These Terms and Conditions are the terms and conditions of trade of Hillcrest Promotions Limited ("Hillcrest", "we", "us" and "our" and such references includes our officers, employees, contractors and assignees).
Where we refer to "you" or "your" in these Terms and Conditions we mean any person that purchases, or otherwise interacts with us regarding purchasing, products from us.
Application: These Terms and Conditions, together with any other terms and conditions agreed in writing between us and you, apply to all sales of products by us to you to the exclusion of, and prevail over, all other terms and conditions (including, but not limited to, any terms you may include in a purchaser order).
Order is acceptance: The placing of an order with us will be deemed to be an acceptance by you of these Terms and Conditions, notwithstanding anything that may be stated to the contrary on your order. If you do not agree to these Terms and Conditions, you should refrain from placing any order.
Amendments: We may wish or need to change these Terms and Conditions, in whole or in part, from time to time. The date at the beginning of these Terms and Conditions will be updated to the date the changes take effect. You are responsible for ensuring you are familiar with the latest Terms and Conditions. All orders placed subsequently by you will be upon the altered or replaced terms and conditions.
Orders, Delivery and Samples
Order placement: You must place orders for the products in accordance with the procedures we advise you of from time to time.
Acceptance of orders: We may, at our sole discretion, accept or decline any order made by you for the products (even if we have provided you with a quotation). Once accepted by us (whether verbally, in writing (including by reply email) or by despatch of the products to the you), an order cannot be withdrawn or otherwise cancelled by you without our consent in writing (which may be withheld at our sole discretion). Any consent we provide may be subject to you reimbursing us for all products purchased from third parties in connection with your order, any work undertaken in connection with Artwork you require on the products, delivery costs and administration fees to cover our internal costs and expenses.
Delivery:
We will provide delivery to your billing address (or such other address we may agree in writing to deliver to) by delivery method determined by us at our sole discretion.
Any time for delivery advised, or otherwise indicated, by us to you will be approximate only (particularly for orders from overseas) as we provide no guarantee or other assurance as to delivery dates or times for the products ordered by you and we will have no liability whatsoever for any failure to deliver or for any delay in delivery. Any delay in delivery will not relieve you of your obligation to accept that delivery.
You should inspect the products immediately on taking delivery to confirm that there is no shortage or damage. However, you agree that for any order of 100 or more units of a product, there may be slight overage or underage on delivery of up to 2% of the total number of units ordered. This is to be considered as acceptable delivery of the order with no extra charges for over-supply or credit for under-supply.
No products that include any trademark(s), logo(s), branding or other artwork ("Artwork") you have requested be included on or with the products may be returned unless we have applied that Artwork contrary to your express written instructions.
Risk, loss of, or damage to, products in transit: All the products are at your sole risk immediately when they are despatched to you. All reasonable care will be taken in packaging and delivery but we accept no responsibility for breakage during transit.
Samples: We may, from time to time, supply you with samples of our products. These samples are provided are free of charge as long as they are returned to us within seven days of delivery with their original packaging. We will charge you at our standard prices (together with all delivery costs) for samples not returned within this timeframe or where the returned samples or their packaging is damaged.
Artwork
Artwork: Where we are required to apply Artwork by you to the products:
if the Artwork position(s) is not specified, we will assume it will be standard positioning which we provided to you on any product proof and/or in any final order confirmation.
we will have no responsibility or liability whatsoever if the Artwork on any products is incorrect if you have approved the proof and/or final order for the products which includes such Artwork; and
charges will be applied by us if you wish to make any changes to the Artwork you originally supply to us.
Ownership: You must ensure you own, or have the right to use, any Artwork you supply to us to be included on or with the products.
Price and Payment
Prices and other charges:
Subject to clause 4.2, the products will be purchased by you from us at our prices in force at the date of receipt of your order (even if we have provided you with a quotation). All prices are exclusive of GST unless otherwise stated.
There may be set up charges to be paid by you in connection with our supply of the products to you. These set up charges must be paid to us in addition to the price to be paid for the products.
You will be charged for our cost of delivery of the products to you in addition to the price to be paid for the products.
Any deposits requested by us, and paid by you, will be non-refundable.
Indent orders: Where we are required to purchase products from a domestic or overseas third party to satisfy your order, any price we may have quoted you for the products may increase between the date of your order and the date we deliver the products to you due to our cost of supplying you with the products increasing as a result of (amongst other things) changes to foreign exchange rates, freight and other delivery costs, export or import requirements and/or taxes, duties or levies. All such cost increases will be to your account (that is, we will increase the price we have quoted to take into account any increase in our costs).
Artwork: Where we are required to apply any Artwork to the products before delivery to you, any price we may have quoted you for the products may increase between the date of your order and the date we deliver the products due to any increase in the cost of such application.
Payment: You must pay our invoices, together with GST, as follows:
Your first three orders of products from us must be pre-paid in full before delivery of any products by us to you. Thereafter, if you have an established account with us, you must pay invoices on or before the 20th day of the month following date of invoice without set off, deduction or withholding of any kind.
If you pay an invoice by credit card, an extra fee of 3% of the total amount invoiced will be applied and must be paid by you.
