Terms and Conditions

1.    DEFINITIONS

1.    “CodeM” shall mean Code M Limited, its permitted assigns and successors, or any agents or employees of CodeM as appropriate.

2.    “Customer” shall mean the customer as described in this agreement, any person acting on behalf of and with the authority or apparent authority of the customer, or any person purchasing goods and services from CodeM.

3.    “Services” shall mean all goods and services supplied by CodeM to the Customer; and all charges identified in any invoice issued by CodeM to the Customer, which invoices are deemed to be incorporated into and form part of this agreement; and also means all services and advice provided by CodeM to the Customer and shall include without limitation the creation and design of advertising, printing and display materials including technical advice and all charges for labour, hire charges, insurance charges, freight costs, or any fee or charge associated with the supply of Services by CodeM to the Customer.

4.    “Price” shall mean the cost of the Services as agreed between CodeM and the Customer in this agreement and includes all disbursements CodeM pays to third parties on the Customer’s behalf.
 

2.    ACCEPTANCE

1.    Any verbal or written instructions received by CodeM from the Customer for the supply of Services shall constitute an acceptance of these terms and conditions.

2.    All orders on printed or promotional materials received are subject to a 5% under- run or over- run. Errors and omissions excepted.

3.    Confirmed orders for printed or promotional materials cannot be cancelled
 

3.    QUOTATION AND PRICE

1.    All prices exclude GST unless stated otherwise.

2.    Quotes given by CodeM for Services shall be valid for 21 days from the date of issue unless agreed otherwise by the parties in writing.

3.    CodeM reserves the right to alter the quotation at any time because of circumstances beyond its control or if the Customer varies its original requirements.

4.    Estimates are provided as a guideline only.

5.    The price may be increased by the amount of any reasonable increase in the cost of supply of the Services that is beyond the control of CodeM between the date of the contract and delivery of the Services.

6.    Where no price is stated in writing or orally agreed the Services shall be deemed to be sold at the current amount as such Services are sold by CodeM at the time of this agreement.

7.    Where the Customer wishes to vary an order;

a.    The Customer must submit a written request to CodeM outlining the requested variation;

b.    CodeM must within three (3) working days, notify the Customer of any extensions to time to carry out the order, of any additional costs arising from carrying out the variation and any change to the Price;

c.     The Customer has two (2) working days from receiving CodeM notice to accept those matters set out in CodeM’s notice;

d.    If the Customer does not respond within the stipulated timeframe or specifically accepts the matters set out in CodeM’s notice, then the exchange of notices shall be deemed to be an agreed variation.
 

4.    CHARGES AND PAYMENT

1.    Where the Customer holds a trade account with CodeM, on or before the 20th day of the month following the date of the invoice; in each case the “due date”.  All other accounts will be paid prior to the delivery

2.    Unless otherwise agreed, payment for Services shall be made in full without set off or deduction.

3.    If the Customer fails to make payment by the due date, the Customer shall pay interest on the amount outstanding at the rate of 2.0% per month or part month until the date that payment is made.  The Customer shall pay all expenses, disbursements and costs (including legal costs on a client/solicitor basis) that are incurred by CodeM in the enforcement of any rights contained in this agreement.

4.    Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.

5.    A deposit may be required in CodeM’s sole discretion.

6.    CodeM may in its discretion allocate any payment received from the Customer towards any invoice that CodeM determines and may do so at the time of receipt or at any time afterwards and on default by the Customer may reallocate any payments previously received and allocated. In the absence of any payment allocation by CodeM, payment shall be deemed to be allocated in such manner as preserves the maximum value of CodeM purchase money security interest in the Services.

7.    From time-to-time CodeM may be asked by customers to invoice projects in advance of their timeframe. If CodeM agrees to do this it is on the understanding that the amount will not be credited at all at a later date. If not used for the intended project CodeM terms relating to undertaking this request is that it won’t be refunded but can be allocated to other projects or future projects.
 

