1.1. In these Terms:
Contract means any agreement between Vision and the Customer to supply Goods and/or Services in accordance with the Quotation and these Terms.
Customer means any company, firm or individual or its agent to whom Vision provides Goods or Services.
Goods means all products and goods supplied by Vision to the Customer including any goods described on any invoices, quotation, work authorisation or any other forms provided by Vision to the Customer.
Guarantor mean any person or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.
Price means the price payable for the Goods and/or Services as agreed between Vision and the Customer.
Services mean all services supplied by Vision to the Customer and includes any advice or recommendations.
Terms means these Terms and Conditions together with any terms agreed in writing between Vision and the Customer (including in any Quotation).
Quotation means a quotation for any Goods and/or Services to be provided to the Customer by Vision.
Vision means Vision AV Limited (Company No. 636793).
2.1. These Terms will apply to the supply of all Goods and/or Services that Vision supplies to the Customer.
2.2. Without limiting any other methods of acceptance, the Customer’s request for the Vision to provide the Goods and/or Services will constitute the Customer’s acceptance of these Terms.
2.3. Where there is more than one Customer, these Terms will bind those persons jointly and severally. Where a Contract has been entered by an agent (or a person purporting to act as agent) on behalf of the Customer, these Terms will bind the agent and the Customer jointly and severally.
2.4. Vision may vary these Terms from time to time by giving no less than 14 days written notice to the Customer. Any varied Terms will apply to the provision of all Goods and/or Services to the Customer after the notice period referred to above.
3.1. All Quotations are given without commitment and if not accepted will automatically expire 30 days from the date of issue.
3.2. The Customer agrees that if new information becomes available or any mistake in the variables that the Quotation is based upon is identified, the Quotation may be cancelled or varied by Vision by written notice to the Customer.
4. PRICES AND PAYMENT
4.1. Unless otherwise specified in the Quotation, all payments by the Customer for Goods and/or Services are to be made strictly by the 20th of the month following the date of the invoice. Payments must be made in cash or by direct credit to Vision’s bank account and payment is to be made in full without deduction or set off.
4.2. 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.
4.3. The cost of any special packaging or handling caused by the Customer's requirements or requests shall be payable in addition to the Price.
4.4. If the Customer wishes to pay by credit card the Customer agrees to pay Vision an additional fee equal to 2% of the total charge to cover credit card charges incurred by Vision.
4.5. Vision may charge default interest of up to 10% per annum compounding monthly on all amounts that are not paid on time. If any amount that is owed to by the Customer continues to remain unpaid, Vision may also take action to recover that amount and charge the costs incurred in doing so.
5. RISK AND TITLE
5.1. All risk for the Goods passes to the Customer on delivery.
5.2. Where any Goods are sold from Vision’s store, delivery occurs on collection of the Goods from that store. If Vison has agreed to deliver and install the Goods then delivery occurs when those Goods are delivered and installed at the Customer’s nominated address.
5.3. Delivery of Goods to a third party carrier (whether engaged by Vision on the Customer’s behalf or the Customer directly), is deemed to be a delivery of the Goods to the Customer, and the third party carrier shall be deemed the Customer’s agent.
5.4. The costs of carriage and any insurance which the Customer directs Vision to incur shall be borne by the Customer. The failure of the Customer’s agent, carrier, courier, or other bailee to deliver the Goods shall not entitle the Customer to treat a Contract as cancelled.
5.5. Ownership of the Goods shall not pass to the Customer until:
a. the Customer has paid Vision all amounts owing for the particular Goods; and
b. the Customer has met all other obligations owed by the Customer to Vision under these Terms.
5.6. If the Goods are on-sold by the Customer or are combined or incorporated with other products of the Customer before title has passed, the proceeds of sale are to be held by the Customer for Vision until the Customer has paid all amounts payable by it to Vision.
6. PERSONAL PROPERTY SECURITIES ACT 1999 (PPSA)
6.1. The Customer acknowledges and agrees that these Terms constitute a security agreement for the purposes of the PPSA and a security interest is taken in all Goods supplied by Vision to the Customer until title in those Goods passes to the Customer in accordance with these Terms.
6.2. The Customer agrees, from time to time, to take any action and execute and deliver any document (including, without limitation, financing statements to be registered on the Personal Property Securities Register) reasonably requested by Vision to transfer, create, perfect, preserve, protect and enforce its security interest.
6.3. Vision and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
6.4. The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131,132 and 148 of the PPSA.
7. DELAY AND CANCELLATION
7.1. Vision will not be liable for any delay in supplying the Goods and/or Services resulting from actions beyond Vision’s reasonable control. If any delay is a result of any act by the Customer, Vision may, without prejudice to its other rights and remedies, require payment from the Customer for any part of the Goods and/or Services already supplied and terminate the Contract.
7.2. Vision may in its sole discretion immediately cancel the Contract at any time by giving written notice to the Customer. Vision will not be liable for any loss or damage whatsoever arising from such cancellation but will repay to the Customer any sums paid in respect of the Price except where the cancellation is due to the breach by the Customer of its obligations under these Terms.
7.3. Vision may, in its sole discretion, consider requests in writing by the Customer to vary or cancel any Contract. If Vision agrees to any such requests the Customer must pay any reasonable costs incurred by Vision up to the point of the variation or cancellation. Reasonable costs may include, without limitation, labour, transport or material costs.
