Terms and Conditions of Trade

1.1 In these terms and conditions unless the context otherwise requires:

“We” and “Brandstand” means Brandstand Limited (and any related company) and its successors and assigns;

“Confidential Material” means:

(a) All information and other material relating to Brandstand, its employees, Goods and Services which are made available to the Customer, or have previously made available to the Customer; or

(b) Any report or material which we produce as a direct or indirect result of any work that we carry out for the Customer, and anything that the Customer derives from this information and material but excluding everything which:

i. Is generally available to the public (but not because the Customer or anyone the Customer is responsible for has disclosed or allowed to be disclosed);

ii. The Customer or a third party have independently developed or acquired, except where this was derived from information sourced from Brandstand which otherwise comes within this definition of Confidential Material.

“Customer” means the customer contracting with Brandstand and the Customer’s successors and permitted assigns;

“Default” means each of the events set out in clause 8.6;

“Goods” means all goods supplied by Brandstand to the Customer from time to time, provided that:

(a) Solely for the application of the PPSA, where the Goods supplied are the Customer’s inventory, all references to Goods shall, in respect of those Goods, be read as references to inventory while they are held as inventory; and

(b) Where the Goods supplied are not or are no longer held as the Customer’s inventory, all references to Goods shall, in respect of those Goods, mean the Goods described in any relevant order form, packing slip or invoice (or its equivalent, whatever called) prepared by Brandstand and relating to those Goods, on the basis that each such order form, packing slip or invoice (or its equivalent) is deemed to be assented to by the Customer, incorporated in and form part of, these terms and conditions, and (unless the context requires otherwise) includes all proceeds of such Goods and any product or mass which the Goods subsequently become part of.

“Services” means all the services supplied by Brandstand to the Customer and includes any advice or recommendations from time to time; and

“terms and conditions” means these terms and conditions of trade between Brandstand and the Customer incorporating these terms and conditions, new account application, application for credit and any other terms and conditions between Brandstand and the Customer.

1.2 The Goods and Services are supplied on these terms and conditions of trade. No variation of these terms and conditions is permitted unless Brandstand has agreed in writing to such variation. These terms and conditions of trade prevail over the terms of any purchase order or any other terms of contract submitted by the Customer.

2.1 To order Goods and or Services from Brandstand, the Customer shall need to be currently approved by Brandstand for credit purposes, unless Brandstand reaches an alternative payment arrangement with the Customer.

2.2 Brandstand reserves the right to refuse credit to the Customer without being obliged to provide reasons for such refusal. In the event that credit is refused all orders by the Customer must be paid by bank cheque or by direct credit to our nominated bank account or in cash, prior to delivery.

Any instructions received by Brandstand from the Customer for the supply of Goods and Services shall constitute acceptance of these terms and conditions of trade.

Brandstand reserves the right to refuse to accept any order or any part of an order, and to deliver any Goods by instalments, in which case any instalment will comprise a separate contract and shall be paid for as if it was a separate order.

Brandstand shall have the sole discretion to determine the amount of credit extended to the Customer at any time.

5.1 The prices of the Goods and Services supplied by Brandstand are subject to alteration by Brandstand without notice.

5.2 The Customer agrees to pay the freight costs on all Goods delivered to the Customer, or as the Customer may direct, by Brandstand.

6.1 All accounts rendered by Brandstand to the Customer shall be paid in full in accordance with the timeframe specified in invoices provided to the Customer. In the event that payment is not made by such date then the Customer is in Default pursuant to clause 8.6(a) of the terms and conditions and consequences of default as proscribed in clause 9 become applicable. Brandstand may also remove any price discounts provided at the time of invoicing should payment not be forthcoming in the time frame specified on the invoice.

6.2 Payment shall be made by the Customer in cleared and immediately available funds, without set-off, counter-claim, deduction or withholding, except as is permitted by law.

7.1 Brandstand agrees to supply all orders to the Customer or as the Customer may direct as soon as practicable following receipt of orders from the Customer.

7.2 Orders for goods cannot be cancelled by the Customer if the Customer wishes to cancel the orders more than 14 days after the goods were ordered. Goods that have been manufactured or customised to meet the requirements of the customer cannot be cancelled after 5 working days.

7.3 If any order for Goods and Services is cancelled under clause 7.2 or is cancelled by Brandstand at any stage prior to delivery or performance of the Goods and Services the Customer shall remain liable to make payment for all work undertaken by Brandstand up to the time of cancellation.

7.4 In the event that any goods supplied by Brandstand are faulty, Brandstand agrees to pay to the Customer the replacement value of the faulty goods and will not be liable for any damage loss or injury arising from use of any goods.

