|These terms and conditions of trade apply to all our Sale of Goods Contracts. Any order placed with Rainbow Technology Limited constitutes your agreement to be bound by these terms. Any additional or different terms you stipulate or state in any communication with Rainbow Technology Limited (including an order) are hereby objected to and will not bind Rainbow Technology Limited unless Rainbow Technology Limited agree in writing. No sales person, representative or agent is authorised by Rainbow Technology Limited to give any guarantee, warranty or representation in addition to, or contrary to these terms. In any event, receipt of goods by you (or another as you direct) upon delivery constitutes your agreement to be bound by these terms.
1 PRICE AND PRICE VARIATION
1.1 Prices quoted are excluding GST unless otherwise stated. Unless otherwise agreed in writing, the price of the goods will be the current price on the day of delivery of the goods. Prices do not include any delivery surcharges.
1.2 Rainbow Technology Limited shall be entitled to adjust any price quoted from time to time and the Customer agrees to pay any such adjusted price to take account of variations in the cost to Rainbow Technology Limited of carrying out the whole or any part of the contract arising from any of the following:
(a) Delays in delivery or installation of the goods or any of them as a result of instructions or lack of instructions from the Customer, the Customer's failure or inability to fulfil the obligations under the contract or any action or inaction by the Customer or other circumstances beyond Rainbow Technology Limited's control;
(b) Variation in the cost of Rainbow Technology Limited acquiring the goods directly or indirectly, on account of changes in rates of freight and transport costs, insurance, customs duties, taxes, existing tariff classifications or any variation in currency exchange rates;
(c) Variations in the cost of rates of all statutory, government or local government or governmental authority charges and obligations; or
(d) Any correction of errors or omissions on the part of Rainbow Technology Limited or any of its representatives.
2.1 All goods and services sold are subject to Goods and Services Tax.
3.1 Unless otherwise agreed, the purchase price shall be paid to Rainbow Technology Limited at its address before delivery the goods to you. Payment will not be accepted by any means other than cash, cheque, direct credit or direct debit.
3.2 Rainbow Technology Limited reserves the right to suspend delivery of further goods if the terms of payment are not strictly adhered to by the Customer.
3.3 Interest may be charged on overdue accounts at such rate as may be charged by Rainbow Technology Limited from time to time.
3.4 Any expenses, costs or disbursements incurred by Rainbow Technology Limited in recovering any outstanding monies including debt collection agency fees or solicitor's costs shall be paid by the Customer.
4 NEW ACCOUNT
4.1 Use of this account shall constitute acceptance of these terms and conditions.
4.2 The Customer shall not be liable for any indebtedness arising from the fraudulent use of the account provided that the Customer must on discovering the fraudulent use of the account immediately notify Rainbow Technology Limited of such fraudulent use. The burden of proving such use was fraudulent shall lie with the Customer.
4.3 The Customer shall endeavour to return all goods acquired by fraudulent use.
5.1 Rainbow Technology Limited shall deliver the goods to the address stated on the order or as agreed by Rainbow Technology Limited in writing.
5.2 Rainbow Technology Limited shall deliver the goods by such carrier and such form of transport Rainbow Technology Limited consider to be appropriate.
5.3 Where you specify the carrier and the means of carriage, Rainbow Technology Limited shall deliver the goods in the way specified, the cost of such carriage being an additional charge to the invoiced price of the goods.
5.4 Rainbow Technology Limited will not be responsible for any part delivery or delay in delivery of the goods as a result of events occurring beyond Rainbow Technology Limited's control. Rainbow Technology Limited shall not be in any way responsible for any consequences (direct or indirect) arising from such delay or non-delivery.
5.5 The Customer agrees to inform Rainbow Technology Limited within 30 days of the date of invoice if proof of delivery is required. After this period, no liability will lie with Rainbow Technology Limited for proof of delivery.