Default interest: If you default, for any reason, in payment of any amount to us on the due date (time being strictly of the essence), we reserve the right to demand you pay interest at a rate of 15% per annum, calculated by us on a daily basis on the amount so unpaid from the due date until payment and compounding on a monthly basis. The charging of this interest will not limit any of our other rights or remedies in respect of your default.
Debt collection and enforcement costs: You must pay us all costs and expenses (including costs on a solicitor/client basis and debt collectors’ costs) that we incur in collecting any unpaid amount from you, or otherwise enforcing, or attempting to enforce our rights under these Terms and Conditions.
Property and Title
Property: Title to the products sold to you by us will not pass until payment in full is made of all moneys owing to us in respect of such products and until any and all other obligations under these Terms and Conditions are fulfilled by you.
Creation of security interest: You acknowledge that you have granted to us, and these Terms and Conditions create, a security interest in all the present and after acquired products supplied to you by us, and any proceeds from the sale of those products, as security for all your obligations to us pursuant to the Personal Property Securities Act 1999 (the "PPSA"), and we may register a financing statement to perfect our security interest in the products, delivered or to be delivered to you in accordance with the provisions of the PPSA.
Waiver of rights under PPSA: You waive your right to receive a verification statement in respect of any financing statement or financing change statement registered by or on behalf of us under the PPSA and agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA will apply to these Terms and Conditions, or the security under these Terms and Conditions, and you waive your rights under sections 121, 125, 129 and 131 of the PPSA.
Notification of change in name: You will immediately notify us, in writing, of any change in your name, address details and any other information provided to us to enable us to register a financing change statement if required.
Confidentiality and Intellectual Property
Confidential information: You will not, for any reason whatsoever, disclose to any person, or otherwise disclose or make use of, any confidential or secret or any other information relating to our business (including, but not limited to, our pricing terms, promotional materials and visual concepts and ideas we develop for you). You acknowledge that these matters form proprietary information which is our property.
Intellectual property: All intellectual property (including, but not limited to, promotional materials and visual concepts and ideas) which we create or otherwise develop in connection with, or in any way relating to, the provision of the products to you will belong to and be our absolute property. Accordingly, you may not utilise such intellectual property, or share it with any other person, other than in connection with our supply of the products to you.
Default
Default: If you:
breach, or fail to perform properly or promptly, any of your obligations under these Terms and Conditions and, where that breach is capable of remedy, fail to remedy the breach or perform the obligation within five working days (inclusive of the date of receipt) after receiving written notice thereof from us.
fail to pay any amount due to us in accordance with these Terms and Conditions; or
are, become, or are deemed to be, insolvent; make an assignment for the benefit of, or enter into or make any arrangement or composition with, your creditors; or go into receivership or have a receiver, administrator, trustee or statutory manager or similar official appointed in respect of you or your property, payment for all the products supplied by us to you will immediately become due and we may terminate any agreement with you in respect of the products ordered but not delivered (without limiting any of our other rights or remedies in respect of your default).
Liability and Indemnity
Liability limitation: Our liability to you or any third party in respect of any supply of the products, or for any breach of our obligations under these Terms and Conditions, whether arising in contract, tort or otherwise, is strictly limited to the purchase price of the products to which the claim relates. We will not be liable, under any circumstances, to you or any third party, for any indirect, special or consequential losses (including, but not limited to, loss of income or profits, loss of opportunity, lost savings, increased or wasted expenses, delay or lost time, loss of or damage to goodwill) in respect of the products we supply.
Indemnity: Without limiting any of our rights or remedies, you indemnify and hold us harmless, as a continuing indemnity, from all claims costs, damages, expenses, losses, penalties or other liability (including legal and other professional expenses on a full indemnity basis, GST and similar taxes) which may be sustained by, claimed against or incurred by us arising out of any breach of any of your obligations contained in, or implied by, these Terms and Conditions.
General
No representations: Unless expressly stated otherwise in these Terms and Conditions, we make no representations or warranties concerning fitness for purpose or appropriateness for your needs of any of the products, and you must assure yourself of these matters having regard to your circumstances.
Circumstances beyond control: Notwithstanding anything else herein, non-performance by us of our obligations under these Terms and Conditions will be excused, without liability for non-performance, during the time and to the extent that such performance is prevented, wholly or partly, by any cause beyond our reasonable control
Privacy: Any personal information collected by you or us in connection with our supply of products to you must only be used or disclosed for the purposes of ensuring performance of these Terms and Conditions or your orders. This may include disclosure within your or our organisations and to other parties involved in performing these Terms and Conditions or your orders.
Assignment: These Terms and Conditions are personal to you and you may not, directly or indirectly (including on a change of control), assign or otherwise transfer your rights or obligations arising therefrom to any other person without our prior consent (which may be withheld at our complete discretion).
Severability: If any part of these Terms and Conditions is held by any court to be illegal, void or unenforceable such determination will not impair the enforceability of the remaining parts of these Terms and Conditions, which will remain in full force, and such provision will be deemed to be modified to the extent necessary to render it legal, valid and enforceable.
No waiver: Our failure to insist in any instance upon strict performance by you of any term of these Terms and Conditions will not be construed as a continuing waiver of such term, or a waiver of any other term.
Governing law: These Terms and Conditions will be governed by, and construed in accordance with, the laws in New Zealand and only the New Zealand courts will have jurisdiction over any controversy or dispute arising out of or in any way connected with these Terms and Conditions.
