1. Terms of Trade

1.1 The terms and conditions set out below apply to every supply of Goods and Services made by Cranium Signage Ltd to the Customer. By placing an Order with Cranium Signage Ltd the Customer agrees that it is bound by these Terms of Trade and that the Customer’s own terms and conditions do not apply.

  1. Definitions

2.1 Credit Account means the account for purchasing goods on credit held by the Customer with Cranium Signage Ltd. Customer means the person who purchases Goods or Services from Cranium Signage Ltd, and includes the Customers’ employees, contractors, subcontractors and agents. Where the Customer comprises two or more persons, means those persons jointly and severally. Goods means any goods provided and/or manufactured by Cranium Signage Ltd. PPSA means the Personal Property Securities Act 1999. Order means an agreement between Cranium Signage Ltd and the Customer for Cranium Signage Ltd to supply Goods and/or Services to the Customer. Quote means a written offer from Cranium Signage Ltd to the Customer to supply Goods and/or Services for a specified price subject to the terms and conditions of such offer. Services means any services performed by Cranium Signage Ltd. Terms means the terms and conditions of the supply set out in this document, including any variation to these Terms.

  1. Orders and Quotes

3.1 These Terms apply to all Goods and Services supplied by Cranium Signage Ltd. These Terms may be modified or added to by specific terms specified by Cranium Signage Ltd in a Quote or other Order. A Customer’s acceptance of a Quote constitutes an agreement to purchase Goods or Services on the terms of that Quote and these Terms.

3.2 All Quotes are based on rates and charges in effect at the date of the Quote. Any increase in rates or charges will result in an equivalent increase in the quoted price. A Quote may be withdrawn at any time. A Quote will be valid for the term specified on the Quote. If no term is specified, the Quote is valid for 30 days.

3.3 Quotes are prepared in accordance with information provided to Cranium Signage Ltd by the Customer. Cranium Signage Ltd will not be liable nor will it be bound by the Quote where: (a) such information is inaccurate or any information omitted; (b) the Customer makes any variations to the work quoted for.

3.4 Cranium Signage Ltd may decline any Order at its sole discretion.

3.5 Any Reference and/ or Order number must be advised, in writing, at the time of acceptance. The Customer agrees that failing to provide Reference and/ or Order numbers will not delay payment in accordance with clause 5.

  1. Price

4.1 The price of Goods and Services shall be as agreed between Cranium Signage Ltd and the Customer, or in an Order or accepted Quote, as applicable. Unless otherwise stated, prices stated do not include GST or other taxes.

  1. Payments and disputes

5.1 Payment for Goods and Services charged to a Credit Account must be made in accordance with this clause 5. If the Customer does not have a Credit Account with Cranium Signage Ltd, payment must be made on placing an Order.

5.2 Unless requested otherwise, invoices will be sent electronically. All accounts must be paid by the date specified on the invoice.

5.3 If any item or part of any item in an invoice is disputed, the Customer shall notify Cranium Signage Ltd within 7 days of receiving the invoice. Payment of a disputed invoice may be deferred only in respect of the disputed part of the invoice. The remainder of the invoice must be paid in accordance with clause 5.

5.4 Cranium Signage Ltd reserves the right to restrict or withhold the supply of further Goods and Services to the Customer if these payment terms are not strictly adhered to. If the Customer defaults in making payment Cranium Signage Ltd may:

(a) charge interest on all overdue invoices at Cranium Signage Ltd’s cost of borrowing plus 5% calculated from the due date to the date of the payment; (b) charge the Customer all costs including legal fees (as between solicitor and client), debt collection charges and court costs incurred by Cranium Signage Ltd in recovering outstanding monies; and (c) cancel this agreement and/or the Customer’s right to hold a Credit Account.

5.5 From time to time we may engage the services of an invoice finance funder. The client agrees that on request, invoices will be paid to a bank account controlled by the nominated invoice finance funder on the due date. Correspondence confirming that the invoice finance facility is in place, and which bank account to pay to, will be provided in writing to you. On request by the invoice finance funder, you agree that you will sign additional documentation to confirm you will pay invoices to the invoice finance funder until advised not to, by the invoice finance funder.

