In these terms and conditions:
“Contract” means the contract between the Customer and the Supplier for the provision of Goods and/or Services by the Supplier of which these terms and conditions form part.
“Customer” means the person to whom the Goods and/or Services are to be supplied.
“Fee” means where a quote or estimate has been given, the fee for the work recorded in that quote; and/or the Supplier’s usual charges for completing the work plus additional charges pursuant to these terms and conditions, plus GST.
“Goods” includes any software, hardware and/or equipment supplied by a third party or the Supplier.
“Property” means the property, premises, site or location where the Goods and/or Services are to be delivered and/or the Services provided by the Supplier.
“Quote” means any quotation or estimate provided by or on behalf of the Supplier.
“Secured Goods” means the Goods referred to in clauses 9.5.1 – 9.5.3.
“Supplier” means IT Simply Limited, its assignors and/or successors.
“Work” includes all Goods and Services supplied or required to be supplied by the Supplier in the course of performance of the Contract.
2. Acceptance of Terms and Conditions
Contracting the Supplier to carry out work or acceptance of a quote provided by the Supplier constitutes acceptance by the Customer of these terms and conditions.
2.1 In the event of any conflict of meaning, or ambiguity, the documents which comprise this agreement shall have the order of precedence set out below:
2.1.2. Any written variation to the schedule(s) agreed between the parties. Any such variations shall have the order of precedence of the later variation prevailing over any inconsistent earlier variation;
2.1.3. The schedule(s) to this agreement;
2.1.4. These terms and conditions.
3.1. The Customer shall pay to the Supplier on a time and materials basis, invoices issued for work undertaken in accordance with Clause 6 below, unless prior alternative arrangements are made and agreed in writing.
3.2. All Goods and Services are supplied at the Fee applicable at the date an order is confirmed and the Supplier reserves the right to pass on to the Customer any change in Fee from any third-party supplier between the date the customer order is confirmed and the date the Supplier confirms the order with a third party supplier (if required).
4. Quotes and Estimates
4.1. All Quotes and estimates are provided strictly on the following basis:
4.1.1. If additional work is required that could not be foreseen by the Supplier at the time of providing the quote, then the Supplier may at its option either cancel this contract or charge for such additional work at the Supplier’s usual rate. Additional work will be agreed in writing.
4.1.2. Any Quote is only valid for seven (7) days from the date of the quote unless otherwise agreed.
4.1.3. Due to changes in exchange rates, interest rates and prices of third party suppliers, the Supplier reserves the right to change the pricing in Quotes and estimates provided to the Customer. We will notify you in writing as soon as possible once we discover or are advised of a change in pricing.
No variations to the work originally contracted for shall be carried out without the agreement of both the Customer and the Supplier. Where the Customer and the Supplier have agreed to a variation the Supplier will be entitled to charge for the work involved in such variation at the Supplier’s usual rate.
6.1. The Supplier may issue one or more invoice(s) to the Customer for Work completed and materials supplied for the previous month if a fixed fee payable in advance is not required.
6.2. The Customer shall pay the Fee as recorded in the invoice by the 20th of the month following the date of any invoice issued by the Supplier.
6.3. If full payment is not made by the Customer to the Supplier in accordance with clause 6.2 above then the Customer will be in default under this Contract and otherwise available at law; and
6.3.1. The Customer will pay interest on the default monies at the rate of 2% above the prevailing BNZ Home Loan rate per annum at the time of default, payable on a daily basis from the due date; and
6.3.2. The Customer will be liable for all expenses (including solicitor – own client legal costs) incurred by the Supplier as a result of the default; and
6.3.3. The Supplier may withhold the further supply of Goods and Services.
7. Validity of Payment
7.1. The Customer acknowledges that:
7.1.1. All payments made to the Customer’s account with the Supplier are in the ordinary course of the Customer’s business; and
7.1.2. All payments to the Customer’s account are received by the Supplier on the reasonably held belief that those payments are valid unless the Customer advises otherwise in writing; and
7.1.3. By accepting any payments on or after the due date for payment the Supplier has altered its position in reliance on the validity of those payments.
