Terms and Conditions
1.1 “Kale Print” shall mean Kale Print Limited its successors and assigns or any person acting on behalf of and with the authority of Kale Print Limited.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by Kale Print to the Client.
1.3 “Guarantor” shall mean that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 “Goods” shall mean all Goods supplied by Kale Print to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and includes Goods described on any invoices, quotation, work authorisation or any other forms as provided by Kale Print to the Client.
1.5 “Services” shall mean all services supplied by Kale Print to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the price payable for the Goods as agreed between Kale Print and the Client in accordance with clause 3 of this contract.
2.1 Any instructions received by Kale Print from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by Kale Print shall constitute acceptance of the terms and conditions contained herein.
2.2 Kale Print shall not be held liable for errors or omissions arising from an oversight or misinterpretation of a Client’s verbal instructions.
2.3 In the event urgent delivery is required, all related costs including overtime shall be charged to the Client.
2.4 Any complaint or claim shall be made in writing to Kale Print within ten (10) days of receipt of the Goods. Any claim made after this period shall not be accepted.
2.5 The Client acknowledges and agrees that no warranty shall be given or responsibility accepted by Kale Print to ensure that Goods produced comply with the requirements of any legislation relating to the marking and/or labelling and/or packaging of Goods. Compliance with the requirements of any such legislation shall be the sole responsibility of the Client.
2.6 Where Kale Print gives advice, recommendations, information, assistance or service to the Client or the Clients agent, regarding the Goods or Services then it is given in good faith and Kale Print shall not be liable in any way whatsoever for any damages, losses or costs however arising resulting from the Client relying on the same.
2.7 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
2.8 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of Kale Print.
2.9 The Client shall give Kale Print not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by Kale Print as a result of the Client’s failure to comply with this clause.
2.10 Goods are supplied by Kale Print only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
3. Price And Payment
3.1 At Kale Print’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Kale Print to the Client in respect of Goods supplied; or
(b) Kale Print’s quoted Price (subject to clause 3.2) which shall be binding upon Kale Print provided that the Client shall accept Kale Print’s quotation in writing within fourteen (14) days.
3.2 Kale Print reserves the right to change the Price in the event of a variation to Kale Print’s quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of increases to Kale Print in the cost of materials and labour) will be charged for on the basis of Kale Print’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
3.3 At Kale Print’s sole discretion:
(a) payment shall be due on delivery of the Goods; or
(b) payment for approved Clients shall be due twenty (20) days following the end of the month in which a statement is posted to the Client’s address or address for notices.
3.4 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card, or by direct credit, or by any other method as agreed to between the Client and Kale Print.
3.5 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
4. Delivery Of Goods
4.1 At Kale Print’s sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at Kale Print’s address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by Kale Print or Kale Print’s nominated carrier).
4.2 At Kale Print’s sole discretion the costs of delivery are:
(a) in addition to the Price; or
(b) for the Client’s account.
4.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Kale Print shall be entitled to charge a reasonable fee for redelivery.
4.4 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
4.5 Kale Print may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
4.6 The Client shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:
(a) such discrepancy in quantity shall not exceed five percent (5%) for single colour work and ten percent (10%) for multicolour work; and
(b) the Price shall be adjusted pro rata to the discrepancy.
4.7 The failure of Kale Print to deliver shall not entitle either party to treat this contract as repudiated.
4.8 Kale Print shall not be liable for any loss or damage whatsoever due to failure by Kale Print to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Kale Print.
5.1 If Kale Print retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
5.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Kale Print is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Kale Print is sufficient evidence of Kale Print’s rights to receive the insurance proceeds without the need for any person dealing with Kale Print to make further enquiries.
6. Printing, Proof Reading, and Materials Clauses
6.1 The Client acknowledges and agrees that any property supplied to Kale Print by or on behalf of the Client shall be held at Kale Print’s address at the Client’s risk. All care will be taken to secure good results where the materials or equipment are supplied by the Client. If any change or correction is necessary in order to supply property finished work, then the additional work shall be at the Client’s expense and charged for as a variation as per clause 3.2. Kale Print shall not be held liable for any sub-standard work caused by defects or unsuitability of such materials or equipment. Where the Client supplies materials adequate supplies shall be furnished to cover spoilage as agreed with Kale Print.
6.2 Unless otherwise specified, single colour work is quoted on the basis of using black ink. Any changes in the ink required after the quotation shall be charged as a variation to the Price as per clause 3.2.
6.3 Unless otherwise agreed, where a Price has been quoted at a per page rate of a book, pamphlet or magazine or similar work, every page in the production (including but not limited to cut-flush paper covers) shall be chargeable at the full rate, whether printed or not.
6.4 Work of an experimental nature at the Client’s request shall be considered an order and shall be charged accordingly.
6.5 Unless otherwise agreed in writing, any typesetting, artwork, colour separation and/or other intermediary material specifically required for the completion of a Client’s order shall be an additional charge.
6.6 The Client acknowledges that Goods supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. Kale Print will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur.
