Terms of Trade
Tech Solutions for Business (a Division of Noel Leeming Group)
1 How to order Goods and Services
To order Goods and/or Services from Tech Solutions for Business, a division of Noel Leeming Group Limited (“us”, “we”) you need to be currently approved by us for credit purposes, unless we reach an alternative payment arrangement with you. We will advise you promptly if we approve you for credit purposes or withdraw our approval.
To place orders on a casual basis:
(a) you (or the End User if you are Leasing) must:
• discuss requirements including preferred delivery dates with us; and
• for Goods, and for Services required to establish a Network, request our quotation (which remains current for 30 days from its date and is an invitation to treat only, not an offer to supply at the quoted price); and
(b) you must place an order (an Order) with us.
We will advise you promptly of whether we accept your Order.
To receive Services from us regularly, you must:
(a) discuss your requirements with us; and
(b) enter into a Master Relationship Agreement with Services Schedules with us (a MRA).
2 Application of Terms of Trade
All Goods and Services that we supply to you (whether in relation to an Order, a Managed Service Agreement (MSA), MRA or otherwise) are subject to these Terms of Trade. In addition, all Services that we supply under a MSA or MRA are subject to the terms of that MSA or MRA.
These Terms of Trade and any current MSA or MRA prevail over any document issued by you or on your behalf, even if purported to be accepted by us.
To the extent that there is any inconsistency between these Terms of Trade and any current MSA or MRA, the MSA or MRA (as the case may be) will prevail.
3 Our commitment to you
In providing Goods and Services to you, we will endeavour to: act at all times responsibly, have regard to your interests, and meet the express requirements set out in the MSA or MRA.
4 Your facilities
To help us provide you with Goods and Services you must:
(a) ensure that we have full remote and physical access to any Goods we have supplied to you, and to your (or, if applicable, the End User’s) computer system, computer equipment and backup facilities, as reasonably required;
(b) ensure that you have any necessary authorisations for any computer software that you (or the End User), use on the computer system, equipment or facilities;
(c) ensure that suitable backups are carried out regularly and stored offsite;
(d) report to us details of any changes, in advance, to its hardware, software or equipment that may impact on our ability to provide the Services;
(e) ensure that any computers operated as servers and any active hubs are connected to the mains through an uninterruptible power supply of a suitable size and type;
(f) ensure that all consumables (including printer ribbons, ink cartridges and toner cartridges) used by the Client’s computers or other equipment conform to the relevant manufacturers’ specifications;
(g) ensure that your representative (or, if applicable, the End User’s representative) is on site at the same time as our representative; and
(h) ensure that we have all the information (and that such information is complete, accurate and given in good faith), facilities and services that we reasonably request or require to perform our obligations, and ensure that we receive help to ascertain the cause of any faults in any Goods, in your (or, if applicable, the End User’s) computer system, or in any other goods or equipment. This obligation includes prompt access and information as necessary to verify your compliance with the requirements of these Terms of Trade and any agreement with us at any time.
Whenever we accept an Order, we will endeavour to deliver the Goods to your premises (or, if applicable, the End User’s premises) and to perform the Services by the time that you (or the End User) and we agree. However, we will not be liable for any failure to deliver all or any part of the Goods or Services, or for any delay in delivery.
You must ensure that delivery of Goods is not refused except where we have first agreed in writing to the refusal.
Our prices are:
(a) for accepted Orders where we have provided a quotation for the relevant Goods and/or Services within the 30 days before the Order was placed, that quotation, plus GST and any other taxes and transport costs;
(b) for all other accepted Orders, our prevailing hourly rate at the date of supply, including for any travel to and from your (or any End User’s) site, plus GST and any other taxes or transport costs. Our hourly rate will be rounded to the next fifth of an hour, except that:
• our minimum charge for Services is 0.3 hours;
• our minimum charge for onsite Service is 0.8 hours, excluding travel time; and
• a surcharge of one half will apply to Services provided outside Working Hours.
(c) for Services under any current MSA or MRA, the amounts set out in that MSA or MRA, (together the Prices).
