Terms & Conditions

1. Definitions

1. “Ellar Graphics” means Ellar Graphics Ltd, its successors and assigns or any person acting on behalf of and with the authority of Ellar Graphics Ltd.
2. “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting Ellar Graphics to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
   
   1. if there is more than one Client, is a reference to each Client jointly and severally; and
   2. if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
   3. includes the Client’s executors, administrators, successors and permitted assigns.
3. “Goods” means all Goods and/or Services provided by Ellar Graphics to the Client, at the Client’s request, from time to time (including any apparel, designs, drawings, or any manuscript, advertisement, general copy, graphics, digital display material and/or content supplied by the Client or any other product, created or deposited incidentally by Ellar Graphics in the course of supplying to the Client any Goods (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other)) and are as described on the invoices, quotation, work authorisation or any other forms as provided by Ellar Graphics to the Client.
4. “Materials” shall mean any relevant electronic data files, photographs, illustrations, artwork, transparencies, editorial matter, notes, text or other copy required by Ellar Graphics to provide the Goods under an Order.
5. “Order” shall mean a request (including the Client sending Ellar Graphics any electronic files) by the Client to Ellar Graphics for the supply of Goods, and includes all Services to be carried out to fulfil that request.
6. “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Goods as agreed between Ellar Graphics and the Client in accordance with clause 7

2. Acceptance

1. The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
2. These terms and conditions may only be amended with the consent of both parties in writing and shall prevail to the extent of any inconsistency with any other document or contract between the Client and Ellar Graphics.
3. All literature, samples, and specifications submitted with this quotation are approximate only and the data and descriptions contained in catalogues and other advertising material while being as accurate as possible may not necessarily be identical with Goods and Services Ellar Graphics supplies, and Ellar Graphics reserves the right to supply Goods that have minor modifications in specifications as Ellar Graphics sees fit.
4. The descriptions, illustrations and performances contained in catalogues, other advertising material and price lists do not form part of the contract of sale of the Goods.
5. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 22 of the Electronic Transactions Act 2002 or any other applicable provisions of that Act or any Regulations referred to in that Act.

3. Errors and Omissions

1. The Client acknowledges and accepts that Ellar Graphics shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
   
   1. resulting from an inadvertent mistake made by Ellar Graphics in the formation and/or administration of this contract; and/or
   2. contained in/omitted from any literature (hard copy and/or electronic) supplied by Ellar Graphics in respect of the Services.
2. In the event such an error and/or omission occurs in accordance with clause 1, and is not attributable to the negligence and/or wilful misconduct of Ellar Graphics; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.

4. Authorised Representatives

1. The Client acknowledges that Ellar Graphics (for the duration of the Services) liaises directly with one (1) or more authorised representatives, and that once introduced as such to Ellar Graphics, that person or persons shall have the full authority of the Client to order any Goods and/or to request any variation thereto on the Client’s behalf. The Client accepts that they will be solely liable to Ellar Graphics for all additional costs incurred by Ellar Graphics (including Ellar Graphics’s profit margin) in providing any Services or variation/s requested thereto by the Client’s duly authorised representative.
2. In the event that the Client’s duly authorised representatives as per clause 1 are to have only limited authority to act on the Client’s behalf then the Client must specifically and clearly advise Ellar Graphics in writing of the parameters of the limited authority granted to their representatives.