6.7 All paper supplied by the Client for the production of the Client’s work shall be subject to a charge for handling, storage and profit as determined by Kale Print.
6.8 In the event the Client requests the presses to be held, then the Client shall be charged an additional fee for the time standing of the press.
6.9 Type may be distributed after the order is complete unless written arrangements have been made to the contrary, if so a rental charge may be levied.
6.10 Unless otherwise agreed in writing, any origination, plate making, positive or negative film, plates or blocks supplied by the Client to complete the works shall remain the Client’s property. Unless otherwise advised in writing within a period of twelve (12) months from the date the Client was invoiced for such works, then Kale Print may dispose of these materials. Any proceeds arising from their disposal may be used by Kale Print to offset the cost of storage.
6.11 Whilst every care is taken by Kale Print to carry out the instructions of the Client, it is the Clients responsibility to undertake a final proof reading of the Goods. Kale Print shall be under no liability whatever for any errors not corrected by the Client in the final proof reading. Should the Clients alterations require additional proofs this shall be invoiced as an extra.
6.12 When quotations are based on specifications, roughs, layouts, samples or dummies or printed, typewritten or other good copy, any extra work or cost caused by any variation by the Client of his original instructions or by the manuscript copy being, in Kale Prints opinion, poorly prepared or by the Client’s requirements being different from those originally submitted or described, then the cost of such variations may be charged to the Client and shown as extras on the invoice.
6.13 Any tabulated work and/or foreign language included in the job but not contained in the manuscript originally submitted for the purpose of estimating may be charged to the Client and shown as extras on the invoice.
6.14 Unless otherwise agreed, the Client shall bear the cost of fonts, or colour proofs, or artwork, specially bought at its request for the works.
6.15 Where the performance of any contract with the Client requires Kale Print to obtain Goods or Services from a third party, the contract between Kale Print and the Client shall incorporate and shall be subject to the conditions of supply of such Goods and Services to Kale Print, and the Client shall be liable for the cost in full including Kale Print’s margin of such Goods or Services.
6.16 Kale Print is under no obligation to provide samples of Goods ordered other than by virtual (computerised) sample. Whilst every effort will be taken by Kale Print to match virtual colours with physical colours, Kale Print will take no responsibility for any variation between virtual sale samples and either the virtual sale sample displayed on the Client’s computer and/or the final product. Should a physical sample be required this will be provided on request by the Client and will be charged for as an extra including return freight, the charge will be contra against final invoice.
6.17 Kale Print shall not be held liable for inks wearing off through general wear and tear.
6.18 Any change or correction to any film, bromides, artwork and/or any printing surface supplied by the Customer which is deemed necessary by the Printer to ensure correctly finished work shall be invoiced as an extra.
7.1 Kale Print and Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Kale Print all amounts owing for the particular Goods; and
(b) the Client has met all other obligations due by the Client to Kale Print in respect of all contracts between Kale Print and the Client.
7.2 Receipt by Kale Print 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 Kale Print’s ownership or rights in respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Kale Print 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 Kale Print to the Client Kale Print may give notice in writing to the Client to return the Goods or any of them to Kale Print. 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 Kale Print 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 Kale Print for the Goods, on trust for Kale Print; 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 Kale Print will be the owner of the end products; and
(e) if the Client fails to return the Goods to Kale Print then Kale Print or Kale Print’s agent may (as the invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Goods are situated and take possession of the Goods, and Kale Print will not be liable for any reasonable loss or damage suffered as a result of any action by Kale Print under this clause.
8. Personal Property Securities Act 1999 (“PPSA”)
8.1 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 Kale Print to the Client (if any) and all Goods that will be supplied in the future by Kale Print to the Client.
8.2 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 Kale Print may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, Kale Print 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 Kale Print; and
(d) immediately advise Kale Print 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.
8.3 Kale Print and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
8.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
8.5 Unless otherwise agreed to in writing by Kale Print, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
8.6 The Client shall unconditionally ratify any actions taken by Kale Print under clauses 8.1 to 8.5.
9. Security And Charge
9.1 Despite anything to the contrary contained herein or any other rights which Kale Print may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to Kale Print or Kale Print’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that Kale Print (or Kale Print’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should Kale Print elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify Kale Print from and against all Kale Print’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Kale Print or Kale Print’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 9.1
10. Client’s Disclaimer
10.1 The Client hereby disclaims any right to rescind, or cancel any contract with Kale Print or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by Kale Print and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgment.
11.1 The Client shall inspect the Goods on delivery and shall within three (3) days of delivery (time being of the essence) notify Kale Print of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Kale Print an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Kale Print has agreed in writing that the Client is entitled to reject, Kale Print’s liability is limited to either (at Kale Print’s discretion) replacing the Goods or repairing the Goods.
11.2 In the event the Customer requires corrections on and after the first proof including alterations in style, then these corrections shall be charged as a variation to the Price as per clause 3.2 and shall not be deemed a defect.
