises as soon as commercially practicable upon being notified by Ligare that the Goods are ready for collection.
4.2 Delivery Costs
Ligare typically include the delivery cost of the Goods to one location within the Auckland area, pallet unload, within the Estimate. Deliveries outside of the Auckland area, or to multiple destinations will be quoted separately and the customer shall bear all freight costs and charges of such delivery.
Subject to clause 7.1 the customer may only reject the Goods if they do not comply with the customer's instructions. If the customer wishes to reject the Goods, the customer must notify Ligare of the rejection:
(a) if Ligare agrees to deliver the Goods to the customer's premises - within 7 days of delivery (or such other time as is mutually agreed);
(b) otherwise - within 7 days of notification that the Goods are ready for collection (or such other time as is mutually agreed).
The risk in the Goods passes to the customer:
(a) at the time of delivery.
If the customer rejects the Goods in accordance with these Terms and Conditions, risk reverts to Ligare at the time the customer notifies Ligare that the Goods are rejected.
5.1 Time for payment
The customer must pay to Ligare the total amount set out in the invoice by the 15th of the month following date of invoice
If Ligare submits to the customer a proof of the Goods Ligare will not be responsible for any errors in the Goods which appeared in the proof and which were not corrected by the customer before the Order commenced production.
7.2 Non-excludable Rights
The parties acknowledge that, under applicable State and Commonwealth law, certain conditions and warranties may be implied in these Terms and Conditions and there are rights and remedies conferred on the customer in relation to the provision of the Goods or of services which cannot be excluded, restricted or modified by agreement ("Non-excludable Rights").
7.3 Disclaimer of Liability
Ligare disclaims all conditions and warranties not set out in these Terms and Conditions, other than any Non-excludable Rights. To the extent permitted by law, the liability of Ligare for a breach of a Non-excludable Right is limited, at Ligare' option, to the supplying of the Goods and/or any services again or payment of the cost of having the Goods and/or any services supplied again.
7.4 Indirect losses
Notwithstanding any other provision of these Terms and Conditions, neither party is in any circumstance (whatever the cause) liable in contract (including, without limitation, under an indemnity), tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate the customer for:
(a) any increased costs or expenses;
(b) any loss of profit, revenue, business, contracts or anticipated savings; or
(c) any special, indirect or consequential loss or damage of any nature
whatsoever caused by the failure of Ligare to complete or delay in completing the Order or to deliver the Goods.
7.5 Electronic data
Without limiting the generality of the foregoing clauses, Ligare will not be liable to the customer for loss, however caused, of any data stored on disks, tapes, compact disks or other media supplied by the customer to Ligare.
7.6 Customer's property
Subject to clause 7.5, Ligare will not be liable for the damage, loss or destruction of any property of the customer in Ligare's possession unless the loss or damage is due to the failure of Ligare to exercise due care and skill in handling or storing the property.
7.7 Force Majeure
Ligare will have no liability to the customer in relation to any loss, damage or expense caused by Ligare's failure to complete the Order or to deliver the Goods as a result of fire, flood, tempest, earthquake, riot,
civil disturbance, theft, crime, strike, lockout, war, or any other matter beyond Ligare's control.
8.1 Alterations to style etc
If, before the Quote is prepared, the customer does not give Ligare specific instructions in relation to style, type or layout:
(a) Ligare may charge an additional amount for any additional work required to be done (including the production of additional proofs) as a result of the customer subsequently altering the style, type or layout used by Ligare, provided that any such additional charges are approved by the customer in writing prior to being incurred.
The customer must pay for overset matter (being matter produced on the customer's instructions but not used in a publication for which it was intended). The customer may instruct Ligare to retain overset matter for future issues of the publication or to discard the overset matter.
8.3 Not used.
8.4 Material supplied by customer
If Ligare and the customer agree in writing that the customer is responsible for supplying materials or equipment for the purposes of the Order:
(a) The customer must supply sufficient quantities of materials to allow for spoilage, such quantity to be specified by Ligare.
(b) Ligare will not normally count or check the materials and if requested by the customer to do so, may charge for counting or checking, provided that any such charges are approved by the customer in writing prior to being incurred.