6 PRIVACY ACT 1993
6.1 The Customer authorises Rainbow Technology Limited to collect, retain, and use personal information about the Customer (including the information collected in this document) for the following purposes only:
(a) assessing the Customer's creditworthiness.
(b) disclosing to a third party details of this application and any subsequent dealings it may have with Rainbow Technology Limited for the purpose of recovering amounts payable by the Customer and providing credit references.
(c) marketing goods and services provided by Rainbow Technology Limited to the Customer.
6.2 The Customer, if an individual, has a right of access to information about the Customer held by Rainbow Technology Limited. The Customer may request correction of that information and may require that the request be stored with that information. Rainbow Technology Limited may charge reasonable costs for providing access to that information.
7 INTELLECTUAL PROPERTY
7.1 Where Rainbow Technology Limited has followed a design or instruction furnished by or given by the Customer, the Customer shall indemnify Rainbow Technology Limited against all damages, penalties, costs and expenses of Rainbow Technology Limited or in respect of which Rainbow Technology Limited may become liable through any work required to be done in accordance with these instructions involving an infringement of a patent, trademark, registered design or common law right.
7.2 Should Rainbow Technology Limited be required to match any shade or colour, a light and dark tolerance shall be allowed to such an extent as shall be agreed by Rainbow Technology Limited and the Customer at the time the standard colour is specified and in the absence of any agreement a reasonable tolerance shall be allowed.
7.3 Where the Customer supplies a mould, die, tool, printing plate or any other item used in the manufacturing process the Customer shall reimburse Rainbow Technology Limited for all maintenance expenses. Rainbow Technology Limited shall not be liable for any loss or damage to moulds, dies, tools or materials supplied by the Customer to Rainbow Technology Limited for the purposes of fulfilling any contract.
7.4 Printing plates, stereos, film, artwork and all other equipment for specific use in the manufacture of the goods (other than those supplied by the Customer) remain the property of Rainbow Technology Limited unless the cost thereof (including all development and costs relating thereto) shall have been fully recovered by Rainbow Technology Limited from the Customer in the costing of the goods already paid for by the Customer.
7.5 All information prepared by Rainbow Technology Limited including, without limitation, customised pricing, proposals, electronic catalogues, details of improvements and cost reductions, is the intellectual property of Rainbow Technology Limited and cannot be copied, altered or distributed without Rainbow Technology Limited's prior written consent. Rainbow Technology Limited will not be liable for any alterations made by you.
8 RETURN OF GOODS
8.1 Rainbow Technology Limited will not accept the return of goods for credit or any other purpose unless Rainbow Technology Limited agrees to accept the return of the goods and advise the Customer a return advice number prior to the return of goods. Return of goods will only be accepted for credit within 14 days of delivery, unless due to Rainbow Technology Limited's error. Return freight will be at Rainbow Technology Limited's cost only when there has been an error on Rainbow Technology Limited's part.
8.2 No returned goods shall be accepted by Rainbow Technology Limited (even if Rainbow Technology Limited agrees to do so) if they have been tampered with by you or any other person and are not as new, if they are goods expressly sold on a non-return basis, or if they are not accompanied by the return advice number referred to in clause 8.1. Where goods are returned to Rainbow Technology Limited but not accepted as above, they shall be returned to you at your expense.
8.3 Receipt by Rainbow Technology Limited or by any of our agents or representatives of any goods returned other than in accordance with clauses 8.1 and 8.2 shall not constitute nor be deemed to constitute Rainbow Technology Limited's acceptance of the return of the goods for credit or any other purpose.
9.1 Risk in the goods shall pass to you at the time when our obligations under the contract are deemed under clause 5 to be completed.
10 No Responsibility To Sell Mispriced Products Or Services
Rainbow Technology Ltd shall have the right to refuse or cancel any orders
placed for products and/or services listed at an incorrect price, stock,
rebate or refund, or containing any other incorrect information or
typographical errors. Rainbow Technology Ltd shall have the right to refuse
or cancel any such orders whether or not the order has been confirmed and
you have been charged. If you have already paid for the order and your
order is cancelled. Rainbow Technology Ltd shall immediately issue a refund
to your bank account or post you a cheque.