  1. Security Interest

6.1 The Customer grants to Cranium Signage Ltd a security interest in the Goods as security for all amounts owing to Cranium Signage Ltd and the performance of the Customer’s obligations under these Terms.

6.2 Title of the Goods shall remain with Cranium Signage Ltd until there are no longer any amounts owing to Cranium Signage Ltd for those Goods. The Customer acknowledges receipt of these Terms of Trade and agrees that it will execute all documents required by Cranium Signage Ltd to maintain, register and enforce Cranium Signage Ltd’s security interest in respect of the Goods.

6.3 If Cranium Signage Ltd registers the security interest created by these Terms under the PPSA, the Customer waives its rights to receive a copy of the verification statements in terms of section 148 of the PPSA and also waives its rights under sections 121 and 131 of the PPSA. Cranium Signage Ltd and the Customer also contract out of Part 9 of the PPSA to the extent that the rights and obligations contained in sections 114, 125, 129, 132, 133 and 134 of that part of the PPSA do not apply as between Cranium Signage Ltd and the Customer.

6.4 The Customer agrees that:

(a) the Customer will, upon receiving a written request from Cranium Signage Ltd and at its own cost and expense, promptly deliver all or any of the Goods to Cranium Signage Ltd. If the Customer fails to deliver the Goods upon request, Cranium Signage Ltd may at any time enter into any place where the Goods are located and remove the Goods; (b) Cranium Signage Ltd may sell all or any of the Goods without giving prior notice of the sale to the Customer; (c) it shall immediately notify Cranium Signage Ltd of any change in the Customer’s name, address or contact person details.

  1. Warranties

7.1 To the extent permitted by law, all statutory, express or implied warranties by Cranium Signage Ltd including, without limitation, implied warranties of merchantability and fitness for any particular purpose are expressly excluded.

7.2 Colour and texture variations may occur in Goods due to:

(a) the use of natural materials in the manufacturing process; and (b) normal manufacturing tolerances and processes. The Customer agrees that such variations do not constitute a product defect and Cranium Signage Ltd shall not be liable for any loss or damage suffered by the Customer as a result of such variations.

  1. Limitation of liability

8.1 The liability of Cranium Signage Ltd in respect of all claims for loss, damage or injury arising from a breach of any of Cranium Signage Ltd’s obligations under these Terms or from any act or omission of Cranium Signage Ltd is limited, in each case, to the lesser of: (a) replacement or repair of the affected Goods; (b) payment of the actual cost of replacing or repairing the affected Goods; or (c) the price of the affected Goods or Services

8.2 Cranium Signage Ltd shall not be liable for any direct or indirect loss or damage (including without limitation loss of profits or savings or for any indirect or consequential loss or damage), however caused, arising out of or in connection with the supply of Goods or Services by Cranium Signage Ltd, except as set out in clause 8.1. 8.3 No action arising out of the supply of Goods or Services by Cranium Signage Ltd, regardless of form, may be brought more than six months after the Customer becomes aware, or reasonably ought to have become aware, of the circumstances giving rise to the action.

  1. Intellectual Property

9.1 All intellectual property rights in the Goods or arising out of the performance of the Services are and shall remain the property of Cranium Signage Ltd. The Customer warrants that any design or drawing provided by it does not infringe any intellectual property rights of any other person.

  1. Risk

10.1 Risk in the Goods shall pass to the Customer upon delivery as set out in clause

10.2 Delivery of Goods shall be deemed to occur at the point specified in an Order or Quote, or if no delivery point is specified, then:

(a) when the Goods arrive at the address specified by the Customer (whether or not the Customer is present to acknowledge receipt), or (b) when the Customer takes possession of the Goods, whichever occurs first.

10.3 Cranium Signage Ltd may deliver Goods by instalments. If the Customer fails to pay for an instalment on the due date Cranium Signage Ltd may suspend deliveries of future instalments.