Due Dates: Unless we agree otherwise in writing, you must pay us the Prices of all Goods and Services in accordance with the following timetable (the Due Dates)
(a) for all amounts relating to product or projects the Price of the Goods or Services by the 20th of the month following the date of our invoice;
(b) for all amounts payable under a MSA or MRA, monthly fees are to be paid in advance by monthly automatic payment or direct credit to our nominated bank account, and for other amounts within 7 days of invoice or otherwise in accordance with the dates set out in the MSA or MRA (as applicable).
Note: Payments must be made in cleared and immediately available funds, without set-off, counterclaim, deduction or withholding, except as required bylaw. All payments are non-refundable.
(c) GST: GST means goods and services tax in terms of the Goods and Services Tax Act 1985 and any relevant amendments, at the rate prevailing from time to time. Prices, charges or fees do not include GST unless expressly stated as such. You will pay us the amount of all GST chargeable on any taxable supply.
Failure to pay by the Due Dates: If you do not pay us by the Due Dates (whether in relation to an Order, a MSA or MRA) you will be in default, and we may without prejudice to any other right or remedy including the recovery of costs incurred in pursuing the outstanding debt:
(a) charge you default interest of 5% per month calculated on a daily basis on the overdue amount, from the due date until the date when payment is made. The charging of default interest does not imply the granting or an extension of credit;
(b) recover from you (as a debt owing) all costs incurred in attempting to obtain payment, including legal costs (on a solicitor and own client basis), debt collection costs and administrative charges;
(c) as your irrevocably appointed agent for the purposes of this clause, enter any premises where we reasonably believe Goods are stored and remove them. We will not be responsible for, and you indemnify us against, any damage caused or loss or liability incurred in entering the premises or removing Goods. We may resell the Goods and apply the proceeds to reduce the amount that you owe us; and
(a) exercise any of our remedies for default under clause 12 or at law.
(b) you must ensure they are stored so they are clearly identifiable as belonging to us;
(c) you may (unless we advise you otherwise, or you have breached these Terms of Trade, MSA or MRA) use, lease at market rates, or sell for full value, the Goods in the ordinary course of your business. If you lease or sell the Goods, you must hold the proceeds (separately and in identifiable form) in trust for us, and pay them into a bank account nominated by us if we request this;
(d) except as provided in clause 9.3(b), you must not grant anyone any interest in or charge over the Goods; and
(e) you must insure the Goods at your cost, naming us as loss payee, for full replacement cost against all risks. We may apply the proceeds of any insurance payment to reduce the amount that you owe us.
8 Information about you
You authorise us to:
(a) collect and hold personal and credit information about you from any source we consider appropriate. We may use this information to determine your credit worthiness, credit history or credit capacity, for debt collection or any related purpose, or for providing you with information about our Goods and Services; and
(b) disclose the personal and credit information to anyone else (including our related parties and shareholders) for the purposes set out in clause 8.1(a).
You must notify us of any change in circumstances that may affect the accuracy of any personal or credit information that we have collected about you under these Terms of Trade.
If you are an individual (i.e. a natural person), you may access and request correction of any personal information that we hold about you as an identifiable individual, subject to the restrictions in the Privacy Act 1993.
9 Risk and ownership of Goods
Risk of loss, deterioration or damage from any cause, of any Goods that we supply to you, passes to you on delivery of the Goods to you (or on delivery of the Goods to the End User, if we deliver them to an End User).
We retain ownership of the Goods until you have paid us all amounts that you owe us in relation to all Goods and Services that we have supplied to you. If any Goods are mixed or commingled (as defined in the Personal Property Securities Act 1999) (PPSA) with other goods before payment, we will own the resulting mixed or commingled goods as if they were Goods that we had supplied.
After delivery, but while ownership of Goods remains with us: You:
(a) will promptly sign any further documents, provide any further information, or do any other thing that we reasonably require to perfect and maintain the perfection of our security interest (including by registering a financing statement or financing change statement);
(b) indemnify (and if requested reimburse) us for all expenses that we incur in registering a financing statement or financing change statement or releasing Goods charged by the statement; and
(c) will give us 14 days’ prior written notice of any change in your name, address, contact details, trading name, business practice or any other details, and use your best endeavours to ensure that any applicable financing change statement is registered disclosing your new details.