5. Proof Reading / Proof Approval

1. Whilst every care is taken by Ellar Graphics to carry out the instructions of the Client, it is the Client’s responsibility (where applicable) to undertake a proof reading of the produced sample, and Ellar Graphics shall be under no liability whatsoever for any errors which appear in the proof and which are not corrected by the Client or the Client’s Agent before Ellar Graphics’s specified deadline for approving proofs.
2. Ellar Graphics reserves the right to suspend, or decline to carry out, the order in the event the Client or the Client’s Agent fails to approve the proofs before the specified deadline.
3. At Ellar Graphics’s sole discretion, proofs will not be provided to the Client or the Client’s Agent where Materials have been received after Ellar Graphics’s specified deadline for Materials.
4. Ellar Graphics provides no guarantee that production prints will exactly match colour proofs because of variations in proof preparation methods and substrates. Ellar Graphics will however, use its best endeavours to provide a commercially acceptable finished product.
5. The Client shall indemnify, and keep indemnified, Ellar Graphics at all times against all actions, proceedings, claims, demands, liabilities, either express or implied, and all costs, losses, losses of profit, damages and expenses whatsoever which may be taken against Ellar Graphics, or incurred or become payable by Ellar Graphics, resulting or arising from the Client being in breach of clause 1.

6. Change in Control

1. The Client shall give Ellar Graphics not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees or business practice). The Client shall be liable for any loss incurred by Ellar Graphics as a result of the Client’s failure to comply with this clause.

7. Price and Payment

1. At Ellar Graphics’s sole discretion the Price shall be either:
   
   1. as indicated on any invoice provided by Ellar Graphics to the Client; or
   2. the Price as at the date of delivery of the Goods according to Ellar Graphics’s current price list; or
   3. Ellar Graphics’s quoted price (subject to clause 2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
2. Ellar Graphics reserves the right to change the Price:
   
   1. if a variation to the Goods which are to be supplied is requested. Where the Client requests any additional work (including inserting, binding, printing, additional sections, pages or colour, graphic design work), the Client acknowledges that the supply of the Goods may be delayed (and as such clause 6 shall apply); or
   2. in the event of increases to Ellar Graphics in the cost of labour or materials, or fluctuations in currency exchange rates, which are beyond Ellar Graphics’s control.
3. The Client shall pay to Ellar Graphics all additional costs incurred by Ellar Graphics as a result of the Client’s non-compliance with Ellar Graphics’s instructions, late delivery of Materials, omissions made by the Client, incorrect instructions provided by the Client, any re-plating or re-printing required, additional Goods requested by the Client, the transport, storage or handling of Materials, the delivery of hard-copy proofs, and other charges, fees or disbursements referred to in these terms and conditions not otherwise specified in this clause.
4. Variations will be charged for on the basis of Ellar Graphics’s quotation, and will be detailed in writing, and shown as variations on Ellar Graphics’s invoice. The Client shall be required to respond to any variation submitted by Ellar Graphics within ten (10) working days. Failure to do so will entitle Ellar Graphics to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
5. At Ellar Graphics’s sole discretion a non-refundable deposit may be required.
6. Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by Ellar Graphics, which may be:
   
   1. on completion of the Services for non-approved Client credit accounts;
   2. before delivery of the Goods;
   3. for certain approved Client’s, 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;
   4. the date specified on any invoice or other form as being the date for payment; or
   5. failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Ellar Graphics.
7. Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge per transaction may apply), or by any other method as agreed to between the Client and Ellar Graphics.
8. 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 Ellar Graphics nor to withhold payment of any invoice because part of that invoice is in dispute.
9. Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to Ellar Graphics an amount equal to any GST Ellar Graphics must pay for any supply by Ellar Graphics under this or any other contract for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

8. Order completion and Delivery

1. The Client acknowledges that the completion of the order is subject to operational availability of Ellar Graphics’s resources. Materials not received by Ellar Graphics by the specified deadline, will delay the completion of the Client’s order and will be reliant on when Ellar Graphics’s resources are next available, having regard to other demands for their use or maintenance.
2. Delivery (“Delivery”) of the Goods is taken to occur at the time that:
   