(c) Ligare will not be responsible for any defects in the Goods to the extent caused by defects in or the unsuitability of materials or equipment supplied by the customer.
(d) Property in any materials supplied by the customer and incorporated into the Goods passes to Ligare at the time of incorporation.
8.5 Property left with Ligare
If the customer leaves property in Ligare's possession without specific instructions as to what is to be done with it, Ligare may, 12 months after gaining possession of the property, dispose of or sell the property and retain any proceeds of sale as compensation for holding and handling the property.
8.6 Responsibility to insure
Ligare has no obligation to insure any property of the customer in its possession. The customer must pay the cost of any insurance arranged by Ligare at the request of the customer.
8.7 Ancillary materials
Unless Ligare and customer agree otherwise, intellectual property rights in drawings, sketches, paintings, photographs, designs, typesetting, proofs, dummies, models, negatives, positives, blocks, engravings, stencils, dies, plates or cylinders, electros, stereos, discs, tapes, compact discs, or other media or data and other material produced by Ligare in the course of or in preparation for performing the Order (whether or not in fact used for the purposes of performing the Order) are the property of the customer.
(a) Intellectual property rights in any works created in the course of performance of these Terms and Conditions shall be the property of the customer.
(b) The customer:
(i) warrants that the customer has copyright in or a licence to authorise Ligare to reproduce, all artistic and literary works supplied by the customer to Ligare for the purposes of the Order and the customer hereby expressly authorises Ligare to reproduce all and any of such works for the purposes aforesaid;
(ii) hereby indemnifies and agrees to keep indemnified Ligare against liability, losses or expenses incurred by Ligare in relation to or in any way directly or indirectly connected with any breach of copyright or of any rights in relation to copyright in such literary and artistic works supplied as aforesaid by paying to Ligare any liabilities or damages that may be finally awarded against Ligare, or agreed with the customer in settlement, with respect to any claim that Ligare’s reproduction of such works in accordance with these Terms and Conditions breaches the intellectual property rights of a third party. Ligare will provide all reasonable co-operation, information and assistance to the customer in the conduct of the defence of any such proceedings. This clause sets out the entire liability of the customer in relation to any breach of paragraph (i) above and any infringement of the intellectual property rights of a third party.
Each party must keep confidential and not use any ideas communicated to it by the other party without the other party’s written consent.
8.10 Electronic/magnetic media
All disks, tapes, compact disks or other media (other than media supplied by the customer) used by Ligare to store data for the purposes of completing the Order are the property of Ligare. In the event that customer requests that such data so stored be supplied to it, Ligare may charge for supplying such data to the customer, provided that any such charges must be approved by the customer in writing prior to being incurred.
8.11 Storage of electronic data
Ligare will not be responsible for storing any data on disks, tapes, compact disks or other media when the Order has been completed. If Ligare agrees to store such data, Ligare may charge for doing so, provided that any such charges must be approved by the customer in writing prior to being incurred.
8.12 No Waiver
A power or right is not waived solely because the party entitled to exercise that power or right does not do so. A single exercise of a power or right will not preclude any other or further exercise of that power or right or of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver.
Any provision in these Terms and Conditions which is invalid or unenforceable in any jurisdiction must be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable. If that provision cannot be read down then it is capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these Terms and Conditions or affecting the validity or enforceability of that provision in any other jurisdiction.
8.14 Governing law and jurisdiction
These Terms and Conditions are governed by the law in force in New Zealand and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand and any courts which may hear appeals from those courts in respect of any proceedings in connection with these Terms and Conditions.
9.1 All amounts are subject to GST
Unless otherwise stated, all amounts expressed or described in these Terms and Conditions are subject to GST.
9.2 Out of pocket expenses are GST inclusive
All out of pocket expenses referred to in these Terms and Conditions are GST inclusive out of pocket expenses.
9.3 Ligare to assist Customer
Ligare will do all things reasonably available to it to assist the customer to claim on a timely basis any input tax credits (if any) the customer may be entitled to claim for any acquisition of goods and services from Ligare. This includes Ligare maintaining its registered status for GST purposes, and issuing tax invoices for supplies made under these Terms and Conditions on a timely basis as reasonably requested by the customer.