8.1 The Customer grants to Brandstand a purchase money security interest (“PMSI”) in the Goods and agrees that the PMSI has attached to all Goods supplied now or in the future to the Customer by Brandstand and that the attachment of the PMSI has in no way been deferred or postponed from the date of these terms and conditions.

8.2 Title in any Goods and Services supplied by Brandstand passes to the Customer only when the Customer has made payment in full for all Goods and Services provided and of all other sums due to Brandstand by the Customer on any account whatsoever. Until all sums due to Brandstand have been paid in full, Brandstand has a security interest in all Goods and Services provided to the Customer.

8.3 Without limitation to any other rights afforded to Brandstand under the PPSA, until the Customer has paid for the Goods and Services in full:

(a) The Goods shall be held as fiduciary bailee for and on behalf of Brandstand;

(b) If the Goods are sold by the Customer before payment in full to Brandstand then the proceeds of sale (less any mark-up imposed by the Customer on such sale) shall be held in trust by the Customer for Brandstand in a separate bank account; and

(c) The Goods shall be stored in such a way to ensure that they are identifiable as the separate property of Brandstand.

8.4 If the Goods and Services are attached, fixed or incorporated into any property of the Customer or any third person, by way of any manufacturing or assembly process by the Customer or any third party, title to the Goods and Services shall remain with Brandstand until payment has been made in full, and where those Goods and Services are mixed with other property so as to be part of or constituent of any new products, title to those new products shall be deemed to be assigned by the Customer to Brandstand as security for the full satisfaction by the Customer of all amounts owed by the Customer to Brandstand.

8.5 The Customer hereby irrevocably grants Brandstand and its agents authority to enter any premises owned or occupied by the Customer or on which Goods and Services are situated at any reasonable time after Default by the Customer or before Default if Brandstand believes that a Default is likely and to remove and repossess any Goods and Services and any other property to which the Goods and Services are attached or in which the Goods and Services are incorporated. Brandstand shall not be liable for any costs, damages, expenses or losses suffered or incurred by the Customer or any third party as a result of this action, nor will Brandstand be liable to the Customer or such third parties in contract, tort or otherwise in any way unless by statue such liability cannot be excluded. Brandstand may (at its sole option) either resell any repossessed Goods and Services and credit the Customer’s account with the net proceeds of sale (after deduction of all repossession, storage and selling costs) or may retain any repossessed Goods and Services and credit the Customer’s account with the invoice value thereof less such sum as Brandstand reasonably determines on account of wear and tear, depreciation, obsolescence, loss or other costs.

8.6 Each of the following shall constitute a Default by the Customer:

(a) Non payment of any sum by the due date;

(b) The Customer intimates that it will not pay any sum by the due date;

(c) Failure by the Customer to comply with any obligations imposed on it under these terms and conditions of trade;

(d) Any Goods are seized by any other creditor of the Customer;

(e) Any Goods are materially damaged after delivery to the Customer and before payment in full has been made by the Customer;

(f) The Customer is declared bankrupt, is placed in liquidation or voluntary administration or a receiver or administrator is appointed to any of the Customer’s assets;

(g) A material adverse change in the financial position of the Customer occurs (as reasonably determined by Brandstand).

8.7 If a Default occurs all amounts owing by the Customer shall be immediately due and payable and Brandstand shall be entitled to enforce all rights available to it under these terms and conditions of trade, at the cost, risk and responsibility of the Customer in all respects.

8.8 The Customer undertakes to sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Brandstand may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register in respect of the PMSI granted to Brandstand under clause 8.1.

8.9 The Customer waives its rights as a debtor under sections 114(1)(A), 116, 120(2), 121, 125, 126, 127, 129, 131, and 132 of the PPSA.

8.10 Unless otherwise agreed to in writing by Brandstand, the Customer waives its right to receive verification statements and financing change statements under the PPSA.

8.11 If the Credit (Repossession) Act 1997 applies to any transaction between the Customer and Brandstand, the Customer has the rights provided for in such Act to the extent that they are inconsistent with anything in these terms and conditions of trade and cannot be contracted out of.

9.1 If the Customer fails to make payment of any amount by the due date interest (calculated daily from the due date until the date that payment is made in full to Brandstand) shall accrue and be payable on the overdue amount at the rate of 2.5% per calendar month. Such interest shall compound monthly at such a rate after as well as before any judgment.

9.2 If the Customer defaults in payment of any amount when due, the Customer shall indemnify Brandstand from and against all costs and disbursements incurred by Brandstand (including solicitor/client costs on a full indemnity basis and collection agency costs), arising from, or consequent on, enforcement and/or collection of the overdue amount.