To the fullest extent permitted by law, you and we contract out of section 114(1)(a) of the PPSA, and out of your rights referred to in sections 107(2)(c), (d), (h), and (i) of the PPSA. If and for so long as we are not the secured party with priority over all other secured parties in respect of any particular Goods, you and we agree that section 109(1) of the PPSA does not apply to those particular Goods.
10 Personal Property Securities Act 1999
You acknowledge that:
(a) these Terms of Trade are a security agreement for the purposes of section 36 of the PPSA;
(b) we take a security interest in all Goods that we have previously supplied to you (if any) and all Goods that we will supply to you in the future, to secure (with equal priority) payment of all amounts that you owe us;
(c) the security interest will continue until you have paid all amounts owing; and
(d) you waive your right to receive a verification statement under section 148 of the PPSA.
11 Warranties and liability
We warrant that if, due to our fault, any Network that we establish does not allow the Goods in that Network to function simultaneously during the 30 days immediately following the Commissioning Date for the number of users specified in our quotation, and you notify (or, if applicable, the End User notifies) us of the fault, we will remedy the fault free of charge.
Where Goods are covered by a manufacturer’s warranty we will endeavor to ensure that any faults in the Goods that are notified to us are attended to quickly by the manufacturer. However, to the extent that we are not reimbursed by the manufacturer, we will charge you for our Services in attending to the faults.
Subject to clauses 11.1 and 11.2, all warranties, representations and conditions relating to the Goods and Services, whether express or implied, whenever arising, and whether originating by statute, law, trade, custom or otherwise, are expressly excluded to the fullest extent permitted by law, including but not limited to warranties of merchantability, satisfactory quality and fitness for a particular purpose. In particular:
(a) we do not warrant that the Goods will be error-free or that we will be able to correct all errors in the Goods, any Network, or your (or, if applicable, the End User’s) computer system;
(b) you acknowledge that the Goods and Services are acquired for the purposes of a business, and that the Consumer Guarantees Act 1993 will not apply;
(c) you are responsible for ensuring that the Goods or Services are suitable for your business needs and generally meet your requirements;
(d) you will indemnify us and keep us indemnified against all costs (including legal costs on a client and own solicitor basis), expenses, damages, losses (including loss of profits, data or business opportunity) that we suffer or incur as a result of any claim by an End User, whether in tort (including negligence), breach of statutory duty, equity or otherwise.
To the maximum extent permitted by law, we shall not be liable (in contract, tort or otherwise) for any direct, indirect, special, incidental or consequential loss, damage, cost, expense, delay, or inconvenience (including lost profits, opportunity, data, or interruption of business) suffered or incurred by you or any End User or other party arising out of or in connection with these Terms of Trade, an Order, MSA, MRA or other agreement with you, or the Goods or Services.
If, despite the other provisions of these Terms of Trade, MSA, MRA or other agreement with you we are found to be liable to you, then our liability is limited to an amount equal to the price you paid for the particular Good or Service in respect of which the liability arises, and in the case of Goods or Services with recurring charges, our liability is limited to one month’s worth of charges for the applicable Good or Service.
12 Default and termination
You or we may terminate for convenience any or all of the Services Schedules under a MRA on 90 days’ notice in writing to the other, given at any time after the expiry of the initial term of the applicable Services Schedule. A MRA may be terminated by you or us on 30 days’ notice in writing where there are no Services Schedules then in force.
If you, acting reasonably, notify us that Services are not being provided to a reasonably professional standard in relation to any express requirements set out in the applicable Services Schedule, we will endeavour to agree a service improvement plan with agreed deliverables with you for the next 30 days. If following the period of 30 days, you reasonably consider that Services have not improved to a reasonably professional standard; this will qualify as ‘cause to terminate’ and you may terminate the applicable Services Schedule by 30 days written notice to us.
If we have reasonable grounds to believe that:
(a) you are in default of these Terms of Trade, a MSA or MRA;
(b) you have become insolvent or have ceased or threatened to cease to carry on all or substantially all of your business or operations;
(c) a receiver or manager has been appointed in respect of any part or the whole of the your assets or business;
(d) any resolution has been passed or proceedings have been commenced to wind you up; or
(e) you have entered into a formal proposal for compromise with creditors under the Companies Act 1993,
we may, in addition to and without prejudice to any other rights or remedies we may have:
(f) not supply you with any more Goods or Services, or suspend or defer supplying you with them until the situation is remedied or you give suitable undertakings and security satisfactory to us; and
(g) treat any Order or MSA or MRA (or part thereof) as having been cancelled or terminated by you; and
(h) enforce our security interest in the Goods.
