STANDARD TERMS & CONDITIONS OF TRADE
LIVE FX LIMITED
In this document:
Terms means the terms and conditions contained in this document, as amended by us and published on our website [www.Livefx.co.nz] from time to time and are to be read in conjunction with our online Contract.
We, us or our means Live FX Limited.
Services means the special film effects equipment, consumables and expendables, the technicians to deliver and operate equipment and personnel, or the stage and or theatrical pyrotechnics and flame and other special effects you have contracted us to provide through the online facility on our website.
Contract means the online contract you have entered into with us in accordance with all conditions instructions and directions appearing on our Website for the provision of any one or more or any combination of the Services for the cost stipulated for the respective services on our Website.
You, your or yours means the customer contracting with us to supply the Services, and where the context so admits, any person providing a personal guarantee of the performance of this contract by that customer.
You have entered into an online Contract with us for the provision of our Services via the online facility on our Website. Your entry into that contract means that you have accepted all terms and conditions of that contract, including but not limited to the price of the Services.
That contract is a legally binding contract and is deemed to contain these Terms as if they were expressly set out in it.
If you are not an individual, by contracting with us as set out above, you warrant that you are authorised to enter into that contract and these Terms on behalf of the customer. If you sign as a director or trustee of a customer then you are personally liable under the contract and these terms.
All drawings, specifications, descriptive matter or advertising issued by us and any descriptions, illustrations or particulars of equipment or actual special effects provided by us as part of the Services, such as weights, dimensions, performance or other attributes are approximates only and do not form part of any contract as between us. Any deviation or error in these matters do not vitiate any contract between us or give rise to any claim in relation to those matters.
To the maximum extent permitted by law we do not warrant or guarantee the quality or workmanship or fitness for purpose of any of the Services. Any warranties provided in relation to actual equipment or consumables provided in the course of the provision of the services are those of the manufacturer.
Items which are out of stock or not available between the date of the Contract and the commencement date of the provision of the services may be substituted with or exchanged for items of an equivalent value. Unless such substitution or exchange causes a material change to the Contract value, the cost of supply of the Services will remain unchanged.
4. Your Obligations
You must ensure that all information provided to us is true, accurate and not misleading
You must act reasonably and take reasonable care to protect your own interests, including managing all safety risks associated with the provision of the services, and following any reasonable direction we may give and appropriately directing your own employees, servants and agents in relation to these things
5. Provision of Services
We will at all times use our best endeavours to provide the Services at the location and on the dates required for the provision of the Services.
You have no right of action for damages or otherwise against us and release us from any claim for loss or damage occurring by reason of any failure or delay in the provision of the Services where such failure or delay is not directly attributable to our gross negligence.
In the event that we are required to store any equipment required as part of the Services, all costs or expenses incurred in relation to such storage, including related insurance, of such equipment pending its delivery to enable provision of the Services are payable by you.
6. Goods and Services Tax
Unless otherwise stated, all amounts and prices provided in an Contract or otherwise are exclusive of GST. Where the service provided is subject to GST, it will be added and charged to you.
7. Price Increases
Amounts and prices stated in the Contract are those at the date of the Contract. If you require any changes to the Contract which affect the cost or rates for insurance, freight, cartage or shipping expenses, duties, exchange rates, sorting and stacking costs, costs of materials or any other amounts used to calculate the price or amounts stated in the contract, or if those inputs increase in cost before acceptance or during the currency of our contract, any increase in those amounts are for your account and will increase the price accordingly.
8. Accounts Online Credit Facility and Late Payment Interest
Where you have elected to pay for the provision of the services online, payment is to be made strictly in accordance with any instructions and directions appearing on our website.
Subject to the satisfaction of the conditions appearing on our website in all respects, you may apply for and be granted an online credit facility.
Where the cost of Services specified in a Contract exceeds $30,000.00 we require you to pay us a deposit of fifty (50) percent of such cost.
Unless otherwise stated in a Contract, all amounts due must be paid in full on or before the 20th day of the month following provision of the Services.
