Terms & Conditions of Trade

1. Definitions

1.1 “Wholesaler” means Danco NZ Limited, its successors and assigns or any person

acting on behalf of and with the authority of Pomona Group Limited.

1.2 “Customer” means the person/s or any person acting on behalf of and with the authority of

the Customer requesting the Wholesaler to provide the Services as specified in any

proposal, quotation, order, invoice or other documentation, and:

(a) if there is more than one Customer, is a reference to each Customer jointly and

severally; and

(b) if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and

1.3 “Goods” means all Goods or Services supplied by the Wholesaler to the Customer at the

Customer’s request from time to time (where the context so permits the terms ‘Goods’ or

‘Services’ shall be interchangeable for the other).

1.4 “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where

applicable for the Goods as agreed between the Wholesaler and the Customer in

accordance with clause 5 below.

2. Acceptance

2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and

severally, by these terms and conditions if the Customer places an order for or accepts

delivery of the Goods.

2.2 These terms and conditions may only be amended with the Wholesaler’s consent in writing

and shall prevail to the extent of any inconsistency with any other document or agreement

between the Customer and the Wholesaler.

2.3 These terms and conditions may only be amended with the consent of both parties in

writing and shall prevail to the extent of any inconsistency with any other document or

contract between the Customer and the Wholesaler.

2.4 Goods are supplied by the Wholesaler only on the terms and conditions of trade herein to

the exclusion of anything to the contrary in the terms of the Customer’s order

notwithstanding that any such order is placed on terms that purport to override these terms

and conditions of trade.

2.5 Electronic signatures shall be deemed to be accepted by either party providing that the

parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or

any other applicable provisions of that Act or any Regulations referred to in that Act.

3. Errors and Omissions

3.1 The Customer acknowledges and accepts that the Wholesaler shall, without prejudice,

accept no liability in respect of any alleged or actual error(s) and/or omission(s):

(a) resulting from an inadvertent mistake made by the Wholesaler in the formation and/or

administration of this contract; and/or

(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by the

Wholesaler in respect of the Services.

3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not

attributable to the negligence and/or wilful misconduct of the Wholesaler; the Customer

shall not be entitled to treat this contract as repudiated nor render it invalid.

4. Change in Control

4.1 The Customer shall give the Wholesaler not less than fourteen (14) days prior written

notice of any proposed change of ownership of the Customer and/or any other change in

the Customer’s details (including but not limited to, changes in the Customer’s name,

address, contact phone or fax number/s, or business practice). The Customer shall be

liable for any loss incurred by the Wholesaler as a result of the Customer’s failure to

comply with this clause.

5. Price and Payment

5.1 At the Wholesaler’s sole discretion the Price shall be either:

(a) as indicated on any invoice provided by the Wholesaler to the Customer; or

(b) the Price as at the date of delivery of the Goods according to the Wholesaler’s current

price list; or

stated in the quotation or otherwise for a period of thirty (30) days.

5.2 The Wholesaler reserves the right to change the Price if a variation to the Wholesaler’s

quotation is requested. Any variation from the plan of scheduled works or specifications

(including, but not limited to, overseas transactions that may increase as a consequence of

variations in foreign currency rates of exchange and/or international freight and insurance

charges) will be charged for on the basis of the Wholesaler’s quotation, and will be detailed

in writing, and shown as variations on the Wholesaler’s invoice. The Customer shall be

required to respond to any variation submitted by the Wholesaler within ten (10) working

days. Failure to do so will entitle the Wholesaler to add the cost of the variation to the

Price. Payment for all variations must be made in full at the time of their completion.

5.3 Time for payment for the Goods being of the essence, the Price will be payable by the

Customer on the date/s determined by the Wholesaler, which may be:

(a) on delivery of the Goods;

(b) by way of instalments/progress payments in accordance with the Wholesaler’s

payment schedule;

in which a statement is posted to the Customer’s address or address for notices;

(d) the date specified on any invoice or other form as being the date for payment.