8.1. The Supplier warrants that if any defect in any workmanship or service provided by the Supplier becomes apparent and is reported to the Supplier within three (3) months of the date of delivery or completion of the service, then the Supplier will either replace or remedy the defect. However:
8.1.1. The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
22.214.171.124. Failure on the part of the customer to properly maintain any goods, system or services; or
126.96.36.199. Failure on the part of the customer to follow any instructions or guidelines provided by the supplier; or
188.8.131.52. Any use of any goods or services otherwise than for any application specified on a quote or order form; or
184.108.40.206. The continued use of any goods or services after any defect becomes apparent or would have become apparent to a reasonably prudent operation or user; or
220.127.116.11. Fair wear and tear, any accident or force majeure.
8.1.2. For goods or services not manufactured by the Supplier, the warranty shall be the current warranty provided by the manufacturer of the goods or services. The supplier 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.
9.1. Property in and ownership of Goods remains in the Supplier until all money the Customer owes to the Supplier (whether under this contract or otherwise) has been paid in full or until property in the Goods has passed to a third party in accordance with this clause.
9.2. The Customer is a fiduciary for the Supplier and has a fiduciary duty to account to the Supplier for the Goods. If the Goods are sold, the Customer receives the proceeds of sale as a trustee for the Supplier and will place the proceeds of the sale in a separate bank account for the benefit of the Supplier. The Customer has no right to assert against the Supplier that it owns the Goods or the proceeds of sale of the Goods or any part of them.
9.3. If the Supplier’s Goods become mixed with or incorporated in any goods, property or materials in such a way that they cease to exist as separate Goods, the original ownership of the new Goods created by that mixing will vest immediately on creation in the Supplier as co-owner of the new Goods with the owner of any other materials which become part of the new Goods. The co-ownership will be calculated proportionally to the value of the various component materials. The Supplier’s ownership of the new Goods is otherwise on the same terms as the ownership of the Goods originally supplied.
9.4. If the Customer is in default under these terms and conditions or if one of the events described in clause 17.1.2 occurs, the Customer will at the Supplier’s request:
9.4.1. Re-deliver the Goods to the Supplier or do anything reasonably necessary to allow the Supplier to retake possession of them; and
9.4.2. Instruct any third parties who owe money in respect of the Goods to pay that money directly to the Supplier; and
9.4.3. Make any records available which may assist the Supplier to trace the proceeds of sale of the Goods.
9.5. The Customer hereby grants a Security interest to the Supplier in respect of:
9.5.1. The Goods; and
9.5.2. Any new Goods in terms of clause 9.3; and
9.5.3. Any other Goods or personal property owned by the Customer that have been installed or worked on by the Supplier or which are required for the completion of the work.
(“the Secured Goods”)
9.6. If the Customer is in default under these terms and conditions or if one of the events described in clause 17.1.2 occurs, then the Supplier will be entitled without notice to repossess the secured Goods. The Customer authorises the Supplier or its representatives, servants, agents or employees to enter the Property where the Secured Goods are situated for the purpose of repossession. The Supplier will not be liable for any costs, expenses, damage, loss of any kind suffered by the Customer as a result of repossession.
9.7. If the Supplier takes possession of the Secured Goods or the proceeds and after deduction of all money the Customer owes to the Supplier (including any interest due and including any expense occurred by the Supplier in enforcing its rights including legal expenses as between solicitor and client) there is a surplus, the Supplier will pay that surplus to the Customer.
10. Intellectual Property
The Supplier and Customer agree that the Supplier retains all ownership rights in all intellectual property of any kind created by the Supplier for the Customer. The Customer may not reproduce or provide anything created by the Supplier to any third party without the Supplier’s express consent.
11. Personal Property Securities Act 1999 (“PPSA”)
11.1. The Customer acknowledges the Supplier’s security interest in the Secured Goods (“Collateral”) supplied to the Customer but not paid for under these terms and conditions.
11.2. The Supplier reserves the right at its discretion to register a financing statement in respect of each category or Goods supplied to the Customer which comprises collateral. On the request by the Supplier the Customer shall promptly execute any documents and do anything else required by the Supplier to ensure that the Supplier’s security interest in the collateral created by these terms and conditions constitutes a perfected security interest over the Goods comprising collateral.
11.3. The Customer shall not agree to allow any person to file a financing statement over the collateral without the prior consent of the Supplier and shall notify the Supplier immediately if it becomes aware of any person taking steps to file a financing statement against any of the collateral.