9.3 If a Default occurs, then without prejudice to any other rights of Brandstand under these terms and conditions of trade or at law Brandstand may, in its sole discretion:

(a) Suspend or terminate the supply of Goods and Services to the Customer and any of Brandstand’s other obligations under these terms and conditions of trade.; and/or

(b) Cancel all or any part of any order of the Customer which remains unperformed.

9.4 Brandstand will not be liable to the Customer for any loss or damage the Customer suffers as a result of any exercise by Brandstand of its rights under this clause 9.

9.5 Brandstand’s rights under this clause 9 are in addition to and not in substitution for any other rights Brandstand may have at law.

10.1 Where the Customer is not a “Consumer” (as that term is defined in the Consumer Guarantees Act 1993) or where the Customer holds themselves out as acquiring goods for the purpose of a business then:

(a) The provisions of the Consumer Guarantees Act 1993 shall not apply;

(b) The only warranties, guarantees or undertakings Brandstand gives to the Customer in relation to the goods (whether in relation to quality, fitness for purpose or otherwise) are those which are expressly stipulated by Brandstand to the Customer in writing.

10.2 Where the Customer is a Consumer, and is not purchasing goods for the purpose of a business, then notwithstanding anything contained in these terms and conditions the Customer shall have the rights conferred on Consumers by the Consumer Guarantees Act.

11.1 The Customer irrevocably authorises:

(a) Any person or corporation to provide Brandstand such information as Brandstand may require in response to any credit enquiry in relation to the Customer;

(b) Brandstand to collect, retain and use any information about the Customer, for the purpose of assessing the Customer’s creditworthiness or marketing products and services to the Customer; and

(c) Brandstand to disclose information about the Customer, whether collected by Brandstand from the Customer directly of obtained by Brandstand 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.

11.2 Where the Customer is an individual the authorities under clause 11.1 are authorities or consents for the purposes of the Privacy Act 1993.

11.3 The Customer shall have the right to request Brandstand for a copy of the information about the Customer retained by Brandstand and the right to request Brandstand to correct any incorrect information about the Customer held by Brandstand.

12.1 The Customer authorises Brandstand to:

(a) Collect and hold credit information about the Customer received from any source. Brandstand may use this information to determine the Customer’s credit worthiness, credit history or credit capacity, for debt collection or any related purpose, or for providing the Customer about Goods and Services; and

(b) Disclose the Customer’s credit information to anyone else (including Brandstand’s related parties and shareholders) for the purposes set out in clause 12.1(a).

12.2 The Customer must notify Brandstand of any change in circumstances that may affect the accuracy of any personal or credit information that Brandstand has collected under these terms and conditions.

12.3 If Brandstand has reasonable cause to believe that the information which the Customer has supplied in these terms and conditions is incorrect or no longer correct, and the Customer fails to satisfactorily correct this information within five business days of a request being made by Brandstand, then all amounts will become immediately due and payable.

13.1 The Customer acknowledges that Brandstand (or its supplier) is the sole owner of all intellectual property (including business know-how, ideas, designs, drawings, concepts, methodologies, routines, systems and processes) relating to or arising, directly or indirectly, out of the Goods and Services supplied by Brandstand, or developed or contributed to by Brandstand in relation to any information, fault, repair, or documentation supplied by Brandstand to the Customer, or as a result of Brandstand performing Services or any other work for the Customer.

14.1 Each party agrees to keep the other’s Confidential Material confidential and not to:

(a) Use the Confidential Material for any purpose other than for the purpose of which it was supplied; or

(b) Copy or reproduce any of the Confidential Material in any way.

14.2 On request, each party will ensure that any Confidential Material (including any copies of it) that is possesses or controls and that belongs to the other party is returned to that other party.

14.3 This clause 14 shall survive the termination of this these terms and conditions.

15.1 The parties will use all reasonable endeavours to resolve any dispute between them. If the parties cannot resolve a dispute between themselves then they shall refer the dispute to mediation within seven working days of the dispute arising, to be conducted by LEADR New Zealand Limited.

16.1 If any provision of these terms and conditions of trade shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

16.2 These terms and conditions of trade 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.

16.3 In the event of any breach of these terms and conditions of trade by Brandstand the remedies of the Customer shall be limited to damages. Under no circumstances shall the liability of Brandstand exceed the price of the Goods and Services paid by the Customer.

16.4 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 Brandstand.

16.5 Bandstand may assign its rights under these terms and conditions of trade and under any contract formed with the Customer and may sub-contract all or any part of its rights and obligations, in each case without the Customer’s consent.

16.6 Brandstand reserves the right to review and amend these terms and conditions of trade at any time. If, following any such review, there is to be any change to these terms and conditions of trade, then these changes will be made within this online document.

16.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.