5.4 Payment may be made by cash, cheque, electronic/on-line banking, credit card (a

surcharge may apply per transaction), or by any other method as agreed to between the

Customer and the Wholesaler.

5.5 The Customer shall not be entitled to set off against, or deduct from the Price, any sums

owed or claimed to be owed to the Customer by the Wholesaler nor to withhold payment of

any invoice because part of that invoice is in dispute.

5.6 Unless otherwise stated the Price does not include GST. In addition to the Price the

Customer must pay to the Wholesaler an amount equal to any GST the Wholesaler must

pay for any supply by the Wholesaler under this or any other agreement for the sale of the

Goods. The Customer must pay GST, without deduction or set off of any other amounts, at

the same time and on the same basis as the Customer pays the Price. In addition the

Customer must pay any other taxes and duties that may be applicable in addition to the

Price except where they are expressly included in the Price.

6. Delivery of Goods

6.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:

(a) the Customer or the Customer’s nominated carrier takes possession of the Goods at

the Wholesaler’s address; or

(b) the Wholesaler (or the Wholesaler’s nominated carrier) delivers the Goods to the

Customer’s nominated address even if the Customer is not present at the address.

6.2 At the Wholesaler’s sole discretion the cost of delivery is either included in the Price or is in

addition to the Price.

6.3 Delivery of the Goods to a third party nominate by the Customer is deemed to be delivery

to the Customer for the purposes of this agreement.

6.4 The Wholesaler may deliver the Goods in separate instalments. Each separate instalment

shall be invoiced and paid in accordance with the provisions in these terms and conditions.

6.5 Any time specified by the Wholesaler for delivery of the Goods is an estimate only. The

Customer must take delivery by receipt or collection of the Goods whenever they are

tendered for delivery. The Wholesaler will not be liable for any loss or damage incurred by

the Customer as a result of delivery being late. In the event that the Customer is unable to

take delivery of the Goods as arranged then the Wholesaler shall be entitled to charge a

reasonable fee for redelivery and/or storage.

7. Risk

7.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the

Customer must insure the Goods on or before Delivery.

7.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership

passing to the Customer, the Wholesaler is entitled to receive all insurance proceeds

payable for the Goods. The production of these terms and conditions by the Wholesaler is

sufficient evidence of the Wholesaler’s rights to receive the insurance proceeds without the

need for any person dealing with the Wholesaler to make further enquiries.

7.3 Whilst every care is taken by the Wholesaler to carry out the instructions of the Customer,

it is the Customer’s responsibility to undertake a final proof reading of the Goods. The

Wholesaler shall be under no liability whatever for any errors not corrected by the

Customer in the final proof reading. Should the Customer’s alterations require additional

proofs this shall be invoiced as an extra.

7.4 Whilst the Wholesaler shall take all due care to ensure the highest quality Goods are

supplied to the Customer, the Customer acknowledges and agrees that due to the nature

of the Goods and Services, some printed adhesive tapes may distort, blur, or smudge. The

Wholesaler shall not be liable for any loss, damages, or costs however resulting from

distorted, blurred or smudged print on the adhesive tapes, unless due to the negligence of

the Wholesaler, or if the imperfections exceed the acceptable parameter.

8. Product Specifications

8.1 The Customer acknowledges that all descriptive specifications, illustrations, drawings,

data, dimensions, ratings and weights stated in the Wholesaler’s or manufacturer’s fact

sheets, price lists or advertising material, are approximate only and are given by way of

identification only. The Customer shall not be entitled to rely on such information, and any

use of such does not constitute a sale by description, and does not form part of the

contract, unless expressly stated as such in writing by the Wholesaler.

8.2 The Customer shall be responsible for ensuring that the Goods ordered are suitable for

their intended use.

9. Title

9.1 The Wholesaler and the Customer agree that ownership of the Goods shall not pass until:

(a) the Customer has paid the Wholesaler all amounts owing to the Wholesaler; and

(b) the Customer has met all of its other obligations to the Wholesaler.

