TACTIX® TERMS AND CONDITIONS OF TRADE
Thank you for your interest in doing business with Tactix Limited (“us”) by purchasing a TACTIX® marketing package. So that both you as customer (“you”) and we as service provider have a clear understanding of our relationship, all business transacted with us will be on the basis of these terms and conditions. By transacting any business with us, you will be deemed to have read, understood and accepted these terms and conditions.
1. DEFINED TERMS
“Goods” means all goods and services supplied by us to you from time to time, and includes all written material and images supplied to you (including questionnaires and marketing plans), whether in proof or final versions.
“Intellectual Property” means our brand name, domain name and marketing materials and all of our proprietary information used in the provision of the goods to you, which includes without limitation all questionnaires, marketing plan structures, templates and processes developed by us and which are protected by copyright.
“PPSA” means the Personal Property Securities Act 1999 as amended or substituted from time to time. Unless the context otherwise requires, words and phrases shall have the meanings given to them in or by virtue of the PPSA.
2. TERMS OF CONTRACT
2.1 Any goods or services supplied by us to you shall be subject to these Terms unless we agree in writing to change them. If you accept delivery of goods or services from us, you will be deemed to have accepted these Terms, notwithstanding anything that may be stated to the contrary in your enquiries or your order or in any other specification, tender, quotation, contract or acceptance document.
3.1 Prices quoted are excluding GST unless otherwise stated and are quoted in $NZ unless otherwise specified. Unless otherwise agreed in writing, the price of the goods or services will be the current price on the day of order. We may change our prices from time to time without notice. Prices do not include any delivery fees. We are entitled to charge a delivery fee, which will be calculated by reference to the goods purchased and the post code of the address stated in the order.
3.2 We shall be entitled to adjust any price quoted from time to time and you agree to pay any such adjusted price to take account of variations in the cost to us of carrying out the whole or any part of the contract.
3.3 We may withdraw any quotation before it is accepted and in any event all quotations will lapse within 30 days without further notice.
4.1 Unless we have otherwise agreed in writing, you must pay for goods or services on the following basis:
(a) For the TACTIX® Package One, a deposit of 50% of the purchase price is due and payable on the day you place an order for a marketing plan, 30% payment is due and payable immediately following our presentation of the draft marketing plan to you (the plan may be presented to you either in person or over the telephone and by email, at our discretion) and the final 20% is due and payable within 7 days following our final invoice.
(b) For all other goods or services provided by us to you, payment is due in full on or before 7 days following our invoice, however we may in our absolute discretion require payment of a deposit or that the price be paid wholly or partly in advance. Where a project runs for longer than one month, we may charge for the work completed on a monthly basis.
4.2 If you do not make full payment for the goods or services on the due date then, without prejudice to any other remedies available to us:
(a) we may cancel or withhold future supplies to you of goods or services;
(b) interest on monies overdue will incur penalty interest at the rate of 2% compound interest per month. Outstanding accounts may be referred to a debt collection agency and/or legal action undertaken in a Court of Law. You shall be responsible for all costs incurred by us in recovering such monies.
4.3 We shall have a right of set-off with respect to amounts owed by you to us under these Terms in relation to any monies owing by us or any of our related companies to you, howsoever arising. Your obligation under these Terms shall be to pay the full amount owing under these Terms free of all deductions or rights to set off.
5. INFORMATION SUPPLIED BY YOU
5.1 You must make all requests for goods or services in writing, and quotations will be based on the information provided by you at the time of quoting. The content of goods and services will be based on the information provided by you, and we will not be liable for errors or omissions arising from incomplete or incorrect information supplied by you.
5.2 We shall hold any of your property supplied to us on your behalf (including photographs, images and copy) at your sole risk. The ownership of any digital artwork or similar items supplied by you to us will remain with you.
6.1 Ownership of the goods shall not pass upon delivery, but shall remain with us until full payment for all monies owing by you to us has been made. Until all monies have been paid:
(a) you hold the goods supplied as fiduciary for us;
(b) if you resell the goods supplied, the proceeds of any resale will belong to us and you will pay the same into a separate account for which separate records are kept and all claims which you hold against third parties will be handed over to us; and
(c) if any of the goods become part of a product or mass (through or by whatever process) such that the identity of those goods is lost in the product or mass, the security interest continues in the accession in accordance with the PPSA.
6.2 Ownership of our Intellectual Property remains with us and you must not copy or reproduce (whether digitally, electronically, in hard copy or by any means whatsoever) or in any way use any of our Intellectual Property for anything other than the purpose for which the goods were ordered. Where we provide you with original artwork, photography, advertisements, internet websites or printed material, any copyright in the final work shall be owned by us until such time as payment for such work has been made in full at which time the copyright in the final work shall vest jointly in you and us.