8. LIMITATION OF LIABILITY
8.1. Vision provides a Hardware Limited Warranty for certain Goods supplied. Other than that warranty, all warranties and representations (including those expressed or implied by law) in respect of Vision’s Goods and Services are excluded to the extent permitted by law. The Customer will rely on their own judgement when purchasing any Goods and not in reliance on any recommendation or representation by Vision.
8.2. The provisions in the Consumer Guarantees Act 1993 do not apply to the extent the Customer is acquiring Goods and Services from Vision for the purposes of a business in terms of section 2 and 43 of that Act.
8.3. Vision’s liability to the Customer (whether in relation to contract, tort (including negligence) or otherwise) in respect of any Goods or Services provided to the Customer is limited to the value of the Price paid by the Customer under the applicable Contract.
8.4. Vision is not liable to the Customer for any special, indirect or consequential damage or loss of any kind under any cause of action arising under or in connection with the provision of the Goods or Services to the Customer.
8.5. The Customer indemnifies Vision and its directors, employees and agents against any loss or liability suffered or incurred at any time by Vision that is directly or indirectly caused by a breach of the Customer’s obligations under any Contract or these Terms.
9. INTELLECTUAL PROPERTY
9.1. Vision retains all intellectual property (including copyright) in all documents, drawings, designs or deliverables prepared by Vision. The Customer is entitled to use them or copy them only for the purpose for which they are intended and only if they have paid all amounts owing to Vision.
10. ASSIGNMENT AND SUBCONTRACTING
10.1. Vision may assign novate or transfer its rights and obligations under any Contract or these Terms at any time without the consent of the Customer.
10.2. Vision reserves the right to subcontract all or any part of the work to be performed under any Contract.
11. PRIVACY ACT 2020
a. to verify the Customer’s and any Guarantor’s identity for the purpose of providing the Goods and/or Services to the Customer;
b. to market Vision’s services and products to the Customer, including contacting the Customer electronically (e.g. by text or email for this purpose);
c. to improve the services and products that Vision provides to the Customer;
d. to any credit reference agency to undertake credit checks on the Customer and any Guarantor (if necessary) and to provide credit reporting services or to exercise any power of enforcement under these Terms;
e. to any business that supports Vision’s services and products (including any person that hosts or maintains any underlying IT system or data centre that Vision uses to provide its website or other services and products); and
f. to other third parties (for anonymised statistical information).
11.2. The authorities under clause 11.1 are authorities or consents for the purposes of the Privacy Act 2020.
12. FORCE MAJEURE
12.1. Neither party will be liable to the other for any failure to perform its obligations under this agreement by reason of any cause or circumstance beyond the party’s reasonable control including, acts of God, communication line failures, power failures, riots, strikes, lock-outs, labour disputes, fires, war, flood, earthquake or other disaster, pandemic (including COVID-19), epidemic or governmental action after the date of any Contract but excluding lack of funds for any reason (Force Majeure Event). The party affected must:
a. notify the other party as soon as practicable after the Force Majeure Event occurs and provide full information concerning the Force Majeure Event including an estimate of the time likely to be required to overcome it;
b. use its best endeavours to overcome the Force Majeure Event; and
c. continue to perform its obligations as far as practicable.
13. DISPUTE RESOLUTION
13.1. If a party considers that there is a dispute in respect of any matters arising out of or in connection with these Terms, then unless other provisions of these Terms govern the manner in which that dispute is to be resolved, that party shall immediately give notice to the other party setting out details of the dispute. The parties will endeavour in good faith to try to resolve the dispute between themselves within 10 Business Days of receipt of the notice. Neither party will commence legal proceedings against the other before following the procedure above except that this clause does not affect any party’s right to seek urgent interlocutory and/or injunctive relief.
14. PERSONAL GUARANTEE
14.1. In consideration of Vision entering into any Contract at the Customer’s request, each director and authorised signatory signing on behalf of any Customer that is a limited liability company (each a Guarantor):
a. personally guarantees payment of the Price and the performance of the Customer’s obligations under the Contract and these Terms;
b. indemnifies the Customer against all costs, losses, expenses and liabilities (including legal expenses on a full indemnity basis) incurred by Vision as a consequence of the Customer defaulting on its obligations to Vision.
14.2. The Guarantor is deemed to be principal debtor and liable as though the Guarantor were the Customer and Vision will be under no obligation to take proceedings against the Customer before taking proceedings against the Guarantor.
14.3. This guarantee and indemnity is a continuing guarantee and indemnity which applies in respect of all Goods or Services to be supplied to the Customer.
14.4. No release, delay or other indulgence given by Grape Vision to the Client or any other thing by which the Guarantor would have been released had the Guarantor been merely a surety will release, prejudice or affect the liability of the Guarantor as a guarantor or indemnifier.
14.5. If there is more than one Guarantor their liability under this guarantee and indemnity is joint and several.
14.6. The Guarantor acknowledges that it has had opportunity to obtain independent legal advice prior to providing this guarantee and indemnity.
15.1. To waive a right under these Terms that waiver must be in writing and signed by the waiving party.
15.2. If there is any conflict between these Terms and any other agreement between the parties then the provisions of these Terms will prevail unless Vision agrees otherwise in writing.
15.3. Any benefits expressly conferred on any third parties named or referred to in these Terms are intended to be enforceable by those third parties for the purposes of section 12 of the Contract and Commercial Law Act 2017.
15.4. Any illegality, unenforceability or invalidity of a provision of these Terms does not affect the legality, enforceability or validity of the remaining provisions of these Terms.
15.5. These Terms and any Contract to which they apply are governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.
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