   1. the Client or the Client’s nominated carrier takes possession of the Goods at Ellar Graphics’s address; or
   2. Ellar Graphics (or Ellar Graphics’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
3. The Client must take delivery by receipt or collection 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 Ellar Graphics shall be entitled to charge a reasonable fee for redelivery and/or storage.
4. Whilst every endeavour will be made to deliver the correct quantity ordered, the Client acknowledges that the difficulty of producing exact quantities, estimates and/or orders are conditional upon a margin of ten percent (10%) being allowed for shortages or over-runs (owing to human and/or machine/computer error), which may be charged for, or deducted from, the Price on a pro rata basis to reflect the actual quantity of Goods produced.
5. Ellar Graphics may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6. Any time or date given by Ellar Graphics to the Client is an estimate only. The Client must still accept delivery of the Goods even if late and Ellar Graphics shall not be liable for any loss or damage whatsoever due to failure by Ellar Graphics to deliver the Goods and/or Services (or any of them) promptly or at all, where due to circumstances beyond the control of Ellar Graphics (including, but not limited to, delays caused by the Client in not providing information, designs or proof approvals by the agreed time and schedule).

9. Risk

1. Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
2. If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Ellar Graphics is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Ellar Graphics is sufficient evidence of Ellar Graphics’s rights to receive the insurance proceeds without the need for any person dealing with Ellar Graphics to make further enquiries.
3. If the Client requests Ellar Graphics to leave Goods outside Ellar Graphics’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
4. Any failure by the Client to adhere to Ellar Graphics’s deadlines shall not release the Client from their obligations under these (including those relating to payment).
5. Where the Client supplies Materials, adequate quantities shall be supplied to cover spoilage. Sheets and other Materials shall not be counted or checked when received unless requested by the Client in writing. An additional charge may be made by Ellar Graphics in respect of any such counting or checking requested by the Client.
6. In the case of property and Materials left with Ellar Graphics without specific instructions, Ellar Graphics shall be free to dispose of them at the end of twelve months after his receiving them and to accept and retain any proceeds gained from such disposal to cover Ellar Graphics’s costs in holding and handling such items.
7. Where Materials or equipment are supplied by the Client for the provision of Services Ellar Graphics shall accept no liability for imperfect work caused by defects in, or the unsuitability of, such Materials or equipment for the Services.
8. Any change or correction to any film, bromides, artwork and/or any printing surface supplied by the Client which is deemed necessary by Ellar Graphics to ensure correctly finished work shall be invoiced as an extra.

10. Availability and Quality

1. The Client acknowledges that, if the Material types required for the Order are unavailable, Ellar Graphics may (at their sole discretion) substitute the Materials with another similar Material product.
2. Ellar Graphics will use its best efforts to supply the Goods to the Client at the highest quality capable of being produced by Ellar Graphics’s available resources, subject to the Client adhering to Ellar Graphics’s instructions and these terms and conditions. In the event the quality of the Goods supplied by Ellar Graphics is lower than that requested in the Client’s Order, at Ellar Graphics’s discretion, the Price will be adjusting accordingly to reflect the quality difference on a per-unit basis.

11. Material or Equipment Supplied by Client

1. Where the Client supplies material or equipment (“Property”) to Ellar Graphics for the supply of the Goods:
   
   1. the Property will be held by Ellar Graphics at the Client’s risk, and:
      
      1. the Client agrees to submit Materials before Ellar Graphics’s required deadline for receipt of such Materials; and
      2. Ellar Graphics shall not be liable to the Client for loss, howsoever caused, of any data stored on disks, tapes, compact disks or other media supplied by the Client to Ellar Graphics; and
      3. subject to sub-clause (i), Ellar Graphics will not be liable for the damage, loss or destruction of any Property of the Client in Ellar Graphics’s possession, unless the loss or damage is due to the failure of Ellar Graphics to exercise due care and still in handling or storing the Property.
   2. adequate quantities shall be supplied to cover spoilage. Sheets and other materials shall not be counted or checked when received, unless requested by the Client in writing, and this shall be charged as an extra in accordance with clause 7; and
   3. Ellar Graphics accepts no responsibility for imperfect work caused by defects in or unsuitability of such Property; and
   4. title to any Property incorporated in the Goods passes to Ellar Graphics at the time of incorporation; and
   5. Ellar Graphics has no obligation to insure any Property in Ellar Graphics’s possession. The Client must pay the cost of any insurance arranged by Ellar Graphics as the request of the Client.
2. In the case of Property left with Ellar Graphics without specific instructions, Ellar Graphics shall be free to dispose of them in accordance with uncollected goods upon expiry of three (3) months after receiving them or immediately following the completion of the Order, whichever is agreed upon between the two parties, and to accept and retain the proceeds, if any, to cover Ellar Graphics’s own costs in holding and handling them.

