1.1 “VIRTUALeyes” shall mean VIRTUALeyes Limited, or any agents or employees thereof.
1.2 “Customer” shall mean the customer, any person acting on behalf of and with the authority of the customer, or any person purchasing goods from VIRTUALeyes.
1.3 “Goods” shall mean all goods, digital electronic information transmitted or stored, film work, proofs, printed matter, or design services provided to the customer, all charges for labour and work, insurance charges, or any fee or charge associated with the supply of goods by VIRTUALeyes to the customer.
1.4 “Price” shall mean the cost of the goods as agreed between VIRTUALeyes and customer subject to clause 5 of this contract.
2. FORMATION OF CONTRACT
2.1 The contract of sale shall arise upon the acceptance of the customer’s order by VIRTUALeyes. The contract shall bind the parties and their successors and assignees.
3.1 Any instructions received by VIRTUALeyes from the customer for the supply of goods shall constitute acceptance of the terms and conditions contained herein.
4. USE OF INFORMATION
4.1 The customer authorises VIRTUALeyes to collect, retain and use any information about the customer, or for the purpose of assessing the custome’s credit worthiness, enforcing any rights under this contract, or marketing any goods and services provided by VIRTUALeyes to any other party.
4.2 The customer authorises VIRTUALeyes to disclose any information obtained to any person for the purposes set out in clause 4.1.
4.3 Where the customer is a natural person the authorities under clauses 4.1 and 4.2 are authorities or consents for the purposes of the Privacy Act 1993.
5.1 Where no price is stated in writing or agreed to orally the goods shall be deemed to be sold at the current amount as such goods are sold by VIRTUALeyes at the time of the contract.
5.2 The price may be increased by the amount of any reasonable increase in the cost of supply of the goods that is beyond the control of VIRTUALeyes between the date of the contract and delivery of the goods.
6. PLACING AN ORDER
6.1 Any order made by the customer (whether verbal or written) shall be taken as an offer incorporating the terms and conditions contained in this contract.
6.2 All orders accepted by VIRTUALeyes are subject to availability of raw materials sourced from overseas AND VIRTUALeyes shall not be liable for any delay or failure to perform its obligations arising from the availability or otherwise of any such materials.
6.3 Any order made and accepted shall not be varied without the agreement of VIRTUALeyes prior to commencement of production of the goods.
7.1 Payment for goods shall be made by way of a 30% deposit on the pick up or delivery of the goods with the balance to be paid in full on or before the 20th day of the month following the date of the invoice, or on receipt of delivery of goods, whichever is the earlier (“the due date”).
7.2 Interest may be charged on any amount owing after the due date at the rate of 2.5% per month or part month.
7.3 Any expenses, disbursements and legal costs incurred by VIRTUALeyes in the enforcement of any rights contained in this contract shall be paid by the customer, including any reasonable solicitor’s fees or debt collection agency fees.
7.4 Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
8.1 Where a quotation is given by VIRTUALeyes for goods:
8.1.1 The quotation shall be valid for one month from the date of issue; and
8.1.2 The quotation shall be exclusive of Goods and Services Tax unless specifically stated to the contrary.
8.2 Where goods are required in addition to the quotation the customer agrees to pay for the additional cost of such goods.
9.1 The goods remain at Virtualeye’s risk until the delivery to the customer, but when title passes to the customer pursuant to clause 11.1 of this contract the goods are at the customer’s risk whether delivery has been made or not.
9.2 Delivery of goods shall be deemed complete when VIRTUALeyes gives possession of the goods for delivery to the customer, or possession of the goods is given to a common carrier, or other bailee for the purposes of transmission to the customer.
9.3 The time agreed for delivery shall not be an essential term of this contract unless the customer gives written notice to VIRTUALeyes making time of the essence.
9.4 Where VIRTUALeyes delivers goods to the customer by instalments and VIRTUALeyes fails to deliver one or more instalments the customer shall not have the right to repudiate the contract but shall have the right to claim compensation as a severable breach.
10.1 The customer authorises VIRTUALeyes to contract either as principal or agent for the provision of goods that are the matter of this contract or for the transportation or delivery of goods to the customer or any person specified by the customer.
10.2 Where VIRTUALeyes enters into a contract of the type referred to in clause 10.1 it shall be read with and form part of this agreement and the customer agrees to pay any amounts due under that contract.
11.1 If the goods are ascertained and in a deliverable state, title in the goods passes to the customer when the customer has made payment for all goods supplied by VIRTUALeyes.
11.2 Where the customer has not paid for any goods in its possession property in such goods shall remain with VIRTUALeyes and:
11.2.1 The goods shall be held by the customer as bailee; and
11.2.2 If the goods are attached, fixed, or incorporated into any property of the customer, by way of any manufacturing or assembly process by the customer or any third party, title in the goods shall remain with VIRTUALeyes until the customer has made payment for all goods, and where those goods are mixed with other property so as to be part of or a constituent of any new goods, title to these new goods shall deemed to be assigned to VIRTUALeyes as security for the full satisfaction by the customer of the full amount owing between VIRTUALeyes and customer.