9.2 Receipt by the Wholesaler 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.

9.3 It is further agreed that:

(a) until ownership of the Goods passes to the Customer in accordance with clause 9.1

that the Customer is only a bailee of the Goods and must return the Goods to the

Wholesaler on request.

(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for

the Wholesaler and must pay to the Wholesaler the proceeds of any insurance in the

event of the Goods being lost, damaged or destroyed.

other than in the ordinary course of business and for market value. If the Customer

sells, disposes or parts with possession of the Goods then the Customer must hold

the proceeds of any such act on trust for the Wholesaler and must pay or deliver the

proceeds to the Wholesaler on demand.

(d) the Customer should not convert or process the Goods or intermix them with other

goods but if the Customer does so then the Customer holds the resulting product on

trust for the benefit of the Wholesaler and must sell, dispose of or return the resulting

product to the Wholesaler as it so directs.

(e) the Customer irrevocably authorises the Wholesaler to enter any premises where the

Wholesaler believes the Goods are kept and recover possession of the Goods.

(f) the Wholesaler may recover possession of any Goods in transit whether or not

delivery has occurred.

(g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor

otherwise give away any interest in the Goods while they remain the property of the

Wholesaler.

(h) the Wholesaler may commence proceedings to recover the Price of the Goods sold

notwithstanding that ownership of the Goods has not passed to the Customer.

10. Personal Property Securities Act 1999 (“PPSA”)

10.1 Upon assenting to these terms and conditions in writing the Customer 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 and/or collateral (account) – being a monetary

obligation of the Customer to the Wholesaler for Services – that have previously been

supplied and that will be supplied in the future by the Wholesaler to the Customer.

10.2 The Customer 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 the Wholesaler may

reasonably require to register a financing statement or financing change statement on

the Personal Property Securities Register;

(b) indemnify, and upon demand reimburse, the Wholesaler 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;

statement in relation to the Goods and/or collateral (account) in favour of a third party

without the prior written consent of the Wholesaler; and

(d) immediately advise the Wholesaler 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.

10.3 The Wholesaler and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of

the PPSA shall apply to these terms and conditions.

10.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127,

129, 131 and 132 of the PPSA.

10.5 Unless otherwise agreed to in writing by the Wholesaler, the Customer waives its right to

receive a verification statement in accordance with section 148 of the PPSA.

10.6 The Customer shall unconditionally ratify any actions taken by the Wholesaler under

clauses 10.1 to 10.5.

11. Security and Charge

11.1 In consideration of the Wholesaler agreeing to supply the Goods, the Customer charges all

of its rights, title and interest (whether joint or several) in any land, realty or other assets

capable of being charged, owned by the Customer either now or in the future, to secure the

performance by the Customer of its obligations under these terms and conditions

(including, but not limited to, the payment of any money).

11.2 The Customer indemnifies the Wholesaler from and against all the Wholesaler’s costs and

disbursements including legal costs on a solicitor and own client basis incurred in

exercising the Wholesaler’s rights under this clause.

11.3 The Customer irrevocably appoints the Wholesaler and each director of the Wholesaler as

the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the

provisions of this clause 11 including, but not limited to, signing any document on the

Customer’s behalf.

12. Defects

12.1 The Customer shall inspect the Goods on delivery and shall within thirty (30) days of

delivery (time being of the essence) notify the Wholesaler of any alleged defect, shortage

in quantity, damage or failure to comply with the description or quote. The Customer shall

afford the Wholesaler an opportunity to inspect the Goods within a reasonable time

following delivery if the Customer believes the Goods are defective in any way. If the

Customer shall fail to comply with these provisions the Goods shall be presumed to be free

from any defect or damage. For defective Goods, which the Wholesaler has agreed in

writing that the Customer is entitled to reject, the Wholesaler’s liability is limited to either (at

the Wholesaler’s discretion) replacing the Goods or repairing the Goods.

12.2 Goods will not be accepted for return other than in accordance with 12.1 above.

13. Warranty

13.1 To the extent permitted by statute, no warranty is given by the Wholesaler as to the quality

or suitability of the Goods for any purpose and any implied warranty, is expressly excluded.