If we withdraw our approval of you for credit purposes, we may treat any MSA or MRA (or part thereof) as having been cancelled or terminated by you.
Termination or cancellation of any Order, MSA or MRA (or part thereof) will not affect the rights, powers, remedies, obligations, duties and liabilities of either party which have accrued before termination or expiry or are intended to survive termination.
Each of you and us shall promptly return to the other all documents, materials and other items (including software) belonging to the other and in its possession or under its control at the time of termination.
Following termination we may at our discretion charge an early termination fee for any losses or charges incurred by us as a result of the termination. In the case of recurring monthly Services, this fee may be the amount of any monthly fee times the number of months of the term remaining.
13 Intellectual property
You acknowledge that we (or our supplier) are the sole owner of all intellectual property (including business know-how, ideas, methodologies, routines, systems and processes) relating to or arising, directly or indirectly, out of the Goods and Services that we supply to you, or developed or contributed to by us in relation to any information, fault, repair or documentation that we supply to you, or as a result of us performing Services or any other work for you. This includes all information that describes the Goods or Services, our (or our supplier’s) procedures, access rules, activation guides, use and other policies, facilities, methods, systems and servers. Nothing in this agreement prevents us from using our skills, ideas, techniques, experience, know-how and methodologies in the future.
14 Confidentiality and publicity
Each party agrees to always keep the other party’s Confidential Material confidential and not to:
(a) use the Confidential Material for any purpose other than for the purpose for which it was supplied; or
(b) copy or reproduce any of the Confidential Material in any way,
except where disclosure is necessary to enable an End User to use Goods or Services under lease, or where the party that owns the Confidential Material has consented to disclosure.
On request, each party will ensure that any Confidential Material (including any copies of it) that it possesses or controls (and, where that party is a Lessor, that an End User possesses or controls) and that belongs to other party is returned to that other party.
In the event that you would like to publically disclose (except as may be required by law or regulation) any aspect of these Terms or Trade, a MSA, MRA or other agreement with us or it’s subject matter (e.g. a press release), we must first agree in writing the manner and time of such disclosure. You agree that we may use your name, logo and any testimonial you provide in our promotional material and communications including, but not limited to, proposals, presentations, website and corporate brochure.
15 Resolving Disputes
The parties will use all reasonable endeavours to resolve any dispute between them. If the parties cannot resolve the dispute between themselves, they will refer the dispute to mediation, which will be conducted in Terms of Trade of the LEADR New Zealand Inc. standard mediation agreement.
Nothing in this clause will preclude either party from taking immediate steps to seek urgent equitable relief before an appropriate court.
Employees and contractors: During the term that we provide Goods and/or Services to you and for six months thereafter, you will not, whether directly, indirectly through an associated company, or otherwise, solicit for employment any person who we have employed or contracted. You and we agree that this restraint of trade is reasonable in all the circumstances. However, should we agree to waive this provision, you agree to pay us a Recruitment Fee comprising 35% of the employee’s current remuneration package (including all benefits and on-target incentives contracted to be received by the employee). You and we agree to accept any modification to duration or other which a court of competent jurisdiction finds may be required to make the restraint enforceable.
Entire agreement: These Terms of Trade, and any current MSA or MRA, constitute the entire agreement between you and us in relation to their subject matter. They supersede all earlier negotiations, representations, warranties, proposals, communications, understandings and agreements.
Amendments: You may amend, replace or cancel these Terms of Trade or any current MSA or MRA with our prior written agreement (but not otherwise). We may amend, replace or cancel these Terms of Trade or any current MSA or MRA by giving you one month’s written notice of the change, or by posting the change at www.ts4b.co.nz.
Force majeure: We are not required to perform any obligation under these Terms of Trade, a MSA or MRA if prevented from doing so by any event beyond our reasonable control, including the failure of any third party supplier or contractor. If we cannot fulfil our obligations under any Order, MSA or MRA for more than 30 days because of this event, either you or we may immediately cancel that Order, MSA or MRA by written notice to the other party.