11.4. The Customer and guarantor (if any):
11.4.1. Agree(s) that nothing in s114(1)(a), 117(1), 133, and 134 of the PPSA will apply to these terms and conditions; and
11.4.2. Waive(s) the Customer’s right to do any of the following:
18.104.22.168. Object to the Supplier’s proposal to retain any personal property under s121 of the PPSA;
22.214.171.124. Not have Goods damaged when the Supplier removes an accession under s125 of the PPSA;
126.96.36.199. Receive notice of the removal of an accession under s129 of the PPSA;
188.8.131.52. Apply to the Court for an order concerning the removal of an accession under s131 of the PPSA;
184.108.40.206. To receive a copy of the verification statement confirming registration of a financing statement or a financing change statement relating to the security interest created by these terms and conditions.
12. Consumer Guarantees Act
12.1. Where the Supplier is supplying Goods and Services to the Customer for business purposes within the meaning of the Consumer Guarantees Act 1993, pursuant to Section 43 the provisions of that Act will not apply to this contract.
12.2. Where the Supplier is supplying Goods and Services to the Customer other than for business purposes the provisions of clauses 8.2 - 8.5 above will have no effect and the provisions of the Consumer Guarantees Act 1993 will apply.
12.3. Where the Customer supplies the Goods on to a person acquiring them for business purposes it will be a term of the Customer’s contract with the buyer of the Goods that the Consumer Guarantees Act 1993 will not apply in respect of the Goods.
13. Information and Privacy Act
13.1. For the purpose of facilitating the efficient running of the Supplier’s business, the Customer authorises the Supplier:
13.1.1. To collect all information it may require from any third parties and authorises those third parties to release that information to the Supplier; and
13.1.2. To hold all information given by the Customer or any third parties to the Supplier; and
13.1.3. To use that information, including giving information to any other person to facilitate collection of debts from the Customer.
13.2. The information will be collected, held and used on the condition that:
13.2.1. It will be held securely by the Supplier; and
13.2.2. It will be accessible to any of the Supplier’s employees and agents who need access to it for the efficient running of the Supplier’s business; and
13.2.3. The Customer may request access to and correction of it at any time.
13.2.4. The Supplier will destroy or return the information to the Customer if requested.
14. Waiver and Forbearance
All the Supplier’s rights will remain in full force despite any delay in enforcement. The Supplier will not be deemed to have waived any condition unless that waiver is in writing and signed by a duly authorised officer of the Supplier. Any waiver will apply only to the particular matter in respect of which it is given.
15.1. The Supplier is entitled at any time to assign its rights under the contract. The assignee will be entitled to claim full rights of set off or counter claim against the Customer, its charge holders or successors in respect of the debt or part of the debt which is assigned. The Supplier will provide notice to the Customer of any assignment of its rights under the contract where reasonably possible.
15.2. The Customer may not sell, transfer, assign or sub-contract all or any part of his or her interest in this agreement without the express written consent of the Supplier, such consent not to be reasonably withheld. For the purposes of this clause, a merger with another entity shall be deemed to be an assignment.
16. Entire Contract
The Supplier and Customer agree that these terms express the complete agreement between them. There has been no representation made by either party to the other except as expressly set out in this document. There is no inconsistency with the terms of any order that may be lodged by the Customer. If there is any inconsistency then any such order will be of no effect. This contract will not be subject to change or modification except with the prior written consent of both parties.
17.1. This contract (including any unperformed obligations of the Supplier) may be terminated by the Supplier’s written notice to the Customer that no further Goods and Services will be supplied due to:
17.1.1. The Customer’s default under the contract; or
17.1.2. The Customer becoming insolvent; or being subject to the appointment of a receiver, manager, liquidator, or statutory manager; or committing an act of bankruptcy or making a scheme of arrangement with its creditors; or being unlikely to be able to meet its obligations to the Supplier (in the opinion of the Supplier).
17.2. The agreements of the parties will not merge with termination under this clause.
18.1. If either party considers that there is a dispute in respect of matters arising out of these Terms and Conditions, then that party shall immediately give notice to the other party setting out details of the dispute. The parties shall endeavour in good faith to resolve the dispute between themselves within thirty (30) days of notice of the dispute. Failing resolution, the parties will commence mediation to resolve the dispute if required by either party.
18.2. The Supplier is a corporate member of IT Professionals NZ (ITP NZ) which provides a mandatory code outlining ethical and professional requirements for IT professionals in New Zealand. If the Customer believes that the Supplier has not acted ethically in any aspect of the service, then the Customer should contact ITP NZ to make a complaint to ITP NZ and receive their advice in regard to disciplinary procedures available.