Terms of Trade

Please read our Terms of Trade so we can get underway.

1.1 These Terms and Conditions of Sale apply to all Goods and Services provided by TKOA Brands Limited (“the Business Advisor”) to the purchaser of those goods or services (“the Client”).

1.2 In the event that other terms and conditions are imported into any contractual documentation between TKOA Brands Limited and the Client then, unless specifically authorised in writing by a director from TKOA Brands Limited, these Terms and Conditions of Sale shall prevail.

2. Quotation

2.1 TKOA Brands Limited will not be responsible for errors or omissions due to oversight or to misinterpretation of the Client’s verbal instructions.

2.2 Quotations are only for work according to original specifications. If through the Client’s error, or omission, work has to be redone or alterations or additions to specifications are required, then TKOA Brands Limited may make an additional charge. In the event that an order is cancelled or suspended by the Client, then TKOA Brands Limited may immediately require the Client to pay for work done to the date of cancellation or suspension.

2.3 A quotation, unless previously withdrawn, is valid only for 30 days from the date it is given, unless otherwise specifically stated in the quotation form. Following this a new quotation will be required for any goods or services ordered.

2.4 TKOA Brands Limited reserves the right not to undertake any work which in its opinion is or may be unlawful, offensive, or otherwise inappropriate.

2.5 Where expedited delivery is requested by the Client, then an extra charge may be added to the quoted price.

3. Prices

3.1 The prices of goods or services supplied are as shown on TKOA Brands Limited’s quotation, acceptance order, invoice, or other document. TKOA Brands Limited reserves the right to charge for delivery, in addition to the amount shown in the quotation, acceptance of order, or other documents.

3.2 Goods and Services Tax and any other tax duty or impost necessarily incurred (other than TKOA Brands Limited’s own income tax) in the course of completing the work, shall be payable by the Client in addition to the quoted price, payable upon demand.

3.3 Quoted prices are based on the cost of materials, labour, and services as at the date of the quotation. Should there be any increase in these costs, as are necessarily incurred by TKOA Brands Limited in completing the order, then such increases may, at TKOA Brands Limited sole discretion, be added to the quoted price, payable at the same time, and in the same manner as the balance of the quoted price.

4. Payment Terms

4.1 All accounts are payable by 50% Deposit immediately following invoice. With the final balance on completion of the work.
4.2 Progress payments may be required where work is completed over an extended period of time. After work, has been in hand for one month or more, a progress payment of up to 80% of the value of the work completed may be requested. Further progress payments calculated on the same basis may be required to be paid on a monthly basis, until completion of the work.

4.3 TKOA Brands Limited may allocate any payment received from the Client against any debt owed by the Client, in any manner that TKOA Brands Limited may decide, notwithstanding any purported allegation by the Client.

5. Default & Consequences of Default

5.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at TKOA Brands Limited’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

5.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by TKOA Brands Limited.

5.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify TKOA Brands Limited from and against all costs and disbursements incurred by TKOA Brands Limited in pursuing the debt including legal costs on a solicitor and own client basis and TKOA Brands Limited’s collection agency costs.

5.4 Without prejudice to any other remedies TKOA Brands Limited may have, if at any time the Client is in breach of any obligation (including those relating to payment) TKOA Brands Limited may suspend or terminate the supply of goods to the Client and any of its other obligations under the terms and conditions. TKOA Brands Limited will not be liable to the Client for any loss or damage the Client suffers because TKOA Brands Limited has exercised its rights under this clause.

5.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00) shall be levied for administration fees which sum shall be payable each month that the debt remains overdue and become immediately due and payable.

5.6 Without prejudice to TKOA Brands Limited’s other remedies at law TKOA Brands Limited shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to TKOA Brands Limited shall, whether or not due for payment, become immediately payable in the event that:

a) any money payable to TKOA Brands Limited becomes overdue, or in TKOA Brands Limited’s opinion the Client will be unable to meet its payments as they fall due; or

b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

6. Specifications, Delivery and Installation

6.1 TKOA Brands Limited will use every reasonable endeavour to deliver every order within the time specified (if any) by the Client, but TKOA Brands Limited will not be liable for any loss or damage sustained, as a consequence of inability to do so, or any delay.

6.2 Unless specifically stated in the body of a quotation, no retentions will be recognised, nor will any other special conditions of contract affect the quotation unless stated.

7. Risk

7.1 Risk in goods will pass to the Client immediately upon delivery. TKOA Brands Limited will not be responsible for loss or damage to goods in transit, and the Client is required to insure goods against loss or other risks immediately the following dispatch.

7.2 Where the Client supplies plans, specifications, plant, goods or materials of any kind these shall be held by TKOA Brands Limited at the Client’s risk. Whilst all care will be taken by TKOA Brands Limited, no responsibility is accepted for any damage to materials during such time, and TKOA Brands Limited reserves the right to dispose of materials if they are not collected by the Client within one calendar month after the work is completed.