12. Fabrics and Printing

1. The Client acknowledges:
   
   1. artwork for process printing on t-shirts are different to that of paper printing; Ellar Graphics takes no responsibility for supplied artwork when resulting print does not meet the Client’s expectations. Screens and sampling costs will be charged in accordance with clause 2.
   2. sublimation is a process whereby the fabric dye migrates directly with the printed ink, causing the print to become faded or dull. It is recommended that fabrics be colour tested or sampling to be done before production commences. This usually occurs with printing on polycottons, synthetics and poly-microns, etc. Ellar Graphics will not accept any claim for defects resulting from sublimation; and
   3. whilst Ellar Graphics will take all due care, no responsibility is taken for poor fabrics which burn/shrink because they are unable to withstand flash curing. It is the Client’s responsibility to ensure that all garments/fabrics supplied are of sufficient quality and strength; and
   4. stock not in Ellar Graphics’s warehouse at least seventy-two (72) hours prior to the agreed date of Delivery will be subject to rescheduling without notice. It is the Client’s responsibility to ensure that all stock has been organised and delivered to Ellar Graphics’s premises in a timely manner; and
   5. if the stock supplied by the Client show discrepancies with the final size breakdown/count/colour or product supplied, etc., Ellar Graphics will place the Client’s order on hold until the discrepancies have been rectified.
2. Imprints or any legal obligations required to appear on any printed material are the responsibility of the Client. Ellar Graphics reserves the right to place its imprint on all printed material unless specifically requested otherwise.

13. Title

1. Ellar Graphics and the Client agree that ownership of the Goods shall not pass until:
   
   1. the Client has paid Ellar Graphics all amounts owing to Ellar Graphics; and
   2. the Client has met all of its other obligations to Ellar Graphics.
2. Receipt by Ellar Graphics 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.
3. It is further agreed that until ownership of the Goods passes to the Client in accordance with clause 1:
   
   1. the Client is only a bailee of the Goods and must return the Goods to Ellar Graphics on request.
   2. the Client holds the benefit of the Client’s insurance of the Goods on trust for Ellar Graphics and must pay to Ellar Graphics the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
   3. the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for Ellar Graphics and must pay or deliver the proceeds to Ellar Graphics on demand.
   4. the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Ellar Graphics and must sell, dispose of or return the resulting product to Ellar Graphics as it so directs.
   5. the Client irrevocably authorises Ellar Graphics to enter any premises where Ellar Graphics believes the Goods are kept and recover possession of the Goods.
   6. Ellar Graphics may recover possession of any Goods in transit whether or not delivery has occurred.
   7. the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Ellar Graphics.
   8. Ellar Graphics may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.

14. Personal Property Securities Act 1999 (“PPSA”)

1. Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
   
   1. these terms and conditions constitute a security agreement for the purposes of the PPSA; and
   2. a security interest is taken in all Goods and/or collateral (account) – being a monetary obligation of the Client to Ellar Graphics for Services – that have previously been supplied and that will be supplied in the future by Ellar Graphics to the Client.
2. The Client undertakes to:
   
   1. sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Ellar Graphics may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
   2. indemnify, and upon demand reimburse, Ellar Graphics 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;
   3. not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of Ellar Graphics; and
   4. immediately advise Ellar Graphics 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.
3. Ellar Graphics and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
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.
5. Unless otherwise agreed to in writing by Ellar Graphics, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
6. The Client shall unconditionally ratify any actions taken by Ellar Graphics under clauses 1 to 14.5.

