Konstruct Limited (referred to in these Terms and Conditions as Konstruct, we, our or us) operates this website (http://konstruct.co.nz). By agreeing to accept products or services from us, you consent to the following Terms and Conditions (as amended from time to time).
(a) The conditions of sale set out below will apply to all contracts for the supply of all goods and any associated services (goods) made with Konstruct and the person purchasing the goods (Buyer) and will not be deemed or construed to be modified, amended, rescinded, cancelled or waived in whole or in part except by written amendment signed by Konstruct.
(b) Acceptance of delivery of any goods is deemed to be acceptance by the Buyer of these Terms and Conditions, notwithstanding anything that may be stated to the contrary in the Buyer's enquiries or on the Buyer's orders.
(a) Payment must be made in full before production and delivery on an order can occur.
(b) Credit accounts are available to approved purchasers via completion of a credit application form. Payment for credit accounts is due on the 20th of the month following invoice.
(c) If payment is not received by the due date, Konstruct may do any of the following:
(i) charge interest of 2% per month or part thereof calculated on a daily basis from the due date on any outstanding balance;
(ii) withhold any deliveries or cancel undelivered orders;
(iii) cancel or halt production of any order;
(iv) inform third parties including your employer;
(v) refer the overdue account to a debt collection agency; and
(vi) file suit for damages.
(d) The Buyer shall, upon demand, reimburse Konstruct for any costs associated with recovery of payment (including, without limitation, debt collection agency costs and legal costs on a solicitor-client basis).
3. Title/Personal Property Securities Act 1999
(a) Title in all goods does not pass until payment has been received in full. Konstruct has the right to recover possession in the event of payment default.
(b) The Buyer acknowledges that these Terms and Conditions constitute a security agreement which creates a security interest in favour of Konstruct in all goods previously supplied by Konstruct to the Buyer (if any) and all after acquired goods supplied by Konstruct to the Buyer (or for the Buyer's account) to secure the payment from time to time and at a time, including future advances. The Buyer agrees to grant a 'purchase money security interest' to Konstruct (as that term is defined in the Personal Property Securities Act 1999 (PPSA).
(c) The Buyer grants a security interest to Konstruct (including under clause 3(a)) in all goods and services previously supplied by Konstruct to the Buyer (if any) and all after-acquired goods and services supplied by Konstruct to the Buyer (or for the Buyer's account).
(d) The Buyer undertakes to:
(i) sign any further documents and/or provide any further information (which information the Buyer warrants to be complete, accurate and up-to-date in all respects) which Konstruct reasonably requires to enable registration of a financing statement or financing charge statement on the Personal Property Securities Register (PPSR);
(ii) not register a financing change statement as defined in section 135 of the PPSA or make a demand to alter the financing statement pursuant to section 162 of the PPSA in respect of the Goods without the prior written consent of Konstruct;
(iii) give Konstruct not less than 14 days' prior written notice of any proposed change in the Buyer's name and/or any other changes in the Buyer's details (including, without limitation, changes in the Buyer's address, facsimile number, email address, trading name, ownership or business practice);
(iv) pay all costs incurred by Konstruct in registering and maintaining a financing statement (including registering a financing change statement) on the PPSR and/or enforcing or attempting to enforce the security interest created by these Terms and Conditions including executing subordination agreements; and
(v) be responsible for the full costs incurred by Konstruct (including actual legal fees and disbursements on a solicitor-client basis) in obtaining an order pursuant to section 167 of the PPSA.
(e) The Buyer waives any rights it may have under sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
(f) Pursuant to section 148 of the PPSA, unless otherwise agreed to in writing by Konstruct Clothing, the Buyer waives the right to receive a verification statement in respect of any financing statement or financing change statement relating to the security interest.
(g) To the maximum extent permitted by law, the Buyer waives its rights and, with Konstruct’s agreement, contracts out if it’s rights under sections referred to in sections 107(2), 8(e) and (g)to (i) of the PPSA.
(h) The Buyer agrees that nothing in section 113, 114(1)(a), 117(1)(c), 133 and 134 of the PPSA shall apply to these terms, and, with Konstruct’s agreement, contracts out of such sections.
(i) The Buyer and Konstruct agree that section 190(1) of the PPSA is contracted out of in respect of particular goods in and only for as long as Konstruct is not the secured party with priority over all other secured parties in respect of the goods and services.
(j) The Buyer agrees that immediately on request by Konstruct the Buyer will procure from any person considered by Konstruct to be relevant to its security position such agreement and waivers as Konstruct may at any time require.
(a) Should the Buyer default or be placed in receivership, wound up, declared bankrupt, or otherwise become insolvent, then in addition to any other rights Konstruct has, Konstruct may demand immediate payment of all amounts then unpaid.
(b) In the event of default the Buyer authorises Konstruct and its agents to supply and disclose appropriate information relating to the Buyer in order to obtain payment. The Buyer may access and correct this information.
5. Refusal to Supply
(a) We reserve the right to refuse to supply Buyers who have unacceptable payment habits, provide fraudulent information or frequently exceed their credit limit. We reserve the right to refuse to supply products which are objectionable in nature, obscene or derogatory. We will not manufacture products which breach copyrights or trademarks. The Buyer indemnifies Konstruct in respect of any and all claims and/or expenses arising out of any illegal or defamatory matter or breach of statute or infringement of intellectual property.
(a) Unless specified otherwise, quotations are valid for 30 days and are subject to variation. Some costs are unknowable until production takes place (for example, the number of stitches in an embroidery or additional artwork requirements). While we endeavour to bill on quotations, variations are possible. Unless specified on our invoice, all prices are exclusive of Goods and Services Tax, freight costs and insurance charges, all of which the Buyer must pay.