11.3 Goods will not be accepted for return other than in accordance with 11.1 above.
12. Consumer Guarantees Act 1993
12.1 If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by Kale Print to the Client
13. Intellectual Property
13.1 Where Kale Print has designed, drawn or written sketches, dummies, designs or Goods for the Client, then the copyright in those designs and drawings and documents shall remain vested in Kale Print, and shall only be used by the Client at Kale Print’s discretion.
13.2 The Client warrants that all designs or instructions to Kale Print will not cause Kale Print to infringe any patent, registered design, trademark, or the Fair Trading Act 1986 or any other statute of provision thereof, in the execution of the Client’s order and the Client agrees to indemnify Kale Print against any action taken by a third party against Kale Print in respect of any such infringement.
13.3 The Client agrees that Kale Print may use any documents, designs, drawings or Goods created by Kale Print for the purposes of advertising, marketing, or entry into any competition.
13.4 Drawings, sketches, painting, photographs, designs or typesetting furnished by the Printer, dummies, models or the like devices made or procured and manipulated by the Printer and negatives, positives, blocks, engravings, stencils, dies, plates or cylinders made from the Printer’s original design, or from a design furnished by the Customer, remain the exclusive property of the Printer unless otherwise agreed upon in writing.
13.5 Sketches and dummies submitted by the Printer on a speculative basis shall remain the property of the Printer. They shall not be used for any purpose other than that nominated by the Printer and no ideas obtained there from may be used without the consent of the Printer. The Printer shall be entitled to compensation from the Customer for any unauthorised use of such sketches and dummies.
13.6 Disks, artwork and film supplied by the Customer and/or other authorised persons remain the property of the Customer. Unless otherwise indicated in writing the Printer shall assume these disks, artwork and film to be duplicate copies of the original.
14. Default & Consequences Of Default
14.1 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 Kale Print’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
14.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by Kale Print.
14.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Kale Print from and against all costs and disbursements incurred by Kale Print in pursuing the debt including legal costs on a solicitor and own client basis and Kale Print’s collection agency costs.
14.4 Without prejudice to any other remedies Kale Print may have, if at any time the Client is in breach of any obligation (including those relating to payment) Kale Print may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. Kale Print will not be liable to the Client for any loss or damage the Client suffers because Kale Print has exercised its rights under this clause.
14.5 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 become immediately due and payable.
14.6 Without prejudice to Kale Print’s other remedies at law Kale Print shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Kale Print shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Kale Print becomes overdue, or in Kale Print’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.
15. Cancellation and Suspension
15.1 Kale Print may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Kale Print shall repay to the Client any sums paid in respect of the Price. Kale Print shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.2 In the event that the Client cancels delivery of the Goods the Client shall be liable for any loss incurred by Kale Print (including, but not limited to, any loss of profits) up to the time of cancellation.
15.3 In the event that the Client wishes to cancel a contract for the printing of periodical publications, then the following notice periods are required:
(a) weekly and fortnightly publications shall require three (3) months notice; and
(b) monthly and quarterly publications shall require six (6) months notice.
15.4 In the event the Client requests the work to be suspended for a period of thirty (30) days or more, then Kale Print shall be entitled to payment in full for all work in progress at the time of the suspension. Kale Print may revise the quotation for the uncompleted portion of the order before proceeding.
15.5 Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.
16. Privacy Act 1993
16.1 The Client and the Guarantor/s (if separate to the Client) authorises Kale Print to:
(a) collect, retain and use any information about the Client and/or Guarantors, for the purpose of assessing the Client’s and/or Guarantors creditworthiness or marketing products and services to the Client and/or Guarantors; and
(b) disclose information about the Client and/or Guarantors, whether collected by Kale Print from the Client and/or Guarantors directly or obtained by Kale Print from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client and/or Guarantors.
16.2 Where the Client and/or Guarantors are an individual the authorities under clause 16.1 are authorities or consents for the purposes of the Privacy Act 1993.
16.3 The Client and/or Guarantors shall have the right to request Kale Print for a copy of the information about the Client and/or Guarantors retained by Kale Print and the right to request Kale Print to correct any incorrect information about the Client and/or Guarantors held by Kale Print.
17. Unpaid Kale Print’s Rights
17.1 Where the Client has left any item with Kale Print for repair, modification, exchange or for Kale Print to perform any other Service in relation to the item and Kale Print has not received or been tendered the whole of the Price, or the payment has been dishonoured, Kale Print shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while Kale Print is in possession of the item;
(c) a right to sell the item.
17.2 The lien of Kale Print shall continue despite the commencement of proceedings, or judgement for the Price having been obtained.
18.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
18.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.
18.3 Kale Print shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Kale Print of these terms and conditions.
18.4 In the event of any breach of this contract by Kale Print the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
18.5 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Kale Print nor to withhold payment of any invoice because part of that invoice is in dispute.
18.6 Kale Print may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
18.7 Kale Print reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Kale Print notifies the Client of such change.
18.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
18.9 The failure by Kale Print to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Kale Print’s right to subsequently enforce that provision.