Terms of Trade

VOGUE LIGHTING - TERMS AND CONDITIONS OF TRADE

 

1.      DEFINITIONS AND INTERPRETATION

 

1.1.    “Confidential Information” means any information, in whatever form, about Vogue Lighting’s business that is disclosed to the Customer or its representatives or learnt by the Customer or its representatives in the course of Vogue Lighting providing Goods or Services, including without limitation all information retaining to the design and pricing of Vogue Lighting’ Goods its computer programs, literature and advertising material. It does not include information which:

 1.1.1.       is in the public domain (unless that information is in the public domain because it has been disclosed without Vogue Lighting’ consent)

1.1.2.       the Customer can prove was already known, or was independently acquired by the Customer (provided that the source was in possession of the information).

 

1.2.    “Contract for Goods and Services” shall mean the agreement (whether written or verbal) between Vogue Lighting and the Customer for the supply of Goods and Services.

 

1.3.    "Customer" shall mean any person or entity that Vogue Lighting provides Goods to and/or carries out Services for and if there is more than one Customer then each person or entity is jointly and severally the Customer. 

 

1.4.    “Customer’s Property” shall mean any tangible asset owned by the Customer that may be the subject of the Contract for Goods and Services.

 

1.5.    "Customer’s Site” shall mean the site (or sites if applicable) owned, occupied and/or under the control of the Customer where the Customer’s Property may be stored. 

 

1.6.    “Goods” shall mean the goods to be supplied by Vogue Lighting to the Customer in satisfying a Contract for Goods and Services includes, without limitation, lighting fixtures and lighting related products.

 

1.7.    Intellectual Property means all intellectual property rights, including all copyright, patents, trademarks, design rights, trade secrets, domain names, know-how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application.

 

1.8.    “Person” includes a company, partnership, family trust, individual or any other entity. 

 

1.9.    “Services” shall mean the services to be supplied by Vogue Lighting to the Customer in satisfying the Contract for Goods and Services and may include, without limitation, the provision of Goods, lighting design, repairs, and other lighting related services.

 

1.10.  “Vogue Lighting” shall mean Vogue Lighting (1992) Limited trading as Vogue Lighting (or such other name as it trades by), its successors and assigns or any person acting on behalf of and with the authority of Vogue Lighting (1992) Limited. 

 

1.11.  “Vogue Lighting’s Site” shall mean the site (or sites if applicable) owned, occupied and/or under the control of Vogue Lighting where the Contract for Goods and Services may be satisfied.

 

1.12.  Unless the context requires otherwise:

1.12.1.     References to any statute, regulations or other statutory instrument or by-law shall be deemed to be references to a statute, regulations, instrument or by-law of New Zealand as from time to time amended and includes substitute provisions (whether in an amendment of existing legislation or in new legislation) that substantially correspond to those referred.

1.12.2.     Where the context requires or admits, words importing the singular shall import the plural and vice versa; and

1.12.3.     References to any party includes the successors and any permitted assigns of that party and party means them collectively. 

 

2.      ACCEPTANCE OF TERMS AND CONDITIONS OF TRADE

 

2.1.    Any instructions received by Vogue Lighting from the Customer for Vogue Lighting’s Services shall constitute acceptance of these terms and conditions of trade and the terms and conditions of trade shall form part of a binding contract between Vogue Lighting and the Customer.

 

2.2.    These terms and conditions of trade do not require the Customer’s signature to be deemed to be binding.

 

2.3.    The Customer warrants it has the power to enter into a Contract for Goods and Services with Vogue Lighting and has obtained all necessary authorisations to do so. The Customer further warrants it is not insolvent and accepts the Contract for Goods and Services creates binding and valid legal obligations on it.

 

3.      PERSONAL GUARANTEE

 

3.1.    Vogue Lighting may require one or more of the representatives of the Customer to jointly and severally personally guarantee the Customer’s obligations under any Contract for Goods and Services with Vogue Lighting.