The Wholesaler shall not be responsible for any loss or damage to the Goods, or caused

by the Goods, or any part thereof however arising.

14. Consumer Guarantees Act 1993

14.1 If the Customer is acquiring Goods for the purposes of a trade or business, the Customer

acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to

the supply of Goods by the Wholesaler to the Customer.

15. Intellectual Property

15.1 Where the Wholesaler has designed, drawn or developed Goods for the Customer, then

the copyright in any designs and drawings and documents shall remain the property of the

Wholesaler. Under no circumstances may such designs, drawings and documents be used

without the express written approval of the Wholesaler.

15.2 The Customer warrants that all designs, specifications or instructions given to the

Wholesaler will not cause the Wholesaler to infringe any patent, registered design or

trademark in the execution of the Customer’s order and the Customer agrees to indemnify

the Wholesaler against any action taken by a third party against the Wholesaler in respect

of any such infringement.

15.3 The Customer agrees that the Wholesaler may (at no cost) use for the purposes of

marketing or entry into any competition, any documents, designs, drawings or Goods

which the Wholesaler has created for the Customer.

16. Default and Consequences of Default

16.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due,

until the date of payment, at a rate of two and a half percent (2.5%) per calendar month

(and at the Wholesaler’s sole discretion such interest shall compound monthly at such a

rate) after as well as before any judgment.

16.2 If the Customer owes the Wholesaler any money the Customer shall indemnify the

Wholesaler from and against all costs and disbursements incurred by the Wholesaler in

recovering the debt (including but not limited to internal administration fees, legal costs on

a solicitor and own client basis, the Wholesaler’s collection agency costs, and bank

dishonour fees).

16.3 Further to any other rights or remedies the Wholesaler may have under this contract, if a

Customer has made payment to the Wholesaler, and the transaction is subsequently

reversed, the Customer shall be liable for the amount of the reversed transaction, in

addition to any further costs incurred by the Wholesaler under this clause 16 where it can

be proven that such reversal is found to be illegal, fraudulent or in contravention to the

Customer’s obligations under this contract.

16.4 Without prejudice to the Wholesaler’s other remedies at law the Wholesaler shall be

entitled to cancel all or any part of any order of the Customer which remains unfulfilled and

all amounts owing to the Wholesaler shall, whether or not due for payment, become

immediately payable if:

(a) any money payable to the Wholesaler becomes overdue, or in the Wholesaler’s

opinion the Customer will be unable to make a payment when it falls due;

(b) the Customer has exceeded any applicable credit limit provided by the Wholesaler;

enters into an arrangement with creditors, or makes an assignment for the benefit of

its creditors; or

(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is

appointed in respect of the Customer or any asset of the Customer.

17. Cancellation

17.1 Without prejudice to any other remedies the Wholesaler may have, if at any time the

Customer is in breach of any obligation (including those relating to payment) under these

terms and conditions the Wholesaler may suspend or terminate the supply of Goods to the

Customer. The Wholesaler will not be liable to the Customer for any loss or damage the

Customer suffers because the Wholesaler has exercised its rights under this clause.

17.2 The Wholesaler may cancel any contract to which these terms and conditions apply or

cancel delivery of Goods at any time before the Goods are delivered by giving written

notice to the Customer. On giving such notice the Wholesaler shall repay to the Customer

any money paid by the Customer for the Goods. The Wholesaler shall not be liable for any

loss or damage whatsoever arising from such cancellation.

17.3 In the event that the Customer cancels delivery of Goods the Customer shall be liable for

any and all loss incurred (whether direct or indirect) by the Wholesaler as a direct result of

the cancellation (including, but not limited to, any loss of profits).

17.4 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist

items, will definitely not be accepted once production has commenced, or an order has

been placed.

18. Privacy Act 1993

18.1 The Customer authorises the Wholesaler or the Wholesaler’s agent to:

(a) access, collect, retain and use any information about the Customer;

(i) (including any overdue fines balance information held by the Ministry of Justice)

for the purpose of assessing the Customer’s creditworthiness; or

(ii) for the purpose of marketing products and services to the Customer.