7. LIMITATION OF LIABILITY
7.1 We shall not be responsible to you for any delay in carrying out any instructions received or providing any goods to you within any set timeframe. In addition, we shall not be responsible for any delay, default, loss or damage due to any acts of God, equipment failure, industrial disputes, accidents, theft or damage or the actions of third parties including contractors.
7.2 We make no representation as to the originality of any ideas, suggestions, concepts, proposals, plans nor as to the ownership of any copyright in the ideas or their suitability for specific market requirements.
7.3 We shall not be liable for errors in the finished work where a proof has been submitted to and approved by you. We do not guarantee that final production of any proofs will be identical to proofs we have previously provided to you.
7.4 All warranties implied by law or by customary practice are excluded to the extent legally permitted. Our liability in relation to goods supplied is limited to direct loss caused by our breach of these terms up to a maximum of 20% of the contract value of the goods supplied. We shall not otherwise be responsible for any cost, loss, damage or claim arising directly or indirectly in relation to goods supplied by us, whether arising in contract, tort or otherwise.
8. PPSA AND GRANT OF SECURITY INTEREST
8.1 Security: You acknowledge and agree that by assenting to these Terms, you grant a security interest (by virtue of the retention of title clause in clause 6.1 of these Terms) to us in all goods supplied by us to you previously and in the future, until the purchase price for the goods has been paid in full and received by us.
8.2 Financing statement: You undertake to:
(a) Sign any further documents and/or provide any further information (which information you warrant to be complete, accurate and up-to-date in all respects) which we may reasonably require to enable registration of a financing statement or financing change statement on the Personal Property Securities Register;
(b) Not register a financing change statement or a change demand in respect of the goods without our prior written consent; and
(c) Give us not less than 14 days prior written notice of any proposed change in your name or any other changes in your details (including but not limited to your address, facsimile number, trading name or business practice);
(d) You shall not agree to allow any person to register a financing statement over any of the goods supplied by us without our prior written consent and will immediately notify us if you become aware of any person taking steps to register a financing statement in relation to such goods.
(e) You irrevocably grant to us the right to enter upon your property or premises, without notice, and without being in any way liable to you or to any third party, if we have cause to exercise any of our rights under section 109 of the PPSA, and you shall indemnify us from any claims made by any third party as a result of such exercise.
8.3 Waiver and contracting out:
(a) Unless otherwise agreed to in writing by us, you waive the right to receive a verification statement in respect of any financing statement or financing change statement relating to the security interest.
(b) You agree that nothing in sections 114(1)(a), 116, 117(1)(c), 119, 120(2), 121, 125, 126, 127, 129, 131, and 132 of the PPSA will apply to these Terms, or the security interest under these Terms.
9. GENERAL TERMS
9.1 Client location: Tactix Limited is a company registered in New Zealand and the TACTIX® product is available only to clients operating in New Zealand. Please contact us directly to discuss your requirements if you are not a resident of New Zealand or a company or other entity registered or located in New Zealand.
9.2 Cancellation: You may not cancel any order or part order for goods without our written consent. If you attempt to do so, we may (in addition to any other rights we might have) retain any deposit paid. We have the right to cancel any order for goods which we have accepted if, due to circumstances beyond our control, it would be impractical or unreasonable to fill the order, if any information supplied by you is materially incorrect. If you instruct us to suspend your work for a period of 30 days or more, we shall be entitled to payment in full for all work in progress at the time of suspension. We may revise the quotation for the uncompleted portion of the order before proceeding.
9.3 Waiver or variation: Waiver or variation of these Terms by us will only be effective if given in writing by an authorised person. If we waive any of these Terms, the waiver will not affect our rights under these Terms at any future time.
9.4 Governing law: These Terms will be interpreted in accordance with and governed by the laws of New Zealand, and the New Zealand courts will have exclusive jurisdiction in respect of all matters between us.
9.5 Privacy Act 1991: You authorise us to collect and hold personal information from any source we consider appropriate to be used for the purposes of providing goods and services to you, for determining credit worthiness, for communicating promotional activities and product information, for debt collection purposes, or for any other related purpose. You further authorise us to disclose personal information held by us for the purposes set out above to any other parties. You understand that you have a right of access and may request correction of personal information held by us about you.
9.6 Consumer Guarantees Act 1993: The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the customer acquires goods and services from us for the purposes of a business in terms of section 2 and 43 of that Act.