7. Confirmation of Orders
(a) We reserve the right to require signed order confirmation. Any order confirmation (including an email instruction to proceed) will form the basis of the contract between Konstruct and the Buyer and will be governed by these Terms and Conditions.
(b) Where the Buyer instructs Konstruct to proceed with an order but subsequently cancels that order, Konstruct may charge the Buyer for all costs incurred prior to the cancellation of that order (including freight, restocking and special material purchase costs) along with a $50 cancellation fee.
(a) Corrections required after the first proof which are not the fault of Konstruct may incur additional cost.
9. Verbal Instructions
(a) All instructions must be made in writing. Konstruct will not accept liability for errors or omissions arising as a result of misinterpretation or miscommunication of verbal instructions.
(a) Konstruct will endeavour to match colours as closely as possible but cannot guarantee exact accuracy.
(a) It is the Buyer’s responsibility to check proofs for errors and omissions. It is recommended that the Buyer check spelling and wording carefully.
12. Electronic Files
(a) Konstruct is not responsible for the retention of original electronic files. It is recommended that the Buyer backup all artwork files. Konstruct reserves the right to charge for any additional work required to translate, edit or utilise Buyer supplied files. (b) Konstruct owns all intellectual property rights in any artwork, digitisation or other files created in order to produce the Buyer's product and will not be obligated to provide any such files to the Buyer.
(a) Konstruct makes no representation and gives no assurance, condition or warranty of any kind to the Buyer in relation to any goods or services supplied to the Buyer and accepts no liability for any assurance, condition, warranty, representation, statement or term not expressly set out in these terms of trade or other writing given by Konstruct to the Buyer (including any assurance, condition or warranty implied by law except to the extent that such cannot be excluded). Where the Buyer is acquiring the goods or services for business purposes, the Consumers Guarantee Act 1993 shall not apply. Konstruct will not be liable for any indirect or consequential loss or damage of any kind occasioned by errors in the work or delay in delivery. Konstruct shall not be responsible for any delay, default, loss or damage due to industrial disputes, accidents, acts of God, equipment failure or mischievous damage or other cause beyond Konstruct’s reasonable control. No warranty is given or responsibility accepted by Konstruct to ensure that goods produced comply with the requirements of any legislation relating to the marking and/or labelling, and/or packaging of goods. Compliance with any such legislation is the Buyer's responsibility.
(a) While Konstruct will endeavour to supply by agreed times no guarantee is made unless done so expressly in writing.
(a) Goods in transit can be insured upon request (at additional cost). If goods are damaged in transit the Buyer must retain all packaging and notify both the courier and Konstruct immediately. In the event that the goods are not dispatched as specified in the signed order confirmation form, Konstruct will resupply or otherwise make amends. It is a condition of resupply that faulty goods are returned to Konstruct at our expense. In no circumstances whatsoever will Konstruct be liable for consequential losses suffered by the Buyer and/or any third party.
(a) Because goods are made specially to order they cannot be returned except where faulty. In the event that, at Konstruct’s discretion, goods are accepted for return, such return will be subject to a handling fee. All goods returned must be in unworn/unused condition and returned within 14 days (at the Buyer’s expense). Goods that satisfy all of these conditions can be returned for a full refund (less handling fee).
(a) The risk in the goods passes to the Buyer upon delivery. The Buyer is obliged to insure the goods from the time of delivery until payment is made.
18. Consumer Guarantees Act 1993
(a) This section applies only to New Zealand consumers. Where goods are provided for personal purposes the Consumer Guarantees Act 1993 applies. Where goods are provided for business purposes the provisions of the Act are expressly excluded.
19. Privacy Act 1993/Unsolicited Electronic Messages Act 2007
(b) The Buyer consents to the receipt of periodic electronic messages from Konstruct marketing Konstruct’s or relevant third parties goods or services.
20. Personal Guarantee
(a) If the Buyer is a company or trust, the director(s) or trustee(s) entering into this contract grant in consideration for Konstruct agreeing to supply goods and grant credit, also enter in their personal capacity and jointly and severally personally undertake as principal debtors to Konstruct the payment of any and all monies hereafter owed by the Buyer to Konstruct and indemnify Konstruct against non-payment by the Buyer. Any personal liability of a director or trustee hereto shall not exclude the Buyer in any way whatsoever from the liabilities and obligations contained in this contract. The director(s) or trustee(s) and Buyer shall be jointly and severally liable under the terms and conditions of this contract and for payment of all sums due hereafter.
(a) Changes to these Terms and Conditions will be posted on our website (konstruct.co.nz/terms). Changes are effective as at the date of publication on the website and all orders placed after that event will be subject to the revised terms and conditions.
(a) In the event of dispute the parties shall negotiate in good faith to settle the dispute. If the dispute is not resolved within 21 days from the commencement of negotiation then the parties may agree to refer the dispute to mediation. Nothing shall prevent either party obtaining an injunction or restraining order maintaining the status quo pending completion of mediation.
(a) Konstruct shall not be deemed to have waived or varied any of the provisions of these Terms and Conditions or any right or remedy which it may have unless such a waiver is in writing. No waiver of breach shall be deemed to be a waiver of any other breach or further breach.
(a) These terms and conditions prevail over the Buyers own. In the event that any part of this contract is invalid or void or illegal or unenforceable then it is severed from the contract insofar as it is invalid or void or illegal or unenforceable and the remainder remains intact without prejudice or impairment.
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