Terms and Conditions
1.1 All quotations and all orders are accepted subject to these Terms and Conditions only. All other terms and conditions whatsoever are excluded from the contract or any variation thereof unless expressly accepted by the Company in writing.
1.2 “The Company” shall mean Band Limited, trading as Band.
1.3 “The Client” shall mean any legal or natural person commissioning goods or services from the Company.
1.4 “Goods” and “services” shall include any work, product, documentation, graphical representation, translation, computer data and any other information storage, retrieval or transfer media, or the provision of such, and the latter terms are interpreted as including the former.
1.5 In the recourse to any of the services provided by the Company, the Client declares that he/she accepts these conditions, in extenso, and thus consequently renounces all differing or contradictory conditions that might otherwise normally apply.
2 Purpose of work and level of checking
2.1 At the time of requesting a quotation or ordering any goods or services, the Client shall provide the Company with all information necessary for costing and/or providing the required goods or services, including the intended purpose of any work done by the Company.
2.2 The Company shall not be liable for any deficiency in any goods or services supplied if the Client shall decide at any time to use the goods or services for any different purposes from that made known to the Company at the time of ordering.
2.3 The Client shall indicate clearly in writing, at or before the time of ordering any work done by the Company, the level of checking required. In default, the Company will use its discretion in providing appropriate checking.
2.4 Where proofs of work are supplied to the Client for approval, the Company shall incur no liability for any errors which are not detected and clearly marked by the Client for correction on those proofs. In cases where matters including style, type, or layout are left by the Client to the discretion of the Company, any subsequent change in specification, including amendments made by the Client, will be chargeable.
2.5 The Client shall clearly indicate what work is and is not required by the Company, and the Company will find chargeable any work that was done for the good of the Client when the Client did not specify that it was not to be done.
3 Quotations and estimates
3.1 Binding quotations shall not be given against productions that are not fully specified and briefed. Estimates for work to be carried out on productions not described in their entirety shall be subject to confirmation on receipt of the complete specifications of the production. All quotations shall be available for acceptance for a maximum of 28 days from the date thereof, unless otherwise specified in writing by the Company, and may be withdrawn by the Company within such period at any time by written notice.
3.2 The Company reserves the right not to accept any order for which no written confirmation signed by the Client has been received.
3.3 All estimates and quotations are given nett, exclusive of VAT, at the rate current at the time of invoicing. All prices are given per service or material provided, where more than one service or material is requested, unless otherwise specified.
3.4 Unless otherwise agreed in writing, all estimates and quotations are not inclusive of delivery or return of material charges.
3.5 Interim deliveries, deliveries of proofs or drafts for approval, or delivery by any other means shall be at the Client's request and chargeable.
3.6 Any statement or representation made to the Client by the Company, its servants or agents upon which the Client relies, other than in the documents enclosed with the Company's estimate, quotation or acknowledgement of order, does not form part of any estimate, quotation or contract, and does not supersede the provisions of these conditions, unless set out in the document to be attached to or endorsed on the Client's order, and in any such case the Company may confirm, reject or clarify the point, and submit a new quotation.
3.7 In the absence of a written quotation, the price of any work shall be determined by the Company in accordance with the appropriate prices and procedures at that time.
3.8 In the event of any alteration being requested by the Client and agreed by the Company in the specification, quantity or intended use of the work in accordance with conditions 2.1 and 2.2 hereof, the Company shall be entitled to make an adjustment to the contract price, corresponding to those alterations.
3.9 All alterations to the original specification, quantity or intended use of the work shall be confirmed in writing by the Client. If the Company agrees to make any alteration, any previously agreed delivery or completion dates may be amended and prices modified.
3.10 If, following acceptance of the Client's order, any error or omission is discovered in the quotation, the Client shall accept the Company's reasonable amendment of the quotation in terms of cost and/or time to make good the error or omission.
3.11 An additional charge may be made for work which may be necessary where copy supplied by the Client is in need of editing. An additional charge may be made for work which may be necessary where copy supplied by the Client is in need of expansion or development, with the prior permission from the Client to expand or develop it further.