 

4.      QUOTATIONS, PRICING AND DELIVERY

 

4.1.    Where a quotation is given by Vogue Lighting for its Good or Services then:

4.1.1.       Unless otherwise agreed the quotation shall be valid for 30 days from the date of issue;

 

4.1.2.   Unless expressed otherwise the quotation shall be exclusive of Goods and Services Tax (“GST”);

 

4.1.3.       Where the quotation is based on information specified by the Customer, Vogue Lighting reserves the right to alter the quotation if there is a variation to this information.

 

4.1.4.       Vogue Lighting reserves the right to alter the quotation if

 

4.1.4.1.  The cost of supply of the Goods and/or Services increases beyond the control of Vogue Lighting between the date of the quotation and the completion of the Contract for Goods and Services; or

4.1.4.2.  The time estimated to satisfy the Contract for Services will be increased due to factors which were not reasonably foreseen by Vogue Lighting at the time of the quotation

4.1.5.       The Customer agrees to pay for the cost of any additional Goods and Services required over and above the Goods and Services included in the quotation. 

4.2.    Where a quotation is not provided by Vogue Lighting then:

 

4.2.1.       The Goods and Services shall be deemed to be provided at the amount specified by Vogue Lighting and shall be exclusive of GST; and

 4.2.2.       Vogue Lighting’s pricing will be based on labour and materials.

4.3.    Vogue Lighting may require a deposit prior to the acceptance of any order by a Customer at its sole discretion.

4.4.    Vogue Lighting will endeavour to deliver any goods in accordance with any quotation or otherwise within a reasonable timeframe. This timeframe is only an estimate and Vogue Lighting shall not be liable to the Customer for any damages, costs or expenses incurred as a result of a late delivery. All delivery costs shall be at the Customer’s cost unless otherwise agreed. Risk passes to the Customer upon delivery.

 

5.    ACCURACY OF INFORMATION FROM CUSTOMER

5.1.    Vogue Lighting shall be entitled to rely on any information provided by the Customer in relation to the provision of Goods and Services including, without limitation, timeframes, measurements, quantities, plans, specifications, and information regarding any previous work that has been carried out on the Customer’s Property by any other Person.

5.2.    Vogue Lighting shall not be liable for any loss, damages, costs and/or expenses incurred as a result of the Customer’s failure to provide information or the provision of inaccurate information.

6.    PAYMENT

 

6.1.    Unless otherwise specified, payment under a Contract for Goods and Services shall be due to Vogue Lighting on the 20th day of the month following the month of the invoice.

 

6.2.    Part payment of an account shall not amount to satisfaction of the whole account unless, prior to the act of making the part payment, Vogue Lighting agrees in writing that part payment will be accepted in full satisfaction of the account.

 

6.3.    Any dispute of an invoice must be made in writing and received by Vogue Lighting within seven (7) days of the Customer’s receipt of the invoice.

 

7.      DEFAULT

 

7.1.    Vogue Lighting may charge default interest at a rate of 2% per month on any amount outstanding after the date payment was due under clause 6.1. Default interest is payable from the date payment was due until the date payment is received by Vogue Lighting. This clause is without prejudice to any other rights and/or remedies of Vogue Lighting in respect of the Customer’s default.

 

7.2.    In the event that a payment is not made by the due date Vogue Lighting may, in its sole discretion, suspend the completion of any Services for the Customer but failure to do so shall not negate any other rights and/or remedies of Vogue Lighting. Vogue Lighting will not be liable to the Customer for any loss or damage the Customer suffers if Vogue Lighting suspends its Services under this clause.

 

7.3.    Should the Customer default in payment or be placed in receivership, liquidation, declared bankrupt, or otherwise become insolvent, then in addition to any other rights and/or remedies of Vogue Lighting, it may demand immediate payment of all amounts then unpaid and cancel the completion of any existing Contract for Goods and Services with the Customer.

 

7.4.    Any costs and expenses incurred by Vogue Lighting in enforcing its rights under these terms and conditions of trade, including debt collection agency fees and legal fees as between solicitor and client (being Vogue Lighting), shall be recoverable from the Customer.

 

7.5.    The Customer indemnifies Vogue Lighting from and against all costs and disbursements incurred by Vogue Lighting in recovering any money owing to it.