11.3 The customer gives irrevocable authority to VIRTUALeyes to enter any premises occupied by the customer, at any reasonable time, to remove any goods not paid for in full by the customer. VIRTUALeyes shall not be liable for costs, damages or expenses or any other losses incurred by the customer or any third party as a result of this action, nor liable in contract or in tort or otherwise in any way whatsoever.
12. RETURN OF GOODS
12.1 The customer shall be deemed to have accepted the goods unless the customer notifies VIRTUALeyes otherwise within 7 days of delivery of the goods to the customer.
12.2 If the goods are not accepted according to clause 12.1 of this contract the customer shall pay for the delivery of the returned goods to VIRTUALeyes whereby the customer shall be entitled to a credit for the purchase price of any such goods at VIRTUALeyes discretion.
13.1 Except as otherwise provided by statute VIRTUALeyes shall not be liable for:
13.1.1 Any loss or damage of any kind whatsoever whether suffered or incurred by the customer or another person whether such loss or damage arises directly or indirectly from goods or services or advice provided by VIRTUALeyes to the customer and without limiting the generality of the foregoing of this clause VIRTUALeyes shall not be liable for any consequential loss or damage of any kind including without limitation any financial loss; and
13.1.2 Except as provided in this contract VIRTUALeyes shall not be liable in contract, or in tort, or otherwise for any loss, damage, or injury beyond the value of the goods provided by VIRTUALeyes to the customer; and
13.1.3 The customer shall indemnify VIRTUALeyes against all claims of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of VIRTUALeyes or otherwise, brought by any person in connection with any matter, act, omission, or error by VIRTUALeyes its agents or employees in connection with the goods.
14. CONSUMER GUARANTEES ACT
14.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the customer acquires goods or services from VIRTUALeyes for the purposes of a business in terms of section 2 and 43 of that Act.
15. COPYRIGHT AND INTELLECTUAL PROPERTY
15.1 VIRTUALeyes owns, and has copyright in all work, art, film, tooling, drawings, specifications, models, photographs, documents, and software produced by it in connection with the services that form the subject of this contract and the client may use them only if paid for in full and for the purpose for which they were intended and supplied by VIRTUALeyes.
15.2 VIRTUALeyes takes every care in producing original creative design concepts, however it is the clients responsibility to research through design, brand, copyright, advertising & trademark legal advisers as to the possibility of accidental conflict with existing products/designs in circulation with any designs produced by VIRTUALeyes for it clients. VIRTUALeyes will not accept liability in relation to costs or legal action taken upon VIRTUALeyes or clients of VIRTUALeyes over the use of any visual elements contained within a design assignment.
16.1 No representation, condition, warranty. or premise expressed or implied by law or otherwise applies to goods except where goods are supplied pursuant to the Consumer Guarantees Act 1993 or except where expressly stated in this contract.
16.2 VIRTUALeyes does not provide any warranty that the goods are fit and suitable for the purpose for which they are required by the customer and shall not be liable if they are not.
16.3 VIRTUALeyes may, at their sole discretion, provide a written warranty of up to three years on certain goods supplied however this warranty will in no way create any liability for consequential loses.
16.4 The customer warrants and undertakes to VIRTUALeyes that there is no statement, or representation or information in any material supplied by the customer that is or is likely to be misleading or deceptive or in any way infringe the Fair Trading Act 1986, or is in full or part defamatory, libellous, or slanderous, or in breach of copyright, trademark or other intellectual property right, or is otherwise in breach of any statute, regulation, rule or law.
17.1 VIRTUALeyes shall, without any liability, and without any prejudice to any other right it has in law or equity, have the right by notice to suspend or cancel in whole or in part any contract for the supply of goods to the customer if the customer fails to pay any money owing after the due date or the customer commits an act of bankruptcy as defined in section 19 of the Insolvency Act 1967.
17.2 Any cancellation or suspension under clause 17.1 of this agreement shall not affect Virtualeye’s claim for money due at the time of cancellation or suspension or for damages for any breach of any terms of this contract or the customer’s obligations to VIRTUALeyes under this contract.
18. PROOF APPROVAL
18.1 VIRTUALeyes shall not be liable for errors in the finished work where a proof has been submitted to and approved by the customer. All proofs, including proofs subsequent to amendments or alterations, shall be charged to the customer.
19.1 The customer shall not assign all or any of its rights or obligations under this contract without the written consent of VIRTUALeyes.
19.2 VIRTUALeyes shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
19.3 VIRTUALeyes may refuse or reject any material supplied to it by the customer without any reason being given to the customer.
19.3 Failure by VIRTUALeyes to enforce any of the terms and condition contained in this contract shall not be deemed to be a waiver of any of the rights or obligations VIRTUALeyes has under this contract.
19.4 The law of New Zealand shall apply to this contract except to the extent expressly negatived or varied by this contract.
19.5 Where the terms of this contract are at variance with the order or instruction from the customer, this contract shall prevail.
19.6 Any personal guarantee made by any third party shall not exclude the customer in any way whatsoever from the liabilities and obligations contained in this contract. The guarantors and customer shall be jointly and severally liable under the terms and conditions of this contract.
19.7 If any provision of this contract shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.