4 Preliminary work
4.1 All work carried out at the request of the Client, whether as a test or otherwise, shall be subject to the Company's Terms and Conditions, and shall be charged, irrespective of the commissioning or completion of any related or subsequent works unless otherwise agreed.
5.1 If work is commissioned and subsequently cancelled by the Client, the Client shall pay the Company forthwith a sum equal to all costs and expenses incurred by the Company up to the time of cancellation, and all loss or damage resulting to the Company by reason of such cancellation.
6.1 Unless otherwise agreed in writing by the Company, the Client shall make payment in full nett of all charges within 30 days of issue of the Company's invoice, failing which interest shall be payable 2 percent over the base rate current at that time for every month or part of a month by which payment is overdue.
6.2 Where work is delivered by instalments or stages, the Company may invoice each instalment or stage separately and the Client shall pay such invoices in accordance with these conditions.
6.3 Where the time necessary to complete work is greater than one calendar month, the Company may invoice in monthly instalments to the value of work carried out during each calendar month. When 6.2 and 6.3 occur, the invoice numbers will be different, but the job number will remain the same. Therefore there will be more than one invoice issued for a single job.
6.4 No disputes arising from the contract shall prejudice the right of the Company to prompt payment under the conditions of 6.1 for all work duly completed.
6.5 In the event of default in payment by the Client on any wholly or partly completed contract, or any instalment thereof, the Company shall be entitled, without prejudice to any other right or remedy, to suspend all further work for the client.
6.6 In the event of any such default in payment, the Company may charge interest on any outstanding amount at the rate of 3% per annum above the base rate in force at the time when payment was due and/or treat the contract as repudiated in whole or in part and sue for damages.
6.7 When any act or omission by the Client causes delay in the delivery of any work completed either in part or in whole, the Company shall be entitled to payment in full for the completed work under the provisions of 6.1, and delay in delivery shall not imply right to delay payment.
6.8 Where a client to whom an estimate or quotation has been given requests the Company to invoice a third party, the order will only be accepted where payment is made in advance and/or where written confirmation has been received from the third party. Under no circumstances will such a request be considered by the Company after an order has been accepted.
7.1 Times given for delivery of the goods and completion of the works are given as accurately as possible, but are not guaranteed. The Client shall have no right to damages or to cancel the order for failure for any cause to meet any delivery or completion time stated.
7.2 Notwithstanding any provision in 7.1, where time and/or place of delivery are of the essence, the parties may agree the specific requirements of performance ahead of time by way of signed agreement, including the consequences of any failure to perform.
7.3 The agreement to make special provisions under the terms of 7.2 shall in no way prejudice the operation of any other terms and conditions that would otherwise have been applicable.
7.4 The date of delivery or completion shall in every case be dependent upon prompt receipt of all necessary material, information, instructions or approvals from the Client. Alterations by the Client to the original specification, quantities or intended use of the works may result in delay in delivery or completion.
8.1 The Company shall be entitled to appoint one or more sub-contractors of its choice to carry out all or any of its obligations under the contract.
8.2 In the event that the Client comes to know an employee or sub-contractor working or having worked through the Company for the Client, and the said employee or sub-contractor is subsequently offered or takes direct employment whether full, part-time or freelance, or accepts any order by or from the Client within one year of having worked through the Company for the Client, an introduction fee of $5000.00 plus GST at the current rate shall be due and payable immediately to the Company by the Client, unless otherwise agreed in writing by the Company.
8.3 Any alteration or addition to the specification of any work to be carried out by employees or sub-contractors of the Company who are working or who have worked on the Client's premises or any other geographical location at his/her request must be notified to and confirmed by the Company in writing. Under no circumstances may the sub-contractor or employee accept any other duty or task without the written confirmation of the Company.
9.1 All orders are accepted by the Company on the understanding that the Client holds brand name or text copyrights to any name/text. In all cases, the Client undertakes to keep the Company harmless from any claim for infringement of copyright, likewise for any legal action including that which might arise between legal or physical persons as a result of the content of the original brand name or text.