11 PPSA SECURITY INTEREST
11.1 The Customer grants to Rainbow Technology Limited a Security Interest in the goods and their Proceeds to secure the obligation of the Customer to pay the purchase price of the goods and any other obligations of the Customer to Rainbow Technology Limited under this contract (together "the Indebtedness") and, where the goods and/or Proceeds are not readily identifiable and/or traceable or their recoverable value is insufficient to pay the indebtedness, the security interest shall also extend to all the Customers present and after acquired office equipment, supplies and stationery, of which the goods form part, to the extent required to secure the Indebtedness.
11.2 As and when required by Rainbow Technology Limited the Customer shall, at its own expense, provide all reasonable assistance and relevant information to enable Rainbow Technology Limited to register a Financing Statement or Financing Change Statement and generally to obtain, maintain, register and enforce Rainbow Technology Limited's Security Interest in respect of the goods supplied, in accordance with the Personal Property Securities Act 1999 ("PPSA").
11.3 The Customer shall not change its name without first notifying Rainbow Technology Limited of the new name not less than 7 days before the change takes effect.
11.4 The Customer warrants that the goods are not purchased for use primarily for personal, domestic or household purposes.
11.5 Notwithstanding any reference to a particular invoice/order, where any sum remains outstanding by the Customer on more than one invoice/order, any payments received from the Customer shall be deemed to be made by the Customer and applied by Rainbow Technology Limited in respect of each unpaid invoice/order on a pro rata basis PROVIDED THAT where Rainbow Technology Limited applies payments in this manner it shall not charge interest on overdue balances that would have been cleared if the payments were not allocated pro rata.
11.6 Until the Customer has paid all money owing to Rainbow Technology Limited the Customer shall at all times ensure that:
(a) the goods supplied by Rainbow Technology Limited, while in the Customer's possession, can be readily identified and distinguished; and/or
(b) all Proceeds (in whatever form) that the Customer receives from the sale of any of the goods are readily Identifiable and Traceable.
11.7 Where the goods are purchased by the Customer as stock in trade for sale or lease in the ordinary course of the Customer's business, nothing in this clause shall prevent the Customer from selling or leasing and delivering the goods in the ordinary course of the Customer's business. Otherwise, until the Customer has paid all money owing to Rainbow Technology Limited, the Customer shall not sell or grant a Security Interest in the goods without Rainbow Technology Limited's written consent.
11.8 The parties agree to contract-out of the PPSA in accordance with Section 11.7 of the PPSA to the extent that Section 11.7 applies for the benefit of, and does not impose a burden on, Rainbow Technology Limited. The Customer waives its right to receive a Verification Statement in respect of any Financing Statement or Financing Change Statement registered by or on behalf of Rainbow Technology Limited in respect of the Security Interest created by these terms and conditions of trade.
11.9 For the purpose of this clause words and phrases starting with a capital letter shall have the respective meanings given to them under, or in the context of, the PPSA.
12.1 Where the goods are of a kind ordinarily acquired for personal, domestic or household use or consumption in accordance with the Consumer Guarantees Act 1993 and the Consumer Guarantees Act 1993 applies to this contract:
(a) if any of the goods fail to comply with any guarantee in the Consumer Guarantees Act, Rainbow Technology Limited will repair or replace those goods; All products do come with 1 Year RTB Warranty.