8. Title

8.1 TKOA Brands Limited and Client agree that ownership of goods supplied shall not pass until the Client has paid TKOA Brands Limited all amounts owing for the particular goods and TKOA Brands Limited’s other rights and remedies in respect of this security interest are as specified in Clause 11.10 herein.

8.2 Receipt by TKOA Brands Limited of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then TKOA Brands Limited’s ownership or rights in respect of the goods shall continue.

8.3 It is further agreed that:

a) where practicable the goods and services shall be kept separate and identifiable until TKOA Brands Limited shall have received payment and all other obligations of the Client are met; and

b) until such time as ownership of the goods shall pass from TKOA Brands Limited to the Client, TKOA Brands Limited may give notice in writing to the Client to return the goods or any of them to TKOA Brands Limited. Upon such notice being given the rights of the Client to obtain ownership or any other interest in the goods shall cease; and

c) the Client is only a bailee of the goods and until such time as TKOA Brands Limited has received payment in full for the goods then the Client shall hold any proceeds from the sale or disposal of the goods, up to and including the amount the Client owes to TKOA Brands Limited for the goods, on trust for TKOA Brands Limited; and

d) until such time that ownership in the goods passes to the Client, if the goods are converted into other products, the parties agree that TKOA Brands Limited will be the owner of the end products; and

e) where any amount owed between the Client and TKOA Brands Limited is overdue, then TKOA Brands Limited may enter any premises at which if believes its goods are located, to seize those goods, and to dispose of them as TKOA Brands Limited thinks fit, to apply such proceeds towards the amount then outstanding to TKOA Brands Limited. The Client hereby irrevocably authorises TKOA Brands Limited, and any of its agents or servants, to enter such premises, to locate, inspect, and/or seize such goods.

9. Warranty/Indemnity

9.1 Whilst all care and attention is undertaken by TKOA Brands Limited to deliver and/or install goods of the highest quality, and to ensure that all components (including media, artwork, design and other materials) are purchased from reputable manufacturers, TKOA Brands Limited does not guarantee the manufacture of such items. Where any defect or alleged defect is beyond the ability of TKOA Brands Limited to control quality, TKOA Brands Limited has no liability. Any defects due to faulty workmanship must be notified within 7 days after delivery. Any such defects will, at the discretion of TKOA Brands Limited, be repaired or replaced free of charge.

9.2 Other than as provided in Sub clause 9.1 hereof all warranties, representations or promises howsoever made, whether express, or implied by law are excluded and negated. In particular, where the Client acquires or holds itself out as acquiring, the goods for the purposes of a business the Consumer Guarantees Act 1993 will not apply.

9.3 Notwithstanding any other provision herein the total liability of TKOA Brands Limited will at all times be limited to replacing goods or materials or workmanship which is defective to the value received by TKOA Brands Limited under the relevant contract. No claim for consequential losses or damages of any kind will apply.

9.4 The Client will indemnify and hold harmless TKOA Brands Limited against any losses, liabilities, costs or actions suffered or incurred as a consequence of any third party claiming that work undertaken by TKOA Brands Limited is offensive or illegal, in breach of any intellectual property right, or other right which such third party may have.

10. Termination

10.1 If the Client is at any time in default of any of its obligations, covenants or agreements under these Terms and Conditions of Sale, then TKOA Brands Limited may, by notice in writing to the Client, terminate any contract.

10.2 In such event the Client shall be liable to pay for the cost of any work (including preliminary work) undertaken at that time. Such cost shall be payable as a debt due immediately upon demand.

11. General

11.1 Applicable Law/Unenforceability

11.1.1 The law applying to any contract arising between TKOA Brands Limited and the Client shall be the law of New Zealand.

11.1.2 In the event that any provision contained in these Terms and Conditions, or in any other collateral agreement or document between TKOA Brands Limited and the Client is deemed illegal or unenforceable, then such provision shall be deemed to be excluded therefrom, but only to the extent required to remedy the illegality or unenforceability, and these terms and conditions, and such collateral document shall in all other respects apply in accordance with their stated terms.

11.2 Assignment

11.2.1 TKOA Brands Limited is entitled at any time to assign to any other party all or any part of a debt which is owing to TKOA Brands Limited.

11.2.2 TKOA Brands Limited may also assign or sub-contract any part of the work which is to be performed under any contract

11.2.3 In respect of such assignment (in either case) the assignee shall be entitled to the full rights of TKOA Brands Limited previously applying.

11.3 Set-Off

11.3.1 TKOA Brands Limited (or any such assignee) shall be entitled to set off against any monies which may be or may be alleged to be owing to the Client, the amount of any debt incurred or payable by the Client to TKOA Brands Limited, or to such assignee.

11.4 Waiver

11.4.1 All rights, powers and entitlements of TKOA Brands Limited at law in respect of any contract shall remain in full force, notwithstanding any neglect, forbearance, delay, or waiver by TKOA Brands Limited in enforcing them.