5.    DELIVERY, RISK, INSURANCE AND INSPECTION

1.    If CodeM has specified an anticipated delivery date, CodeM will use its reasonable endeavours to arrange delivery of the Services by that date. CodeM is not liable for any failure to deliver, or for any delay.

2.    Where physical delivery is required delivery shall be made at the place in New Zealand indicated in this agreement and if no place is indicated then CodeM will make the Services available at CodeM’s premises for collection by the Customer.  Delivery of Services to the Customer shall be deemed completed either upon CodeM delivering the Services to the place named in the agreement or, where no place is indicated in the agreement, then upon CodeM making the Services available for collection at CodeM’s premises.  Upon delivery being effected at CodeM’s premises the Customer shall bear all costs arising out of transportation of the Services from CodeM’s premises to the Customer (including shipping, brokerage, freight, insurance and all taxes and duties payable).

3.    Irrespective of whether ownership and title in the Services remains vested in CodeM, risk in the Services shall pass to the Customer upon delivery. The Customer is responsible for all insurance of all Services from the time of delivery.

4.    The Customer is responsible for the approval of any proofs provided to the Customer and CodeM shall not be liable for any error or omission in the Services where the Customer has approved a proof.  Where a reasonable time frame for approval has ben specified or agreed and the Customer has failed to advise CodeM of any error, such proof shall be deemed to have been accepted by the Customer.

5.    The Customer shall inspect the Services upon delivery and shall within the reasonable time specified by CodeM or in the absence of notice within seven (7) days after delivery notify CodeM in writing of any errors, abnormalities (faults or damage) the Customer wishes to make a claim for (where goods are supplied) or requires correction (where services are supplied).  If the Customer does not, the Customer shall be deemed to have accepted the Services and no returns shall be made or accepted by CodeM.

6.    TITLE AND SECURITY

1.    Ownership and title in the Services, or any proceeds from on-sale of the Services, shall not pass to the Customer until the Customer has paid CodeM in full for the Services and has paid CodeM in full for all other sums due to CodeM by the Customer on any account whatsoever in accordance with this agreement.

2.    If CodeM supplies Services without first obtaining payment in full for the same, then the Customer acknowledges and agrees that CodeM shall be entitled at the cost in all respects of the Customer to register on the Personal Property Securities Register any security interest that CodeM possesses in respect of all Services supplied and the proceeds of on-sale of such Services and the Customer acknowledges that CodeM’s security interest survives until the Customer pays in full all sums due to CodeM under this agreement.
 

7.    INTELLECTUAL PROPERTY AND USE BY THE CUSTOMER

1.    All of the trademarks, patents, copyright, designs (including rights of drawings, calculations, models, samples, descriptions, figures, dimension specifications and the like) or other intellectual property rights (whether or not registered) in respect of the Services (collectively “Intellectual Property”) remain CodeM’s property notwithstanding the sale/supply of the Services to the Customer.  The Customer may not use, reverse engineer, remove, interfere with or alter the Intellectual Property in any way. Intellectual Property owned by CodeM may not be copied, reproduced, distributed, modified, published, uploaded, posted, or transmitted in any way without CodeM’s prior written consent.

2.    The Customer acknowledges that it is aware that any breach of this clause 7 may result in CodeM suffering damage.  The Customer indemnifies CodeM against all losses, damages, expenses and legal costs (including on a solicitor and client basis) that CodeM may reasonably sustain or incur as a result, whether directly or indirectly, of any breach by the Customer of the provisions of this clause 7.

3.    This clause 7 survives termination of this agreement.

4.    The Customer may use the Services only if paid for in full and for the purpose for which they were intended and supplied by CodeM.
 

8.    WARRANTIES

1.    CodeM warrants that it is skilled and experienced and possesses the expertise needed to provide the Services the subject of this agreement.
 