(b) without excluding Rainbow Technology Limited's obligations under the Consumer Guarantees Act 1993, the Customer acknowledges that Rainbow Technology Limited does not provide any Express Guarantees (as defined in that Act) other than those expressly confirmed by Rainbow Technology Limited in writing;
(c) if the goods are acquired by the Customer for business purposes, the Customer agrees that the Consumer Guarantees Act 1993 does not apply;
(d) if the Customer supplies the goods in trade to a person acquiring them for business purposes, it must be a term of the Customer's contract that the Consumer Guarantees Act 1993 does not apply in respect of the goods; and
(e) if the Customer supplies the goods to any person, the Customer must not give or make any undertaking assertion or representation in relation to the goods without Rainbow Technology Limited's prior approval in writing, and the Customer must give the person buying the goods such product information relating to the goods as Rainbow Technology Limited requires, and the Customer agrees to indemnify Rainbow Technology Limited against any liability or cost incurred by Rainbow Technology Limited under the Consumer Guarantees Act 1993 as a result of any breach by the Customer of these obligations.
12.2 The following terms apply wherever the Consumer Guarantees Act 1993 does not apply to this contract, or where the following terms are not inconsistent with the Consumer Guarantees Act 1993:
(a) Defective goods or goods which do not comply with the contract may at Rainbow Technology Limited's discretion be repaired or replaced, or the price refunded.
(b) Any right which the Customer may have to reject non-conforming or defective goods will only be effective if:
(i) the Customer notifies Rainbow Technology Limited in writing within fourteen days following delivery and Rainbow Technology Limited is given the opportunity to inspect the goods; and
(ii) the goods are returned unused, re-saleable and/or in the condition the Customer received them.
(c) Rainbow Technology Limited will not repair or replace, or refund the price of any goods for so long as the Customer is in default in relation to any amount owing.
(d) Rainbow Technology Limited accepts no liability for any claim by the Customer or any other person, including without limitation any claim relating to or arising from:
(i) Any conditions, warranties, descriptions, representations, conditions as to fitness or suitability for any purpose, tolerance to any conditions, merchantability or otherwise, whether express or implied by law, trade custom or otherwise; or
(ii) Any representations, warranties, conditions or agreement made by any agent or representative which are not expressly confirmed by Rainbow Technology Limited in writing; or
(iii) Any services forming part of the supply of the goods which have been performed by any third party; and the Customer agrees to indemnify Rainbow Technology Limited against any such claim.(e) In any event, Rainbow Technology Limited's liability under any claim shall not exceed the price of the goods.
12.3 Nothing in these terms is intended to have the effect of contracting out of the provisions of the Consumer Guarantees Act 1993 except to the extent permitted by that Act, and these terms are to be modified to the extent necessary to give effect to that intention.
13 CUSTOMER'S LIABILITY & DEFAULT
13.1 If the Customer shall:
(a) fail to make any payment due under the contract or commit any other breach of any of the Customer's obligations under the contract; or
(b) suffer execution under any judgment; or
(c) commit an act of bankruptcy; or
(d) make any composition or arrangement with any creditor; or
(e) being a company, pass a resolution for winding up or have a receiver appointed over any of its property or have a winding up petition presented against it,Rainbow Technology Limited (in addition to any other remedies hereby or by statute conferred) may treat the contract as terminated and any part of the purchase price then unpaid, together with any other monies owing hereunder, whether or not due under the terms of the contract shall forthwith become due and payable. Any such termination shall be without prejudice to any claim or right Rainbow Technology Limited may otherwise possess.
14 VARIATIONS TO TERMS AND CONDITIONS OF TRADE
14.1 Rainbow Technology Limited may from time to time and in its sole discretion amend, add to or delete any of the terms of these terms and conditions of trade with immediate effect by giving notice to the Customer PROVIDED THAT Rainbow Technology Limited shall not make any variation to the nature or extent of the Security Interest granted by the Customer in clause 11.1 without the written agreement of the Customer. Rainbow Technology Limited may notify the Customer by delivering to the Customer an invoice with these terms and conditions of trade and receipt of the invoice by the Customer will be deemed to be acceptance by the Customer of the terms and conditions of trade.
15 GOVERNING LAW
15.1 These terms of trade are governed by the laws of New Zealand.
14.2 Rainbow Technology Limited and the Customer shall submit to the non-exclusive jurisdiction of the courts of New Zealand in respect of any dispute or proceeding arising out of these terms and conditions of trade.