15. Security and Charge

1. In consideration of Ellar Graphics agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
2. The Client indemnifies Ellar Graphics from and against all Ellar Graphics’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Ellar Graphics’s rights under this clause.
3. The Client irrevocably appoints Ellar Graphics and each director of Ellar Graphics as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Client’s behalf.

16. Defects and Returns

1. The Client shall inspect the Goods on delivery and shall within twenty-four (24) hours of delivery (time being of the essence) notify Ellar Graphics of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Ellar Graphics 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 Ellar Graphics has agreed in writing that the Client is entitled to reject, Ellar Graphics’s liability is limited to either (at Ellar Graphics’s discretion) replacing the Goods or repairing the Goods.
2. Goods will not be accepted for return other than in accordance with 1 above, and provided that:
   
   1. Ellar Graphics has agreed in writing to accept the return of the Goods; and
   2. the Goods are returned at the Client’s cost within seven (7) days of the delivery date; and
   3. Ellar Graphics will not be liable for Goods which have not been stored or used in a proper manner; and
   4. the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
3. Subject to clause 1, non-stocklist items or Goods made to the Client’s specifications are not acceptable for credit or return.

17. Warranty

1. For Goods not manufactured by Ellar Graphics, the warranty shall be the current warranty provided by the manufacturer of the Goods. Ellar Graphics shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.

18. Consumer Guarantees Act 1993

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 Ellar Graphics to the Client.

19. Intellectual Property

1. Intellectual property rights in all artistic and literary work authored by Ellar Graphics shall be the property of Ellar Graphics. The Client:
   
   1. warrants that the Client has copyright in, or a license to authorise Ellar Graphics to reproduce, all artistic and literary work supplied by the Client to Ellar Graphics for the purposes of supplying the Goods, and the Client hereby expressly authorises Ellar Graphics to reproduce all and any of such work for the purposes aforesaid; and
   2. hereby indemnifies and agrees to keep indemnified Ellar Graphics against all liability, losses or expenses incurred by Ellar Graphics in relation to, or in any way directly or indirectly connected with any breach of copyright or of any right in relation to copyright in such literary or artistic work supplied as aforesaid; and
   3. the Client is hereby granted a non-exclusive license to use the copyright in any literary and/or artistic work authored by Ellar Graphics for the purposes of the supply of the Goods, however the exercise of such license shall be conditional upon Ellar Graphics having received all monies due to Ellar Graphics under these terms and conditions.
2. The Client warrants that all designs, specifications or instructions given to Ellar Graphics will not cause Ellar Graphics to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Ellar Graphics against any action taken by a third party against Ellar Graphics in respect of any such infringement.
3. The Client agrees that Ellar Graphics may (at no cost) use for the purposes of marketing or entry into any competition, any Goods which Ellar Graphics has created for the Client.
4. The Client must keep confidential, and not use, any ideas communicated by Ellar Graphics to the Client without Ellar Graphics’s written consent.

20. Confidential Information/Conflict of Interest

1. The Client assumes liability for all loss or damage suffered by Ellar Graphics as a result of breach of confidentiality undertaken by itself, or its employees or agents.
2. The obligations of confidentiality shall survive the finalisation or discontinuance of any agreement between the Client and Ellar Graphics.
3. Neither party will use the other party’s Confidential Information without prior written consent (including manuals and other materials and aids), except strictly for the purposes contemplated by this contract, and a party may only disclose the other party’s Confidential Information:
   
   1. if required by law;
   2. to exercise their rights under this contract;
   3. if necessary to perform their obligations under this contract;
   4. if the other party has provided their written consent to the disclosure;
   5. if the Confidential Information is already in the public domain (otherwise than as a result of disclosure in breach of this contract).
4. Ellar Graphics is obliged to remain vigilant to, and to advise the Client of, any conflict of interest that may potentially impact or harm the Client. To avoid conflict of interest and commercial sensitivities, it is agreed by Ellar Graphics that any and all information regards the Client (and their business, commercial agenda and employees) shall remain confidential at all times and shall only be disclosed in the event of legal order or obligation.
5. The obligations of confidentiality shall survive the finalisation or discontinuance of any agreement between the Client and Ellar Graphics.