11.4.2 In the event that TKOA Brands Limited waives or is deemed to have waived any condition, then unless such waiver is in writing and signed by the director of TKOA Brands Limited, no such waiver shall be accepted. If

accepted, such waiver shall apply only to the extent that it is specifically given and shall not be deemed to affect any other dealing or matter between the Client and TKOA Brands Limited.

11.5 Authority to Sign

11.5.1 The person signing any quotation on behalf of the Client acknowledges that they have authority to bind the Client.

11.5.2 In the event that, due to alleged deficiency in such authority, the Client is not liable then the person signing will be personally liable for payment of the debt arising.

11.6 Intellectual Property Rights

11.6.1 Unless it is specifically agreed in writing to the contrary TKOA Brands Limited retains all intellectual property rights, including copyright, patents, registered designs, or protection of confidential information in respect of any works undertaken by TKOA Brands Limited for the Client.

11.6.2 The Client will at all times keep TKOA Brands Limited advised of any infringement or potential infringement by a third party of TKOA Brands Limited’s intellectual property rights.

11.6.3 The Client will also immediately advise TKOA Brands Limited of any alleged infringement by TKOA Brands Limited of a third party’s intellectual property rights. The Client will indemnify and hold harmless TKOA Brands Limited against any losses, costs, actions or liabilities suffered or incurred as a consequence of such infringement or alleged infringement.

11.7 Right of Variation

11.7.1 TKOA Brands Limited reserves the right at any time to vary these Terms and Conditions of Sale, by notification to its customers.

11.8 Disputes

11.8.1 In the event of any dispute arising between TKOA Brands Limited and the Client, such dispute shall in the first instance be referred to mediation for resolution.

11.8.2 In the event that resolution by such manner is not achieved to the satisfaction of both parties within 30 days of referral to mediation, then either party may take legal action to resolve the dispute.

11.8.3 Nothing in this clause prevents TKOA Brands Limited from taking legal action to enforce payment of any debt due, nor where required to seek interlocutory or injunctive relief.

11.9 Privacy Act

11.9.1 In relation to the Privacy Act 1993 the Client acknowledges that:

a) Personal information collected or held by TKOA Brands Limited may be held, used or disclosed for any of the following purposes: administering (whether directly or indirectly) contracts or enforcing rights under contracts, marketing goods and services from time to time (including through TKOA Brands Limited’s Office or any other of TKOA Brands Limited offices), ascertaining at any time the Client’s creditworthiness, and obtaining credit reports, character references or credit statements, enabling TKOA Brands Limited to notify any credit agency of any application for credit or default on

any obligation of the Client to TKOA Brands Limited, and enabling TKOA Brands Limited to provide such personal information to any credit agency. Also, enabling TKOA Brands Limited to communicate with the Client for any purpose.

b) Such personal information (where applicable) is collected by and will be held by TKOA Brands Limited whose address is specified in the quotation. The Client has the right under the Privacy Act to obtain access to, and request correction of, any personal information held by TKOA Brands Limited.

c) The Client authorises TKOA Brands Limited at any time to obtain from any person or entity any information which TKOA Brands Limited requires to process and/or accept any application for credit.

d) The Client authorises any person to release to TKOA Brands Limited for the purpose of establishing the Client’s creditworthiness any personal information that person holds concerning the Client.

e) If the Client fails to provide any information requested by TKOA Brands Limited in respect of any application for credit, such credit may not be provided.

11.10 Personal Property Securities Act (“PPSA”)

11.10.1 In respect of the security interest created by Clause 8.1 herein and upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:

(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and

(b) a security interest is taken in all goods previously supplied by TKOA Brands Limited to the Client (if any) and all goods that will be supplied in the future by TKOA Brands Limited to the Client.

11.10.2 The Client undertakes to:

(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which TKOA Brands Limited may reasonably require registering a financing statement or financing change statement on the Personal Property Securities Register;

(b) indemnify, and upon demand reimburse, TKOA Brands Limited for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any goods charged thereby;

(c) not register a financing change statement or a change demand without the prior written consent of TKOA Brands Limited; and

(d) immediately advise TKOA Brands Limited of any material change in its business practices of selling the goods which would result in a change in the nature of proceeds derived from such sales.

11.10.3 TKOA Brands Limited and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.

11.10.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.

11.10.5 Unless otherwise agreed to in writing by TKOA Brands Limited, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.

11.10.6 If TKOA Brands Limited at any time does not have priority over all secured parties in relation to any goods then, pursuant to Section 107(1) of the PPSA, for the purposes of dealing with those goods the Client and the Business

Advisor specifically contract out of Sections 108 and 109 of the PPSA, to the extent of replacing the words “a secured party with priority over all other secured parties”, in each case, with “TKOA Brands Limited”.

11.10.7 The Client shall unconditionally ratify any actions taken by TKOA Brands Limited under clauses 11.10.1 to 11.10.6