If payment is not made on or before the expiry of 7 days from the due date for payment then interest at the rate of five (5) per cent above your Bank’s interest rate for unsecured overdrafts prevailing at the due date for payment will be charged on the outstanding debt until payment is made by you.
9. Outstanding Accounts
If any account remains outstanding for a period of 60 days or more, without limitation to any other rights and remedies we may have, you authorise us to provide your particulars and the particulars of the unpaid debt to any credit reporting agency to have the default in payment listed.
All costs and disbursements incurred by us in recovering payment of any overdue account or in enforcing our rights under these Terms including, without limitation, legal costs on a solicitor and client basis are payable by you.
We may retain any documents or goods held on your behalf pending payment of any outstanding account.
10. Retention of Title
We reserve the following rights in relation to all equipment and consumables (“goods”) provided by us for the performance of the Services until all amounts owing by you to us in respect of those goods are paid in full:
(i) ownership of the goods,
(ii) to enter your premises (or the premises where the goods are located) without liability for trespass or any resulting damage to retake possession of the goods, and
(iii) to keep or resell any of the goods so repossessed.
In respect of the resale of the goods pursuant to this clause, we will apply the net proceeds of sale firstly towards the payment of the unpaid invoice with respect to those goods, then towards any other unpaid invoices and if there is any surplus, the surplus will be paid to you. If there is a deficiency, we may recover the amount of that deficiency from you as a debt.
11. PPSR Registration
You agree that all goods supplied to you by us shall be subject to a purchase money security interest as that term is defined in the Personal Property Securities Act 1999 (PPSA) and we shall treat the security interest in the goods as continuing and subsisting security with priority over a registered general security and any unsecured creditors.
Accordingly, you grant us a security interest in the goods and in any proceeds arising from the sale of the goods or in any accessions in the goods or if the goods become an accession the accession and the goods, to secure your obligations to us including, but not limited to, your obligation to make payment for the goods.
You are responsible for all costs incurred by us in registering our interest under the PPSA and all costs of enforcement.
If we, pursuant to PPSA take all or any of the goods in satisfaction of your obligations to us you agree that you shall remain liable to us for the difference between the market value of the goods at the time they are first able to be sold by us free from all rights and interests of you and other persons pursuant to s 123(1) of the PPSA and the amount of your obligation for which you are in default.
You agree that you waive to the maximum extent possible at law the following rights under the PPSA:
i) receipt of a verification statement pursuant to s 148 and a statement of account under s 116;
ii) to recover a surplus under s 119;
iii) to receive notice from us to retain collateral under s 120(2) and to object to that proposal under s 121;
iv) to redeem collateral under s 132;
v) to reinstate a security agreement under s 133 and 134;
vi) to not have goods damaged or to be reimbursed in respect of such damage if we take possession of an accession or goods (see s 125 and 126);
vii) to refuse permission to remove an accession until security is given by us for reimbursement as per s 127;
viii) to receive notice of removal of an accession under s 129;
ix) to apply to court for an order concerning removal of an accession;
x) any other right in favour of you that can be lawfully contracted out of under the PPSA
You will immediately notify us of any change in your name, address, contact persons details to enable us to register a financing change statement if required. In the absence of such notification, the address we hold in our records is deemed to be your relevant address.
You will not agree, encourage or allow any other person to register a financing statement without the express written consent of us and shall notify us as soon as you are aware of any other person taking steps to registering an interest in the goods.
We may terminate any Contract at any time and in our absolute discretion if you are in breach of the Contract and these Terms and you have not remedied that breach, if capable of remedy, within ten (10) days’ written notice from us requiring remedy.
You may only terminate any Contract with our express written consent and on terms which indemnify us from all costs and losses in respect of the Contract sought to be cancelled and pay such amounts immediately on cancellation.
Subject to these Terms, on termination, any part of the price paid (if paid in advance) will be refunded to you within 14 days of the cancellation of the Contract, less the costs and losses incurred and associated with that Contract to the point of cancellation.
