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
(c) includes the Customer’s executors, administrators, successors and permitted assigns.
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
(c) the Wholesaler’s quoted price (subject to clause 5.2) which will be valid for the period
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;
(c) for certain approved Customers, due twenty (20) days following the end of the month
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.
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods
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;
(c) not register, or permit to be registered, a financing statement or a financing change
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;
(c) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or
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;
(c) by sending it by registered post to the address of the other party as stated in this
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.
(c) the Customer will not without consent in writing of the Wholesaler (the Wholesaler will
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.