 

8.      SET OFF

8.1.    Vogue Lighting may, in its sole discretion, allocate any payment received from the Customer towards any invoice that Vogue Lighting 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.

 

9.      RETENTION OF TITLE

 

9.1.    Ownership and legal title in any of Vogue Lighting’s Goods shall remain the ownership of Vogue Lighting regardless of whether they are attached, fixed, inseparable or indistinguishable from the Customer’s Property until full payment is made under the relevant Contract for Goods and Services.

 

9.2.    If the Customer is in default under a Contract for Goods and Services, Vogue Lighting shall be entitled to remove, from the Customer’s Site, any Goods it has supplied and the Customer authorises Vogue Lighting to enter upon the Customer’s Site at any time to recover the Goods pursuant to this clause.

 

10.   LIEN

 

10.1.  Where the Customer has not paid Vogue Lighting under a Contract for Goods and Services, Vogue Lighting shall have the right to retain the Customer’s Property until such time as all outstanding amounts have been paid.

 

11.   PERSONAL PROPERTY SECURITIES ACT 1999

 

11.1.  In entering a Contract for Goods and Services with Vogue Lighting the Customer acknowledges and agrees that the Contract for Goods and Services creates a security agreement between Vogue Lighting and the Customer for the purposes of the Personal Property Securities Act.

 

11.2.  The Customer acknowledges and agrees that Vogue Lighting has a security interest in any Goods it supplies to the Customer under a Contract for Goods and Services.

 

11.3.  Vogue Lighting may protect its interests by registering and maintaining a financing statement(s) on the Personal Properties Securities Register. The Customer waives its right to receive a copy of any verification statement received by Vogue Lighting.

 

11.4.  The Customer undertakes to sign any documents and/or provide further information, such information to be complete, accurate and up to date in all respects, which Vogue Lighting may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register. 

12.   WARRANTIES

 

         12.1.  Vogue Lighting warrants that its Goods and/or Services supplied to the Customer meet the specifications contained in the Contract for Goods and Services and in the absence of such specifications that any Goods supplied will be free of defects in materials and workmanship under the normal use for which those Goods are intended and that any Services are completed with due care and skill. Other than the warranty in this clause, Vogue Lighting makes no representations or warranties in respect of the Goods and/or Services, and all guarantees, conditions, warranties and terms implied by statute, common law, custom of trade or otherwise, and whether implied into these Terms, any Contract for Goods and Services or any other dealings between, are exclude

12.2.  Vogue Lighting’s liability under the above warranty shall be limited to making good any defects in materials and/or workmanship in satisfying the Contract for Goods and Services, provided that the Goods and/or the Customer’s Property (as applicable) shall be returned to Vogue Lighting’s site or such other location as agreed by Vogue Lighting with transportation prepaid, and upon examination of the Goods and/or Customer’s Property Vogue Lighting is satisfied that the Customer’s Property is defective as a result of Vogue Lighting’s Services, provided further that no such Goods and/or Customer’s Property shall be returned to Vogue Lighting and liable for remedy any later than 12 months after collection by or delivery to the Customer.

 12.3.  The warranty in clause 12.1 does not apply to:

 12.3.1.     Any repairs or alterations made by the Customer without Vogue Lighting’s written consent.

12.3.2.     Damage caused by overloading, misuse, neglect or accident.

12.3.3.     Work completed by Vogue Lighting to repair the work of a previous Person or contractor/

12.3.4.     Damage and/or defects unrelated to any work performed by Vogue Lighting and/or works that Vogue Lighting have not been asked to repair under a Contract for Goods and Services.

12.4.   Vogue Lighting shall not be bound by any term, condition, representation or warranty given by the manufacturer of any Goods used by Vogue Lighting. 

13.   LIMITATION OF LIABILITY

 13.1.  Vogue Lighting shall not be liable for any loss of profit or indirect and/or consequential loss (whether arising under statute, contract, negligence or otherwise) arising out of a Contract for Goods and Services.

13.2.  In the event that Vogue Lighting is found liable for loss associated with Goods and/or Services provided under a Contract for Goods and Services then Vogue Lighting’s liability shall not in any event exceed the price of the Goods and/or Services provided under the applicable Contract for Goods and Services.