13. Release and Indemnity
You hereby release and indemnify us and agree to forever keep us released and indemnified from any and all cost, damage, liability, expense or loss, including indirect, consequential and special losses, that we may incur in relation to you or any third party, where the cost, damage, liability, expense or loss is caused by or contributed to by the by the provision of the Services, or as a consequence of delay in the provision of the Services for any reason including suspension of the provision of the Services.
This release and indemnity applies to the Services we have provided to you, and to to goods we have supplied in the course of provision of the Services
14. Safety, Risk and Insurance
We and all personnel provided to perform the Services work strictly in accordance with the NZF&VTG Code of Practice. If in our absolute discretion we determine that you have not taken all reasonable and practical steps to eliminate, isolate or minimize significant hazards in the place or places where the Services are to be provided, provision of the Services will be immediately suspended until we are satisfied that all such hazards have been eliminated, isolated or minimized as the case may be.
If costs, fines or expenses arise as a consequence of such suspension you will be liable for payment.
It is your responsibility to provide all necessary safety equipment required for the protection of all personnel associated with the provision of the Services (including production crew and cast) and your responsibility to ensure that an independent Safety Officer is present at all times during the provision of the Services.
Risk of damage to or loss of any goods provided to enable performance of the Services passes to you immediately upon dispatch from us, that is, whilst on transit for delivery to you or where we are storing the goods for in anticipation of the performance of the Services.
Any property of yours (being property other than the goods we are providing as part of an Estimate) in our possession, custody or control for whatever purpose remains at your risk as regards loss and damage and you agree to effect appropriate insurances against such loss and damage.
You shall be liable for and must maintain at your own cost a policy of insurance with a reputable insurer to cover all such risks (including all risks associated with Pyrotechnic effects) as may reasonably arise during the performance of the Services including public liability for an amount of not less than $10,000,000.
You shall note us as an interested party under the insurance policy. In the event that a claim is made under our insurance policy you agree that you will reimburse us upon demand for all costs and expenses incurred (including the payment of any excess) in the course of settlement of such claim.
Any warranty or condition which would otherwise be implied in any agreement between us or in these Terms (including, but not limited to, merchantability, suitability or fitness for purpose, quality, design, assembly, installation, operation of goods supplied in connection with the provision of the Services, or the Services themselves or otherwise) is expressly denied and is excluded to the maximum extent permitted by law.
16. Intellectual Property
In this clause, “intellectual property” means all methodologies, processes, inventions, discoveries and novel designs whether or not registrable including any invention of or developments or improvements to equipment, methods or techniques.
All rights we may hold in any intellectual property associated with goods sold or delivered remains our property, whether under licence from another or otherwise.
17. Force Majeure
Each of us will be released from our respective obligations under these Terms and any Contract (except as to payment and indemnity) in the event of national emergency, war, prohibitive governmental regulations or where any other cause beyond the reasonable control of either you or us, including strike, riot, lockout or trade disputes for a period of 30 days or more renders provision of the Services the subject of a Contract impossible.
To the maximum extent permissible by law you expressly consent to us using any personal information or any other information we hold on you for the purposes of investigating your creditworthiness including but not limited to conducting a credit check on you.
All notices required or permitted to be given under our Terms must be in writing and given by personal service, pre-paid postage, facsimile transmission or e-mail transmission at the addresses of the parties as stated in communications between us from time to time. Notice shall be deemed to have been served as follows:
(i) in the case of personal service at the date of such service;
(ii) in the case of facsimile transmission the date when the sender receives a report confirming the complete transmission of the facsimile;
(iii) in the case of pre-paid postage two working days following posting;
(iii) in the case of e-mail when receipt is acknowledged by the other party
(c) No waiver
No right under our Terms will be waived except as expressly agreed in writing and signed by us. We do not waive a right if we grant an extension or forbearance to you.