9.2 The Company retains copyright in all text, graphic material and computer data it produces, until such time as it expressly assigns such rights in writing to the Client, and in any event until the work or service has been paid for in full by the Client. However, in the event that payment is not received by the Company in accordance with Condition 6 hereof, the said licence shall be automatically revoked and the Client shall not be at liberty to make use of any work or goods in which the copyright of the Company subsists.
9.3 Without prejudice to clauses 9.1 and 9.2, the Client shall indemnify and hold harmless the Company at all times and against all claims which may be made against the Company and costs incurred in connection therewith arising out of the publication and dissemination of such work or the performances of such services or the inclusion of such work or services of any matter submitted by the Client which is not itself the subject of translation or other work by the Company.
10 Complaints and disputes
10.1 The Client shall notify the Company in writing within 10 working days of receipt of the work or goods or any part thereof of any defects or divergences from the agreed terms of the order and give the Company the opportunity to examine and comment on and, if necessary, rectify any such defects and divergences. The Company shall not be liable for the cost of rectifying any such defects or divergences which it has not been given the opportunity to carry out itself and which have been carried out without its written agreement.
10.2 All notifications of defects or divergences from the agreed terms of the order must be supported by any documentation required to provide the Company with a clear understanding of the substance of the complaint.
11.1 The Company shall carry out work and supply goods and services to the best of its ability and shall limit its liability therefore, whether direct or consequential, to the value of the invoice for the work, services or goods in respect of which the liability is incurred.
11.2 The Client shall hold the Company harmless against any claim of any nature whatsoever which may be made at any time by a third party in respect of any work done by the Company at the Client's instruction.
12 Illegal matter
12.1 The Company shall not be required to print, publish or otherwise disseminate any matter which, in its opinion, is or may be of an illegal or libellous nature.
12.2 The Company shall be indemnified by the Client in respect of any claims, costs and expenses arising out of any illegal or libellous matter printed, published or otherwise disseminated for the Client, or any infringement of copyright, patent or design. This indemnity shall extend to any amounts paid on a lawyer's advice in settlement of any claim.
13 Data Protection Act
13.1 The Client shall meet all costs and obligations with respect to information covered by the Data Protection Act and held by the Company on behalf of the Client.
14 Force majeure
14.1 The Company shall not be liable for any delay, loss or damage, or failure to carry out any works, caused in part or in whole by War, Act of God, or any act, decision or pronouncement of the Government of New Zealand or any other government.
14.2 The Company shall not be liable for any delay, loss or damage, or failure to carry out any works, caused by an act, or failure to act, pursuant on any trade dispute, whether involving its own employees or not.
14.3 The Company shall not be liable for any delay, loss or damage, or failure to carry out any works, caused by any other thing, matter or occurrence beyond its control.
15.1 Unless otherwise stated, all prices quoted are tax-exclusive and GST will be added where applicable.
16 Client’s property
16.1 Client's property and all property supplied to the Company by or on behalf of the Client will be held at the Client's risk.
17 Insolvency/general lien
17.1 If the Client ceases to pay his debts in the ordinary course of business or cannot pay his debts as they become due or being a company is deemed unable to pay its debts or has a winding-up order issued against it or being a person commits an act of bankruptcy or has a bankruptcy petition issued against him, the Company without prejudice to other remedies shall
17.2 have the right not to proceed further with the contract or any other work for the Client and be entitled to charge for work already carried out (whether completed or not) and materials or services purchased for the Client, such charge to be an immediate debt due to him and
17.3 in respect of all unpaid debts due from the Client have a general lien on all goods and property in the Company's possession (whether worked on or not) and shall be entitled on the expiry of 14 days' notice to dispose of such goods or property in such manner and at such price as it thinks fit and to apply the proceeds to such debts.
18.1 The terms and conditions and contract shall be governed and interpreted according to the Law of New Zealand.