 14.   PRIVACY ACT 1993

14.1.  The Customer authorises Vogue Lighting to collect, retain and use any information about the Customer for the purpose of assessing the Customer's credit worthiness, enforcing any rights under the Contract for Goods and Services and marketing.

14.2.  The Customer authorises Vogue Lighting to disclose any information obtained to any person for the purposes set out in clause 14.1.

14.3.  Where the Customer is a natural person the authorities under clauses 14.1 and 14.2 are authorities or consents for the purposes of the Privacy Act 1993.

 

14.4.  The Customer shall have the right to request a copy of the information held by Vogue Lighting about the Customer and the right to request Vogue Lighting to correct any incorrect information about the Customer.

 

15. FORCE MAJEURE

 

15.1.  Vogue Lighting shall not be liable for any delay, failure to perform its obligations or default under the Contract for Goods and Services due to any act of God, terrorism, war, strike, lock out, industrial action, flood, storm or other event beyond its reasonable control. 

 

16.   CONSUMERS GUARANTEES ACT 1993

16.1.  Any Contract for Goods and Services is subject to the provisions of the Consumer Guarantees Act 1993 in all cases except where the Customer acquires Goods in trade. When Goods are acquired in trade the parties agree that they contract out of the provisions of the Consumer Guarantees Act 1993.

 

17.   COMPLIANCE WITH LAW/

17.1.  Vogue Lighting will comply with any laws, regulations, bylaws, rules and standards that are applicable to the Goods and/or Services it provides to the Customer including but not limited to the Health and Safety at Work Act 2015.

 18.   HEALTH AND SAFETY

18.1.  The Customer warrants that, if requested, it will at all times comply with Vogue Lighting’s health and safety policies and will take all practicable steps to uphold these. The Customer indemnifies Vogue Lighting from and against any fines or penalties Vogue Lighting incurs as a result of the Customer, or any Person the Customer employs or contracts with, failing to comply with Vogue Lighting’s health and safety policies.

 18.2.  The Customer is responsible for undertaking its own health and safety policies, procedures and program at the Customer’s Site.

 19.   CONFIDENTIALITY AND INTELLECTUAL PROPERTY

 

19.1.  On receipt of any Confidential Information, the recipient undertakes to use the Confidential Information ONLY for the purpose of making an order with Vogue Lighting. The Confidential Information must not be shared with any other person, including any competitor of Vogue Lighting. Upon request Vogue Lighting may require the Customer to return or destroy (at Vogue Lighting’ option) all Confidential Information and all copies of it.

 

19.2.  The Customer indemnifies Vogue Lighting for any loss, damage, claim or cost caused directly or indirectly by breach of clause 19.1.

 

19.3.  Vogue Lighting (and/or its Suppliers) retains all rights of ownership in any of its Intellectual Property existing at the date of any Contract for Goods and Services together with any new Intellectual Property arising out of its supply of Goods and Services by it such as concepts, designs, drawings, ideas, improvements, inventions, know how, layouts, plans, samples, systems, etc.

 

 20.   MISCELLANEOUS

20.1.  No waiver by Vogue Lighting in respect of any breach of a Contract for Goods and Services shall operate as a waiver in respect of any subsequent breach.

 

 20.2.  If any clause(s) of these terms and conditions of trade shall be declared invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining clauses shall not be affected, prejudiced or impaired

 

20.3.  Vogue Lighting reserves the right to amend these terms and conditions of trade at any time. Any amendment will be incorporated into any existing Contract for Goods and Services and take effect from the date on which Vogue Lighting notifies the Customer of such change. The Customer will be deemed to have accepted such amendment if the Customer makes a further request to Vogue Lighting to provide Goods and/or Services

 

20.4.  These terms and conditions of trade are governed by and construed in accordance with the laws of New Zealand and the parties agree to submit to the exclusive jurisdiction of the courts of New Zealand

 

20.5.  Vogue Lighting may licence or sub-contract all or any part of its Services under the Contract for Goods and Services without requiring or seeking the Customer’s consent.

 

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