A waiver by us of any matter does not prejudice our rights in respect of any subsequent or other matter. Any non-exercise or partial exercise of, or any delay in exercising any right or remedy does not constitute a waiver of that right or remedy.
These Terms may only be amended in writing signed by each of us.
(d) Independent legal advice
You acknowledge that you have had adequate opportunity to obtain independent legal advice as to the meaning and effect of our Terms before they were accepted.
(e) Entire agreement
These Terms supersede all previous agreements between us and together with the conditions of contract appearing online on our Website, embody the entire agreement in relation to any Contract or any other arrangement between us (except where that other arrangement is governed by specific terms identified in a separate signed agreement between us in relation to that other arrangement).
Any previous correspondence, negotiations or representations between us do not bind either us or you and neither we nor you can rely on them.
We may delegate or sub-contract the performance of any obligation under the Contract and these Terms including the provision of the Services in our absolute discretion.
(g) No assignment
You may not assign the benefits or obligations under the Contract and these Terms without our express written consent, which may be withheld in our absolute discretion.
If (but for this clause) a provision of our Terms would be illegal, void, unenforceable or contravene any law, our Terms are to be varied so as to give effect to their intention or severed without affecting the enforceability of the other provisions and failing that, the offending provision is to be interpreted as if the provision was omitted.
(i) Governing law and jurisdiction
The Contract, these Terms and the transactions contemplated by them are governed by the laws of New Zealand including but not limited to the Electronic Transactions Act 2002.
We each irrevocably submit to the jurisdiction of the courts of New Zealand
We do not pass on any of customer’s information to anyone else; we keep our customers personal details confidential and use them only for the purpose we got them for. We do not sell, or share customer’s personal details with other businesses or vendors. According to the Privacy Act 1993 you may check and correct the accuracy of personal details at any time.
From time to time we may send you product information (including special offers) in the mail or by e-mail.
(k) Typographical Errors
If a product is listed at an incorrect price due to typographical error or error in pricing information received from our suppliers, we reserve the right to refuse or cancel any orders placed for product or service listed at the incorrect price. LiveFX Ltd. has the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is canceled, we will issue a credit or solve the problem in the way most suitable for you and our company.
LiveFX will only charge the actual cost of the shipping. All prices are exclusive of freight costs.
LiveFX Ltd will ship an in-stock product within 24hrs of order Customer will be contacted in event of any delays. Allow 1-3 days for delivery, or up to 6 for rural areas.
LiveFX Ltd shall not be liable for failure to deliver on expected time whether the delay has been due to causes beyond the control of LiveFX or otherwise.
If the Customer fails to sign or did not request for signature to be obtained on delivery of the Products, the Products shall be left at the delivery address, where courier driver feels it was safe to drop, and be deemed delivered at that point in time. It is the customer’s responsibility to give our company delivery instruction (like Signature required or Do not drop at front door etc), our General instructions to the courier drivers is to drop the boxes at the delivery address if no instructions were given by the customer to do otherwise. The property and risk in the Product shall pass to the Customer upon delivery to the Customer’s delivery address, and when the courier company confirms that it has been delivered to the right address.
Please inspect all items before signing for your parcel, if there is any damage you need to tell the courier driver and note it down when signing, as this is the Courier Company’s responsibility.
(m) Warranties and Returns of Goods/Refunds
All non-business customers have all the rights they are entitled to under the Consumer Guarantees Act 1993 and the LiveFX terms of trade do not deprive them of any of the rights or remedies they have under that Act.
Customer may return products ordered from LiveFX Ltd in situations of a “change of mind” or “incorrect ordering” for credit if:
1. The customer contacts LiveFX Ltd in advance and obtains a return number.
2. Return must be within 30 days of date of delivery
3. LiveFX retains discretion whether to fulfill this sort of return.
Returns and/or exchanges for incorrect products ordered or change of mind returns will be at the cost of the customer. This includes courier/postage fees for return products and courier/postage fees for parts sent from us as an exchange (this condition does notapply to faulty products).