9.    LIMITATION OF LIABILITY

1.    The warranties provided in clause 8 replace all other representations or warranties (statutory, expressed or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose) and all such representations and warranties (excepting those which may not be lawfully excluded) are specifically excluded. The exclusions and the limitations contained in clause 8 do not apply to rights granted to the Customer under the Consumer Guarantees Act 1993, unless the Customer is acquiring the services for the purposes of a business in which case the provisions contained in the Consumer Guarantees Act 1993 shall not apply.

2.    Under no circumstances will any warranty express or implied relating to the Services extend to or include nor will CodeM be liable (whether vicariously or otherwise) under the law of tort, contract or otherwise for:

a.    Any loss or damage of any kind whatsoever, arising from the supply of Services by CodeM to the Customer, including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Services provided by CodeM to the Customer;

b.    Any loss of profits or savings or any indirect, special, incidental or consequential loss or damage, however caused, arising out of or in connection with the performance or non-performance of CodeM and/or this agreement;

c.     Damage to Services after risk of loss passes;

d.    Any loss or damage not covered by a warranty arising;

e.    Any loss or damage caused by a force majeure event; or

f.      Any loss or damage arising from the termination of this agreement.

3.    Notwithstanding any other provision of this agreement and without prejudice to clause 7.2, if for any reason CodeM becomes liable for loss or damage that would have otherwise been excluded then its total liability to the Customer arising out of any claim for damages for any cause will be limited at CodeM’s election to either the monetary amount of the value of the Services giving rise to the claim or the actual damage or loss suffered by the Customer whichever is lesser.

4.    The Customer shall indemnify CodeM against all claims and loss 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 CodeM or otherwise, brought by any person in connection with any matter, act, omission, or error by CodeM its agents or employees in connection with the Services.
 

10.  DISPUTES

1.    No party to this agreement shall begin any court proceedings relating to any dispute arising out of this agreement (including any dispute as to the validity, breach or termination of this agreement or as to any claim in tort, in equity pursuant to any statute) unless that party has complied with the following paragraphs of this clause.

2.    Any party who claims that a dispute has arisen under or about this agreement must give written notice to the other party specifying the nature of the dispute.

3.    On receipt of the notice by the other party, the parties to this agreement must co-operate and use their reasonable endeavours to resolve the dispute quickly.
 

11.  RIGHTS OF TERMINATION

1.    CodeM may in its sole discretion terminate this agreement by written notice to the Customer if:

a.    The Customer defaults in performing its obligations under this agreement and the default, if capable of being remedied, is not remedied within seven (7) days from receiving a notice specifying the default and requiring remedy; or

b.    The Customer defaults in the performance of its obligations under this agreement and the default is in CodeM’s reasonable opinion incapable of being remedied; or

c.     The Customer commits an act of insolvency including a compromise with creditors or appoints a voluntary administrator; or if a receiver is appointed in respect of the assets of the Customer; or if an arrangement with the Customer’s creditors is made or likely to be made; or if the Customer ceases or threatens to cease carrying on business; or if the ownership or effective control of the Customer is transferred or the nature of the Customer’s business is materially altered, or the Customer is adjudicated bankrupt.

d.    Termination of this agreement will not prejudice or affect the rights, remedies and claims and/or any liabilities of CodeM.  CodeM shall have no liability or responsibility whatsoever to the Customer for any loss or damage of any kind which may result directly or indirectly from such termination of this agreement.
 

12.  MISCELLANEOUS

1.    CodeM may assign its rights under this agreement provided however the Customer shall not assign all or any of its rights or obligations under this Agreement without CodeM’s written consent.

2.    CodeM shall not be liable for delay or failure to perform its obligations.  CodeM shall not be liable for any errors, quality defects, faults or omissions in customer supplied materials.

3.    Failure by CodeM to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations CodeM has under this contract.

4.    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.

5.    The Customer authorises CodeM to collect, retain, disclose and use any information about the Customer, for the purpose of assessing the Customer’s credit worthiness, enforcing any rights under these terms and conditions or marketing any Services provided by CodeM to any other party; and where the Customer is a natural person the authorities under this clause 3.1 are authorities or consents for the purposes of the Privacy Act 1993