21. Default and Consequences of Default

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 Ellar Graphics’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
2. If the Client owes Ellar Graphics any money the Client shall indemnify Ellar Graphics from and against all costs and disbursements incurred by Ellar Graphics in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Ellar Graphics’s collection agency costs, and bank dishonour fees).
3. At Ellar Graphics’s sole discretion, should any account become overdue from the agreed payment due date then an amount of ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied as a late payment fee which sum shall become immediately due and payable.
4. Further to any other rights or remedies Ellar Graphics may have under this contract, if a Client has made payment to Ellar Graphics, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Ellar Graphics under this clause 20 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this contract.
5. Without prejudice to Ellar Graphics’s other remedies at law Ellar Graphics shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Ellar Graphics shall, whether or not due for payment, become immediately payable if:
   
   1. any money payable to Ellar Graphics becomes overdue, or in Ellar Graphics’s opinion the Client will be unable to make a payment when it falls due;
   2. the Client has exceeded any applicable credit limit provided by Ellar Graphics;
   3. 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
   4. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

22. Cancellation

1. Without prejudice to any other remedies Ellar Graphics may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Ellar Graphics may suspend or terminate the supply of Goods to the Client. Ellar Graphics will not be liable to the Client for any loss or damage the Client suffers because Ellar Graphics has exercised its rights under this clause.
2. Ellar Graphics 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 Ellar Graphics shall repay to the Client any money paid by the Client for the Goods. Ellar Graphics shall not be liable for any loss or damage whatsoever arising from such cancellation.
3. In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by Ellar Graphics as a direct result of the cancellation (including, but not limited to, any loss of profits).
4. Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

23. Privacy Act 1993

1. The Client authorises Ellar Graphics or Ellar Graphics’s agent to:
   
   1. access, collect, retain and use any information about the Client;
2. (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
3. for the purpose of marketing products and services to the Client.
   
   1. disclose information about the Client, whether collected by Ellar Graphics from the Client directly or obtained by Ellar Graphics 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.
4. Where the Client is an individual the authorities under clause 1 are authorities or consents for the purposes of the Privacy Act 1993.
5. The Client shall have the right to request Ellar Graphics for a copy of the information about the Client retained by Ellar Graphics and the right to request Ellar Graphics to correct any incorrect information about the Client held by Ellar Graphics.

24. Service of Notices

1. Any written notice given under this contract shall be deemed to have been given and received:
   
   1. by handing the notice to the other party, in person;
   2. by leaving it at the address of the other party as stated in this contract;
   3. by sending it by registered post to the address of the other party as stated in this contract;
   4. if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
   5. if sent by email to the other party’s last known email address.
2. Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

25. Trusts

1. If the Client at any time upon or subsequent to entering in to the contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not Ellar Graphics may have notice of the Trust, the Client covenants with Ellar Graphics as follows:
   
   1. the contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
   2. the Client has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.
   3. The Client will not without consent in writing of Ellar Graphics (Ellar Graphics will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
2. the removal, replacement or retirement of the Client as trustee of the Trust;
3. any alteration to or variation of the terms of the Trust;
4. any advancement or distribution of capital of the Trust; or
5. any resettlement of the trust property.

26. General

1. Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising hereunder, shall be submitted to, and settled by, arbitration in accordance with the Arbitration Act 1996 or its replacement(s).
2. The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. 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.
3. 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 Tauranga Courts of New Zealand.
4. Ellar Graphics 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 Ellar Graphics of these terms and conditions (alternatively Ellar Graphics’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
5. Ellar Graphics may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
6. The Client cannot licence or assign without the written approval of Ellar Graphics.
7. Ellar Graphics may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of Ellar Graphics’s sub-contractors without the authority of Ellar Graphics.
8. The Client agrees that Ellar Graphics may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for Ellar Graphics to provide Goods to the Client.
9. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them.