10.4 Where Cranium Signage Ltd delivers the Goods, the Customer shall:

(a) ensure Cranium Signage Ltd has all-weather access to the site, to enable Cranium Signage Ltd to deliver the Goods safely; (b) obtain all necessary consents from the relevant local authority and inform Cranium Signage Ltd of all matters relating to such consents; c) locate, mark and advise Cranium Signage Ltd of all pipes, cabling and other utilities that are on, or near, or adjacent to the delivery point, and of any actual or possible hazard on the land where Goods are to be delivered; and

  1. d) indemnify Cranium Signage Ltd against any costs, claims and damages incurred in the delivery of the Goods including any cleaning, repairing damage to the site or delivery equipment and returning the delivery vehicle to the road, provided Cranium Signage Ltd has acted with reasonable care and skill.

10.5 The final decision on entry onto any site will be at Cranium Signage Ltd’s discretion. Failure to deliver pursuant to this clause will not be deemed to be a breach of contract by Cranium Signage Ltd.

10.6 If the Customer collects the Goods from Cranium Signage Ltd, the Customer agrees that it shall comply with Cranium Signage Ltd’s rules applicable to health and safety at Cranium Signage Ltd’s site. The Customer shall also assist Cranium Signage Ltd to provide and maintain a safe and healthy workplace where all hazards, unsafe acts and/or conditions are identified and analysed before being controlled by elimination/isolation or minimisation of the risk of harm.

  1. Returns and Cancellations

11.1 Cranium Signage Ltd is under no obligation to accept the cancellation of any Order or the return of Goods, where the manufacture and/ or installation has commenced. All cancellations must be agreed to in writing by Cranium Signage Ltd.

11.2 Goods which are damaged before delivery to the Customer may be returned for replacement or credit provided that:

(a) the Goods are returned to Cranium Signage Ltd, or Cranium Signage Ltd is requested to uplift the Goods, within 48 hours of delivery; and (b) the Goods are in their original condition and packaging as supplied.

  1. Consumer Guarantees Act 1993

12.1 Where Goods or Services are being supplied for the purposes of a business, the Customer agrees that the Consumer Guarantees Act 1993 will not apply.

12.2 Where the supply of Goods is to a Customer who is a supplier (as defined in the Consumer Guarantees Act) the Customer covenants with Cranium Signage Ltd that it will not make or allow to be made in respect of the Goods supplied any statements or representations as to quality or description other than those made by Cranium Signage Ltd. The Customer hereby indemnifies and will keep indemnified Cranium Signage Ltd against any claims, losses, damages and costs which may be made against Cranium Signage Ltd in respect of statements or representations which are made contrary to the provisions of this clause.

  1. Force Majeure

13.1 No claim or liability will arise against Cranium Signage Ltd under these Terms or any Order or Quote, if and to the extent that Cranium Signage Ltd’s failure or omission to carry out or observe any provisions of these Terms or any Order or Quote arises by reason of Force Majeure. “Force Majeure” means any event outside the reasonable control of Cranium Signage Ltd.

  1. Termination

14.1 All outstanding monies shall become immediately due and payable from the Customer, and Cranium Signage Ltd reserves the right to immediately cancel any Order and/or the Customer’s right to hold a Credit Account, if the Customer:

(a) ceases or threatens to cease carrying on business; (b) becomes unable to pay its debts as they fall due or otherwise becomes insolvent or bankrupt; (c) has a receiver or a receiver and manager appointed in relation to all or part of its assets, commences liquidation or is placed in statutory management; or (d) breaches any of these Terms and fails to remedy the breach within ten days of written notice requiring the breach to be remedied.

  1. Privacy Act 1993

15.1 The Customer authorises Cranium Signage Ltd to collect, retain and use personal information about the Customer for the following purposes: (a) assessing the Customer’s creditworthiness; (b) administering the Customers’ Orders; (c) receiving information from one or more credit reference agencies, concerning the credit history of the Customer; (d) disclosing credit-related information to, and using the credit services of, one or more credit reference agencies, on a continuing basis at any time and entirely at its discretion concerning the Customer’s credit worthiness.