No waiver: Any exercise or failure to exercise any right or remedy available to us does not limit our rights to exercise that or any other remedy. A waiver of any of these Terms of Trade must be in writing and signed by one of our authorised officers.
Relationship: You and we are independent contractors. Nothing in these Terms of Trade, any MSA or MRA should be interpreted as constituting you our agent, partner, contractor, officer or employee. You are not entitled to enter into any obligations on our behalf without our express written consent.
Notices: Notices under these Terms of Trade , a MSA or MRA, or that are required by statute, law or regulation, must (unless otherwise provided) be in writing and delivered by hand, prepaid mail or facsimile to the principal business address of the person being notified. The notice will be deemed to have been received at the time when actually delivered if delivered by hand, upon confirmation of successful transmission if sent by facsimile, or 3 days after posting if sent by mail.
Assignment and subcontracting: You may assign or transfer your benefits or obligations under these Terms of Trade or any current MSA or MRA with our prior written consent (but not otherwise). We may assign or subcontract our benefits or obligations (or both) under these Terms of Trade, a MSA or MRA.
Partial invalidity: If any part of these Terms of Trade, any MSA or MRA, or their application is or becomes invalid or unenforceable, the remainder will remain enforceable to the greatest extent permitted by law.
Express rights: Our exercise of any express right set out in these Terms of Trade is without prejudice to any other rights, powers or remedies available to us in contract, at law or in equity, including any rights, powers or remedies which would be available to us if the express right was not set out in these Terms of Trade.
Third parties: These Terms of Trade do not create any obligations enforceable by any third party, including any End User.
Counterparts: A MSA or MRA or any other document may be executed and exchanged in any number of counterparts (including scanned, facsimile or email copies) each of which is deemed an original, but all of which together constitute a binding and enforceable agreement between the parties.
Definitions: In these Terms of Trade:
Confidential Material means:
(a) all information and other material relating to our business, employees, Goods and Services which we make available, or have previously made available to you; or
(b) any report or material which we produce as a direct or indirect result of any work that we carry out for you, and anything that you derive from this information and material;
but excluding everything which:
(c) is generally available to the public (but not because you or anyone you are responsible for has disclosed it or allowed it to be disclosed); or
(d) you or a third party have independently developed or acquired, except where this was derived from information sourced from us which otherwise comes within this definition of Confidential Material.
Goods means all goods that we supply to you from time to time, provided that:
(a) (but solely for the purpose of the application of the
PPSA) where the goods supplied are your inventory, all references to Goods shall, in respect of those goods, be read as references to inventory while they are held as inventory; and
(b) where the goods supplied are not or are no longer held as your inventory, all references to Goods shall, in respect of those goods, mean the goods described in any relevant order form, packing slip or invoice (or its equivalent, whatever called) prepared by us and relating to those goods, on the basis that each such order form, packing slip or invoice (or its equivalent) is deemed to be assented to by you, incorporated in, and form part of, these Terms of Trade, and (unless the context requires otherwise) includes all proceeds of such Goods and any product or mass which the Goods subsequently become part of.
Working Hours means the hours between 8.30 am and 5.00pm on a Working Day.
Working Day means Monday to Friday, excluding public holidays observed in Auckland.
Grammar: where any term defined in these Terms of Trade or any other document takes a different form for reasons of grammar, the different form has a corresponding meaning, and singular will include plural and vice versa;
Headings: headings appear for convenience and do not affect the construction of these Terms of Trade;
Including: a reference to “including” or “includes” means without limitation;
Legislation: reference to a statute or regulation will include all amendments and re-enactments thereof and any subordinate legislation made thereunder;
Negative Obligations: a reference to a prohibition against you doing any thing includes a reference to you not permitting, suffering or causing that thing to be done;
Parties: a reference to a party to these Terms of Trade or any other document includes that party’s personal representatives/successors and permitted assigns;
Person: a reference to a person includes individuals, a corporation sole, and a body of persons, whether corporate or unincorporate, governmental and regulatory bodies and other entities, in each case whether having separate legal personality or not.