(b) disclose information about the Customer, whether collected by the Wholesaler from

the Customer directly or obtained by the Wholesaler from any other source, to any

other credit provider or any credit reporting agency for the purposes of providing or

obtaining a credit reference, debt collection or notifying a default by the Customer.

18.2 Where the Customer is an individual the authorities under clause 18.1 are authorities or

consents for the purposes of the Privacy Act 1993.

18.3 The Customer shall have the right to request the Wholesaler for a copy of the information

about the Customer retained by the Wholesaler and the right to request the Wholesaler to

correct any incorrect information about the Customer held by the Wholesaler.

19. Service of Notices

19.1 Any written notice given under this contract shall be deemed to have been given and

received:

(a) by handing the notice to the other party, in person;

(b) by leaving it at the address of the other party as stated in this contract;

contract;

(d) if sent by facsimile transmission to the fax number of the other party as stated in this

contract (if any), on receipt of confirmation of the transmission;

(e) if sent by email to the other party’s last known email address.

19.2 Any notice that is posted shall be deemed to have been served, unless the contrary is

shown, at the time when by the ordinary course of post, the notice would have been

delivered.

20. Trusts

20.1 If the Customer at any time upon or subsequent to entering in to the contract is acting in

the capacity of trustee of any trust (“Trust”) then whether or not the Wholesaler may have

notice of the Trust, the Customer covenants with the Wholesaler as follows:

(a) the contract extends to all rights of indemnity which the Customer now or

subsequently may have against the Trust and the trust fund;

(b) the Customer has full and complete power and authority under the Trust to enter into

the contract and the provisions of the Trust do not purport to exclude or take away the

right of indemnity of the Customer against the Trust or the trust fund. The Customer

will not release the right of indemnity or commit any breach of trust or be a party to

any other action which might prejudice that right of indemnity.

not unreasonably withhold consent), cause, permit, or suffer to happen any of the

following events;

(i) the removal, replacement or retirement of the Customer as trustee of the Trust;

(ii) any alteration to or variation of the terms of the Trust;

(iii) any advancement or distribution of capital of the Trust; or

(iv) any resettlement of the trust property.

21. General

21.1 The failure by either party to enforce any provision of these terms and conditions shall not

be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently

enforce that provision. If any provision of these terms and conditions shall be invalid, void,

illegal or unenforceable the validity, existence, legality and enforceability of the remaining

provisions shall not be affected, prejudiced or impaired.

21.2 These terms and conditions and any contract to which they apply shall be governed by the

laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.

21.3 The Wholesaler shall be under no liability whatsoever to the Customer for any indirect

and/or consequential loss and/or expense (including loss of profit) suffered by the

Customer arising out of a breach by the Wholesaler of these terms and conditions

(alternatively the Wholesaler’s liability shall be limited to damages which under no

circumstances shall exceed the Price of the Goods).

21.4 The Wholesaler may licence and/or assign all or any part of its rights and/or obligations

under this contract without the Customer’s consent.

21.5 The Customer cannot licence or assign without the written approval of the Wholesaler.

21.6 The Wholesaler may elect to subcontract out any part of the Services but shall not be

relieved from any liability or obligation under this contract by so doing. Furthermore, the

Customer agrees and understands that they have no authority to give any instruction to

any of the Wholesaler’s sub-contractors without the authority of the Wholesaler.

21.7 The Customer agrees that the Wholesaler may amend these terms and conditions by

notifying the Customer in writing. These changes shall be deemed to take effect from the

date on which the Customer accepts such changes, or otherwise at such time as the

Customer makes a further request for the Wholesaler to provide Goods to the Customer.

21.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike,

lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of

either party.

21.9 Both parties warrant that they have the power to enter into this contract and have obtained

all necessary authorisations to allow them to do so, they are not insolvent and that this

contract creates binding and valid legal obligations on them.

Terms & Conditions of Trade

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