15.2 For the avoidance of doubt, all authorities given above are continuing authorities, to apply throughout the duration of the trading relationship.

15.3 The Customer, if an individual, has a right of access to personal information about the Customer held by Cranium Signage Ltd and may request correction of the information.

  1. Disputes

16.1 The parties agree to use their best endeavours to promptly resolve any dispute or difference between them. If a dispute arises (“Dispute”), the party claiming that a Dispute has arisen shall serve notice on the other party stating the subject matter and details of the Dispute. After receipt of the notice, senior management of both parties shall meet within ten (10) working days and shall attempt in good faith to resolve the Dispute.

16.2 If the senior management fail to resolve the Dispute within twenty (20) working days of notice of the Dispute, either party may take such legal action including the commencement of legal proceedings as deemed appropriate or necessary to resolve or determine the Dispute.

  1. Guarantee and Indemnity

17.1 The Guarantor/s of the Customer jointly and severally unconditionally guarantee to Cranium Signage Ltd the due and punctual payment by the Customer of all outstanding monies, and agree to keep Cranium Signage Ltd fully indemnified against all damages, losses, costs and expenses arising from any failure of the Customer to pay the monies hereby guaranteed.

17.2 As between the Guarantor/s and Cranium Signage Ltd the liability of the Guarantor/s shall be deemed to be that of principal debtor. This guarantee is in addition to and not in substitution for any other security or right which Cranium Signage Ltd may have in respect to the Customer’s indebtedness and may be enforced against the Guarantor/s without first having recourse to any such securities or rights and without taking steps or proceedings against the Customer.

17.3 The liability of the Guarantor/s shall not be affected by the granting of time, credit or any indulgence or other concession to the Customer or to any person giving any similar guarantee.

17.4 The guarantee and indemnity in this clause 17 is an irrevocable and continuing guarantee and indemnity and shall remain in full force until all obligations under the Customers’ credit account have been fully paid, satisfied or performed.

  1. General

18.1 Waiver: Cranium Signage Ltd’s failure or delay to exercise or enforce any right it has under these Terms shall not operate as a waiver of Cranium Signage Ltd’s right to exercise or enforce such right or any other right in the future.

18.2 Severance: Should any part of these Terms be unenforceable such part shall be severed and the remainder of these Terms shall remain binding.

18.3 Confidentiality: Except as required by law both parties shall preserve as confidential any information of a confidential nature that they acquire in relation to the other.

18.4 Variation: Cranium Signage Ltd may at any time and in its sole discretion vary these Terms with immediate effect, by posting the revised Terms of Trade on Cranium Signage Ltd’s website at www.teamcranium.com provided that Cranium Signage Ltd shall not make any variation to the nature or extent of the security interest granted by the Customer under clause 6 without the written agreement of the Customer. Cranium Signage Ltd may notify the Customer by delivering the Customer an invoice with a notice of amendment and receipt of that invoice will be deemed acceptance by the Customer of these Terms as amended.

18.5 No Partnership: Notwithstanding any provision of these Terms, the parties agree that the relationship between them is not and shall not be construed to be a partnership.

18.6 Further Acts: The Customer shall execute all documents and do all acts and things as may reasonably be required by Cranium Signage Ltd to carry into effect the matters contemplated by these Terms.

18.7 Entire Agreement: Except as otherwise agreed in writing, including in accordance with clause 1.2, these Terms constitute the entire agreement between the parties.

18.8 Notice: Any letter or notice given under these Terms will be validly and sufficiently given if sent by pre-paid post, or electronic mail to the address details notified by one party to the other from time to time. A notice sent by post shall be deemed to have been received on the third working day following the day of posting. A notice sent by electronic mail shall be deemed to have been received on the date specified on the facsimile transmission receipt or email delivery receipt.

18.9 Jurisdiction: These Terms are governed by the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand courts.